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LRH-2012-446-TUS

Published Oct. 28, 2012
Expiration date: 9/27/2012

PUBLIC NOTICE: The purpose of this public notice is to inform you of a proposal for work in which you might be interested.  It is also 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.

 

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act.   This notice serves as the Corps of Engineers’ request to the Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application.

 

APPLICANT:           Diebold, Incorporated                  Union Square Investments, Ltd.

                              5995 Mayfair Road                       821 South Main Street

                              North Canton, Ohio 44720           North Canton, Ohio 44720

 

LOCATION:  The proposed project is located in unnamed tributaries to the Tuscarawas River and their adjacent wetlands northeast of the intersection of Massillon Road and Wise Road in Green, Summit County, Ohio. The project is located near latitude 40.9493 and longitude -81.4557

 

DESCRIPTION OF PROPOSED WORK:  The co-applicants propose to discharge fill material into waters of the United States in association with the construction of the Union Square/Diebold mixed-use development project.  The stated purpose of the project is to construct a mixed-use corporate campus to include the Diebold World Headquarters and additional office space with hotel, retail, and residential components.  The construction of buildings, parking lots, access roads, and storm water management basins will require the discharge of fill material into waters of the United States including wetland fills, stream fills, stream culverting, stream relocations, and the filling of one impoundment.  The co-applicants propose to discharge an estimated 15,833 cubic yards of clean fill material into a total of 2,212 linear feet of eight unnamed tributaries to the Tuscarawas River (Streams 1, 2, 4, 5, 5a, 5b, 6, and 12), 0.083 acre of one impoundment (Retention Basin 2), and 6.317 acres of twelve wetlands (Wetlands B, C, D, G, J, M, N, O, Q, R, T, and U).  Specifics regarding the proposed impacts can be found in the work plans attached to this notice.  It has been determined the following waters are not waters of the United States and are not subject to regulation under Section 404 of the Clean Water Act: Wetlands E, F, K, L, P, and W; Retention Basin 1 with non-jurisdictional swale; Retention Basin 3; and the 0.130 acre pond. 

 

ALTERNATIVES ANALYSIS:   A total of 6.317 acres of jurisdictional wetlands would be filled as a result of the proposal.  The project does not require access or proximity to or siting within the wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternatives analysis that must overcome the presumption prior to receiving authorization for the placement of fill material.  The co-applicants have submitted the required alternatives analysis and it is currently under review. 

A complete copy of the alternative analysis can be reviewed, by appointment, at the following locations: 

 

United States Army Corps of Engineers                    United States Army Corps of Engineers

Dover Regulatory Field Office                                   502 Eighth Street

5336 State Route 800, NE                                          Huntington, West Virginia 25701

Dover, Ohio 44622                                                     (304) 529-5210

(330) 364-6177

 

No permit will be issued until our review of the alternative analysis clearly shows that upland alternatives are not available to achieve the co-applicants’ purpose and need for the proposed project.

 

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on these sites. A total of 6,539 linear feet of eight ephemeral; five intermittent; and two perennial streams; one 0.083 acre impoundment, and 15.032 acres of seventeen wetlands subject to Section 404 Clean Water Act regulation exist on the project site.  According to the co-applicants, alternative plans were considered, including alternative locations for the proposed Diebold World Headquarters portion of the mixed use development project.  The co-applicants’ preferred project design would impact a total of 3,845 linear feet of seven ephemeral, four intermittent, and one perennial stream; one 0.083 acre impoundment, and 6.744 acres of fifteen wetlands.  The proposed project has been re-designed to minimize aquatic impacts. The relocation of storm water retention ponds, the use of 3-sided culverts for interior road stream crossings, and a reduction of residential and commercial development allowed for the reduction in aquatic impacts.  Overall stream impacts were reduced from 3,845 linear feet to 2,212 linear feet.  The 2,212 linear feet of stream impact consists of the discharge of fill material into five ephemeral and three intermittent streams.  Impacts to Stream 1 were reduced from 1,148 linear feet to 998 linear feet and the project design modified to allow for the relocation of Stream 1 versus the originally planned enclosure.  Impacts to Stream 5 upstream of Town Park Boulevard were fully avoided reducing the impact length of Stream 5 from 1,480 linear feet to 770 linear feet.  In addition, impacts to Streams 7, 8, 9, and 10 were fully avoided.  By avoiding impacts to Stream 10, the project has been modified such that no perennial streams will be impacted.  Overall wetland impacts were reduced from 6.744 acres of fifteen wetlands to 6.317 acres of twelve wetlands.   Efforts were made to reduce the impacts to Wetland C, the highest quality wetland on the site.  Impacts to Wetland C were reduced from 0.826 acre to 0.480 acre.  In addition, impacts to Wetlands A, H, and I were fully avoided.  Impacts to Wetland M increased slightly to accommodate a round–about the City of Green has planned on Wise Road.  The co-applicants have indicated that the proposed impacts are unavoidable for the mixed-use development project.

