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LRH-0-52798-WAL

Published Nov. 2, 2012
Expiration date: 12/2/2012

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department ofthe 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: The Scotts Company 3875 South Elyria Road Shreve, Ohio 44676

LOCATION: The proposed project is located in Kiser Ditch and adjacent wetlands, within a 161.3-acre site located at 3875 South Elyria Road, in Shreve Township, Wayne County, Ohio (40.74563 ON, -82.07805°W).

DESCRIPTION OF PROPOSED WORK: On July 6, 1990, O.M. Scott and Sons received a 20-year permit for the temporary filling of wetlands associated with the harvesting and production of organic peat for commercial use. The project site consisted of a 181-acre wetland and a 40-acre upland processing plant and storage area, which were located at 3875 South Elyria Road, in Shreve Township, Wayne County, Ohio. Parceled into harvest cells, the peat mining activity was proposed to occur in 166 acres of the total 181-acre wetland. As mitigation, O.M. Scott and Sons was required to restore 17% of the harvested wetlands. Due to frequent flooding in the Kiser Ditch river valley, O.M. Scott and Sons was unable to complete the mining operation within the permitted 20-year timeframe. Mitigation for the completed authorized impacts has been fulfilled in accordance with the July 6, 1990 permit. The Scotts Company (Scotts) currently requests authorization to discharge dredged or fill material into 24.9 acres of wetland, 4.63 acres of jurisdictional deep water habitat, and 160 linear feet (0.03 acre) of perennial stream for the expansion and continuation oftheir peat mining operation over a 20-year period. The current 161.3-acre proposed project area occurs on the west side of Kiser Ditch where peat mining activities were unable to be completed under the 1990 authorization (reference the attached Sheet 2). The use of mechanized equipment (dozer) within waters ofthe United States will result in the discharge of fill material. The peat will be temporarily stockpiled within the wetlands for dewatering prior to removal to the upland processing plant. The following tables identify the location of waters of the United States the acreage, extraction amounts and discharges of fill material.

Preferred Alternative: Wetland Impacts

Location

 Acreage

Peat extraction (cubic yards)

Fill Material Discharged (cubic yards)

Cell I excavation (northern portion)

5.7

54,900

0

Cell I access road

0.1

0

675

Cell I berm cut and stabilization

0.3

215

105

 

 

Cell B excavation

5.5

63,800

0

Cell B access road

2.6

325

5,770

Cell B berm cut and stabilization

0.3

225

110

 

 

Cell E excavation

9.3

116,200

0

Cell E access road

0.8

1,290

455

Cell E berm cut and stabilization

0.3

220

110

TOTAL

24.9

237,175

7,225

 

Preferred Alternative: Deep Water Impacts

Location

Acreage

Peat extraction (cubic yards)

Fill Material Discharged (cubic yards)

Cell I excavation (northern portion)

1.6

2,600

0

Cell B excavation

0.5

6,500

0

Cell E excavation

2.5

21,000

0

Cell I access road

0.03

0

225

TOTAL

4.63

30,100

225

 

 

 

 

Preferred Alternative: Stream Impacts

 

Stream

 

Length / Area

 

Impact            Length / Area

 

Fill Material Discharged (cubic yards)

 

Ditch E/B (temporary crossing)

 

1,441 / 0.66

 

25 ft / 0.01 acre

 

60

 

Ditch E/I

 

3,127 / 1.44

 

0

 

 

 

Kiser Ditch (three berm cuts)

 

6,157 / 4.24

 

135 ft / 0.02 acre

 

35

 

TOTAL

 

10,725 / 6.34

 

160 ft / 0.03 acre

 

95

 

Work is proposed to be conducted in three phases, in three cells (Cells B, E, and I), and would be sequenced to allow the construction of mitigation areas concurrent with the mining activity. (Reference Sheet 4 and the Proposed Schedule of Work Table below.) The harvesting of peat from each cell will require the excavation of an opening in the eastern berm, along Kiser Ditch,

to promote the release of water from the cell. Peat within the actively mined cell will be disked, dewatered, and then stockpiled within the wetland to dry for up to 24 hours. The stockpiled peat would then be hauled to the existing upland processing plant to be stockpiled and processed for sale within two months.