 

COMPENSATORY MITIGATION PLAN: The co-applicants have submitted a conceptual mitigation plan to compensate for impacts to 2,212 linear feet of five ephemeral and three intermittent streams, one 0.083 acre impoundment, and 6.317 acres of twelve wetlands.   The co-applicants propose to compensate for unavoidable impacts to waters of the United States through a combination of three methods: (1) on-site preservation of wetland and stream resources with associated upland buffers, (2) preservation of off-site wetland and stream resources with associated buffer at the Sparrow Fen site in Lake Township, Stark County, and restoration and (3) enhancement of wetlands at the Little Stillwater wetland mitigation site located in Franklin Township, Harrison County.  The co-applicants propose to establish a 22.66 acre conservation area on-site which would include the avoided aquatic resources, a relocated stream, and adjacent buffers.  Approximately 4,327 linear feet of stream including 1,015 linear feet of two perennial streams would be preserved on-site.  Additionally, the on-site stream mitigation would consist of 965 linear feet of relocated Stream 1.  On-site wetland preservation encompasses 8.715 acres of wetland as well as an adjacent upland buffer.  The conservation area would be protected with either a conservation easement or an environmental covenant.  Off-site mitigation at the Sparrow Fen site would consist of the preservation of 2.191 acres of category 3 wetland (including a fen), 1,422 linear feet of Metzger Ditch riparian corridor, and 76 linear feet of an unnamed tributary to Metzger Ditch.  The 11.7 acre Sparrow Fen site would be protected with either a conservation easement or an environmental covenant and would be donated to a conservation organization for protection and management.  Off-site mitigation at the Little Stillwater wetland mitigation site would encompass the restoration of 6.6 acres of high quality forested and non-forested wetland through re-establishment. Additionally, 2.4 acres of existing low quality wet meadow wetlands would be enhanced.  The wetland restoration and enhancement would take place through the construction of a small berm, microtopography restoration, disruption of existing subsurface tiles, installation of ditch plugs, and supplemental plantings of native vegetation.  A permanent conservation easement would be placed on the approximate 11.5 acre site Little Stillwater wetland mitigation site and would be held by either the Harrison Soil and Water Conservation District or another entity that meets Ohio Revised Code Section 5301.69 requirements for conservation easement holders.     

 

WATER QUALITY CERTIFICATION:  A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain certification from the Ohio Environmental Protection Agency. 

HISTORIC & CULTURAL RESOURCES:  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the Register which would be directly affected by the proposed work.  The co-applicants have indicated they are in the process of preparing a Phase I Archaeological Survey for the project site. A copy of this public notice will be sent to the State Historic Preservation Office for their review.  In addition, a copy of the survey report will be furnished to the State Historic Preservation Office for review when it becomes available.  If we are made aware, as a result of comments received in response to this notice, or by other means, of specific archaeological, scientific, pre-historical, or historical sites or structures eligible or potentially eligible for inclusion on the NRHP which might be affected by the proposed work, the District Engineer will immediately take the appropriate action necessary pursuant to the National Historic Preservation Act of 1966.  Comments concerning archeological or historic concerns about a particular area should be based upon collected data.

 

THREATENED & ENDANGERED SPECIES:  The project is located within the known or historic range of the following threatened (T) or endangered (E) species: northern monkshood (T) and Indiana bat (E).  The Corps has consulted the most recently available information and information provided by the co-applicants and has determined the project site lacks suitable habitat for the northern monkshood.  Therefore, the Corps has determined the project would have no effect on the northern monkshood.  The project site contains successional woods, mowed field, an agricultural field, emergent wetlands, scrub/shrub wetlands, and forested wetlands.  Much of the northern and eastern portions of the site have been logged.  The forested areas are mainly young to mid-successional dominated by smaller trees with a few larger trees interspersed.  The understory ranges from moderate to dense.  After consultation with the United States Fish and Wildlife Service (USFWS), the applicant obtained an Indiana Bat Mist Net Survey for the project site.  The Indian bat was not found to be utilizing the site. Based on the results of the Bat Mist Net Survey, the Corps has determined the project may affect, but is not likely to adversely affect the Indiana bat.  Based on this information, the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. 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 issuance of a permit 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 activity.  This application will be reviewed in accordance with 33 CFR 320‑332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders.  Our evaluation will also follow the guidelines published by the United States Environmental Protection Agency pursuant to Section 404(b) (1) of the

CWA.  Interested parties are invited to state any objections they may have to the proposed work.  The decision whether to issue a permit will be based on an evaluation of the probable impact 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 that reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.  All factors that may be relevant to the proposal 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.  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.  A permit will be granted unless its issuance is found to be contrary to the public interest.

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 the impacts of this proposed activity.  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 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 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:

 

                        United States Army Corps of Engineers

                        Attn: CELRH-RD-N   Public Notice: LRH-2012-00446-TUS

                        502 8th Street

                        Huntington, West Virginia 25701-2070

 

Please note names and addresses of those who submit comments 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 Ms. Jean Siedel of the North Branch at 330-364-6177.