Preferred Alternative: Wetland Mitigation

Location

Acres

Type

Cell I

3.6

restoration

Cell B

2.2

restoration

Cell E

2.7

restoration

Cell K

8.3

restoration

Cell I access road

0

 

Cell B access road

2.6

restoration

Cell E access road

0.8

restoration

Restoration Area 3

4.7

restoration

Restoration Areas 1, 2, & 4

12.5

restoration

Restoration Area 1

0.03

enhancement

TOTAL

37.43

 

Phase I (20 13 - 20 15) will result in the discharge of fill material into 6.1 acres of wetland and 1.63 acres of deep water habitat in Cell I. (Reference Sheet 6.) A 0.3-acre cut will be made in the eastern berm near Kiser Ditch to promote dewatering of the cell. Also, approximately 105 cubic yards of rock (95 feet x 29 feet x 1 foot) will be placed along the berm cut and into Kiser Ditch, below the ordinary high water (OHW) elevation, to help stabilize the berm from erosion. (Reference Sheet 8 and Sheet 11 for the berm cut and stabilization details.) While Cell I is dewatered, Restoration Area 1 will be constructed. After the completion of peat harvesting activities within Cell I, the access road through Cell I and the northern portion of Cell K will be removed, seeded, and staked with live plants. Additionally, some of the removed soil will be used to augment a portion of the deep water habitat located in Cell K to raise the base elevation and allow hydrophytic vegetation to become established, thereby restoring the area to wetland habitat. 

Phase II (2015- 2025) will entail the discharge of fill material into 8.4 acres of wetland and 0.5 acre of deep water habitat in Cell B. (Reference Sheet 6.) A 0.3-acre cut will be made in the eastern berm of Cell B, along Kiser Ditch, to promote the release of water. Approximately 107 cubic yards of rock (1 00 feet x 29 feet x 1 foot) will be placed along the berm and into Kiser Ditch, below the OHW, to help to stabilize the berm from erosion. (Reference Sheet 9 and Sheet 11 for the berm cut and stabilization measures.) Restoration Area 2 will be constructed while Cell B is being dewatered. A 25-foot long (0.01 acre) crossing will be constructed in Ditch E/B for access, and is projected to remain in place for three years. (Sheet 10 depicts the proposed Ditch E/B crossing.) Upon completion of peat excavation in Cell B, soil will be excavated from Restoration Area 3 and used as a base in the proposed Cell B restoration area. Restoration Area 3 will be constructed concurrently. The access road will be removed from Cell Band this soil will also be used to raise the base elevation of the Cell B restoration area. Restoration Area 2, Restoration Area 3, and Cell B restoration area will be seeded and planted with live stakes while the Ditch E/B crossing is removed. (Reference Sheet 12 for the crossing removal details.)

Phase III (20 17 -2025) will involve the discharge of dredged or fill material into 10.4 acres of wetland and 2.5 acres of deep water habitat in Cell E. (Reference Sheet 6.) A 0.3-acre cut will be made in the eastern berm of Cell E, near Kiser Ditch, to promote dewatering of the cell. Approximately 97 cubic yards of rock (90 feet x 29 feet x 1 foot) will be placed through the berm cut and into Kiser Ditch, below the OHW, to stabilize the berm. (Sheet 7 and Sheet 11 depict the berm cut and stabilization measures in Cell E.) Grading of Restoration Area 4 will commence during the dewatering of Cell E, and the excavated soil from this area will be used to construct an access road into Cell E. Following the completion of peat harvesting activities in Cell E, soil excavated from Restoration Area 4 will be used in the proposed restoration area of Cell E. The access road west and south of Cell E as well as the southern half of the access road previously constructed in Cell K will be removed. Restoration Area 4, Cell E restoration area, and the Cell K restoration area will be seeded and staked with live plants.

COMPENSATORY MITIGATION PLAN: Of the 24.9 acres of wetland impact, 8.9 acres are proposed to be restored following the peat mining activity, leaving 16 acres of wetland permanently converted to deep water habitat. To compensate for impacts to 24.9 acres of wetland, the applicant has submitted a conceptual mitigation plan which indicates that they propose to restore 37.4 acres (including the 8.9 acres of restoration mentioned above) of wetland on-site and enhance 0.03 acre of wetland in Restoration Area 1, as detailed in the table below. A preliminary outline for the compensatory mitigation has been provided, as described above in the phasing of the project. The acreages of mitigation areas are detailed in the following table. The remaining and restored waters on-site will be preserved via an environmental covenant. (Reference Sheet 14 for the proposed mitigation plan and Sheet 15 for the proposed covenant area.)

 

 

 

Preferred Alternative: Wetland Mitigation

 

Location

 

Acres

 

Type

 

Cell I

 

3.6

 

restoration

 

Cell B

 

2.2

 

restoration

 

Cell E

 

2.7

 

restoration

 

Cell K

 

8.3

 

restoration

 

Cell I access road

 

0

 

 

 

Cell B access road

 

2.6

 

restoration

 

Cell E access road

 

0.8

 

restoration

 

Restoration Area 3

 

4.7

 

restoration

 

Restoration Areas 1, 2, & 4

 

12.5

 

restoration

 

Restoration Area 1

 

0.03

 

enhancement

 

TOTAL

 

37.43

 

 

 

 

WATER QUALITY CERTIFICATION: 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. 

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. 

ALTERNATIVES ANALYSIS: The project requires siting within the wetlands to fulfill its basic purpose and is considered a water dependent activity. Because the proposed project is an expansion of an on-going peat mining facility, deference is given to the applicant that the existing site is more economically feasible than a new facility. The applicant submitted a preliminary alternatives analysis including a minimal and a non-degradation plan which incorporate on-site avoidance and minimization measures. The preliminary alternatives analysis is currently under review.

AVOIDANCE AND MINIMIZATION: In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts to these sites. A total of 88.03 acres ofwetland, 10,725linear feet (6.34 acres) ofperennial streams, and 39.53 acres of deep water habitat subject to Section 404 Clean Water Act jurisdiction exist on the project site. The applicant has undertaken numerous revisions in an effort to minimize the footprint of the project. The preferred project, as detailed in this notice, maximizes the excavation of peat where it occurs at its greatest depth (generally 7-14 feet) while avoiding those wetland areas where peat is shallow (less than 7 feet). By focusing the mining operation in locations where peat is deepest, Scotts has minimized their impact footprint on-site. The applicant also submitted a preliminary alternatives analysis including a minimal and a non-degradation plan. The preferred plan proposes impacts to 24.9 acres of wetland, 4.63 acres of deep water habitat, and 160 linear feet (0.03 acre) of perennial streams. The minimal degradation plan proposes impacts to 23.1 acres of wetland, 4.61 acres of deep water habitat, and 160 linear feet (0.03 acre) of perennial streams. The difference between the preferred plan (as detailed in this notice) and the minimal degradation plan is the width of the access roads. In the preferred plan, access roads are 50 feet wide, allowing two-way traffic while in the minimal degradation alternative, the access roads are 22 feet wide, thereby allowing only one-way traffic.

HISTORIC & CULTURAL RESOURCES: The National Register ofHistoric Places has been consulted and it has been determined that there are no properties currently listed on the Register which would be directly affected by the proposed work. On behalf of Scotts, a Phase I archaeological assessment of the 47-acre property (the remaining undisturbed portion of the site) was performed by Weller & Associates, Incorporated. The Phase I report was submitted to this office on January 30, 2012. Our office is currently reviewing this survey. A copy of this public notice and a copy of the Phase I Cultural Resources Survey will be sent to the Advisory Council on Historic Properties for their review. 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 which might be affected by the proposed work, the District Engineer will immediately take appropriate action pursuant to the National Historic Preservation Act of 1966. Comments concerning archeological sensitivity of a project area should be based upon collected data.

 THREATENED & ENDANGERED SPECIES: The project is located within the known or historic range ofthe following threatened (T), or endangered species (E): Indiana bat (E), eastern prairie fringed orchid (T). On June 16, 2011, the applicant consulted the United States Fish and Wildlife Service (USFWS) regarding endangered species and received a response on June 21, 2011. The Corps has consulted the most recently available information and information provided by the applicant to make the following determinations.

Although the project site contains stands of mature trees within the Kiser Ditch river valley, including one tree exhibiting the characteristics of suitable habitat for the Indiana bat, no trees are proposed to be removed for the completion ofthis project. Additionally, between 1990 and 2010, the adjacent eastern river valley was utilized by Scotts for peat harvesting. As a result of limited habitat and the past use of the site, the continued harvesting ofthe valley is not expected to cause new disturbance to the bat. Since no trees are proposed to removed, the Corps has determined that the proposed project will have no effect on the Indiana bat.

The proposed project site may provide some characteristics suitable for the eastern prairie fringed orchid. However, the site is dominated by reed canary grass (Phalaris arundinaceae), an invasive species that tends to form monotypic stands. By forming dense stands, the reed canary grass shades out other species inhibiting their grown, success, and propagation. Thus, as a result of the long-term dominance of the wetland by reed canary grass, it is expected that the eastern prairie fringed orchid is not present within the wetland due to unsuitable habitat. As a result, the Corps has determined that the proposed project will have no effect on the eastern prairie fringed orchid.

This public notice serves as a request to the USFWS to provide 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 ofthe U.S. Army Corps of Engineers (USACE), and other pertinent laws, regulations, and executive orders. Our evaluation will also follow the guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b) (1) of the CW A. 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 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. 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 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.

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 the following address:

                                                U.S. Army Corps of Engineers

                                                ATTN: CELRH-RD-N

                                                Public Notice No. LRH-0-52798-WAL

                                                502 Eighth 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 oflnformation Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please contact Megan Oberst of the Dover Regulatory Field Office at (330) 364-6177.