PUBLIC
NOTICE: The district engineer has received a mitigation
bank prospectus to establish a wetland and stream compensatory mitigation bank
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). 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 United States Army Corps of Engineers’ (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 prospectus, prospectus,
instruments, and other documents and provides comments to the Corps. The
Huntington District Regulatory Division is the lead district for the State of West
Virginia and chairs the West Virginia IRT on all statewide or multiple District
prospectuses. The Pittsburgh District
may serve as chair when reviewing/processing prospectuses within their
geographic area of regulatory responsibility. The West Virginia IRT consists of
the following Federal and state agencies: the United States Environmental
Protection Agency (USEPA), the United States Fish and Wildlife Service (USFWS),
the United States Department of Agriculture’s Natural Resources Conservation
Service (NRCS), the West Virginia Department of Environmental Protection
(WVDEP), the West Virginia Division of Natural Resources (WVDNR), as well as
the Huntington and Pittsburgh Corps Districts.
REGULATORY
PROGRAM:
The Regulatory Program is committed to protecting the Nation’s aquatic
resources and navigation capacity, while allowing reasonable development
through fair and balanced decisions. The
Regulatory Program is founded upon two (2) primary authorities, which are
Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean
Water Act.
SECTION 10: The
Corps is directed by Congress under Section 10 of the Rivers and Harbors Act of
1899 (33 USC 403) to regulate all work or structures in or affecting the
course, condition or capacity of navigable waters of the United States. The intent of this law is to protect the
navigable capacity of waters important to interstate commerce.
SECTION 404: The
Corps is directed by Congress under Section 404 of the Clean Water Act (33 USC
1344) to regulate the discharge of dredged and fill material into all waters of
the United States, including wetlands.
The intent of the law is to protect the nation's waters from the indiscriminate
discharge of material capable of causing pollution and to restore and maintain
their chemical, physical, and biological integrity.
TO WHOM IT MAY CONCERN: 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.
BANK SPONSOR: Environmental Banc & Exchange, LLC (EBX)
137 ½ East Main Street, Suite 210
Oak Hill, West Virginia 25901
LOCATION:
The Bank Sponsor is proposing one (1) mitigation
bank in association with this proposal. The
proposed Cline Run Mitigation Bank (LRH-2015-01000-OHR) site is located on an
approximate 325-acre tract within the Cline Run watershed, in Tyler County,
West Virginia (latitude 39.3593, longitude -80.95587). The proposed Cline Run Mitigation Bank site
includes Cline Run and unnamed tributaries to Cline Run, adjacent floodplains and
upland corridors. Cline Run is an
indirect tributary to the Ohio River.
DESCRIPTION OF THE PROPOSED WORK: The
sponsor, EBX, received approval for the EBX Umbrella Mitigation Banking Instrument
(UMBI) on November 3, 2011 (LRH-2005-01441-GAU). As defined in 33 CFR 332.8, a 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 proposed and approved (by the WV
IRT) under an existing UMBI.
Therefore,
the Cline Run Mitigation Bank proposal is considered a modification to EBX’s
UMBI.
EBX has
submitted a prospectus to the Corps Huntington District to develop and operate
a stream and wetland mitigation bank known as the Cline Run Mitigation Bank. The purpose of the mitigation bank is to
provide off-site compensatory mitigation for projects that result in
unavoidable impacts (including the discharge of dredged and/or fill material)
to streams and wetlands within the specified service area. The proposed bank will involve the establishment,
enhancement, restoration, and preservation of streams, wetlands, and their adjacent floodplains and upland corridors.
Mitigation
banks are defined as a site, or suite of sites, where resources (e.g. wetlands,
streams, riparian area) are restored, established, enhanced, and/or preserved
for the purpose of providing compensatory mitigation for impacts authorized by
Department of the Army (DA) permits pursuant to Section 10 of the Rivers and Harbors
Act of 1899 and/or Section 404 of the Clean Water Act. In addition, the proposed mitigation would
provide wetland compensatory mitigation for West Virginia State Water Quality
Certifications authorized under Section 401 of the Clean Water Act. In general, units of restored, established,
enhanced, or preserved streams (or wetlands) are expressed as “credits” which
may be subsequently withdrawn to offset “debits” incurred at a project
development site. The Corps is
responsible for authorizing the use of a particular mitigation bank on a
project-specific basis and determining the number and availability of credits
required to compensate for proposed impacts.
Decisions rendered by the Corps will fully consider all comments
submitted as part of the permit evaluation process. In areas where a functional or conditional
assessment or other suitable metric is not available, a minimum one-to-one
acreage (for wetlands) or linear foot (for streams) compensation ratio must be
applied in order to achieve a federally mandated “no net loss of aquatic
resources.” Wetland credits would
correlate with wetland acreage and classification (i.e. emergent, scrub-shrub
and forested). Stream credits would
correlate with linear feet or acceptable forms of assessments and classification
of streams. Acceptable forms of
assessments would include those based upon best available science that can be
measured or assessed in a practicable manner.
The
proposed mitigation bank would provide compensatory mitigation for projects resulting
in unavoidable impacts to streams and wetlands within specified service areas. The primary Geographic Service Area (GSA) would
be the Middle Ohio North Watershed as defined by the 8-digit Hydrologic Unit
Code (HUC) No. 05030201. The Bank
Sponsor has also proposed five (5) secondary GSA’s, which would be the Upper
Ohio South Watershed (05030106), the Middle Ohio South Watershed (05020005),
the Monongahela Watershed (05020003), the West Fork Watershed (05020002), and
the Little Kanawha Watershed (05030203).
The goal
of the proposed mitigation bank is to provide compensatory stream and wetland
mitigation to offset unavoidable adverse impacts to streams and wetlands
through the establishment, enhancement, restoration, and/or preservation of streams,
wetlands, and their adjacent floodplains and upland corridors. The Bank Sponsor
proposes to meet the mitigation bank’s goals through the establishment,
enhancement, restoration, and/or preservation of streams, wetlands, and their adjacent floodplains and upland corridors, as
summarized below:
Restoration: The Bank Sponsor
proposes to restore approximately 9,959 linear feet (lf) of stream and 7.53
acres of wetland (5.00 acres Re-establishment and 2.40 acres
Re-habilitation). The Bank Sponsor also
proposes to restore 300 foot riparian buffers (150 feet on either side of the
stream or wetland), if not already established, along stream reaches and
wetlands targeted for restoration.
Enhancement: The Bank Sponsor
proposes to enhance approximately 17,168 lf of stream. A 300 foot riparian buffer (150 feet on
either side of the stream) will also be established and/or restored along the
streams.
Establishment: The Bank Sponsor
proposes to establish approximately 2,930 lf of stream in areas impacted by
logging, agricultural use, and energy production. A 300 foot riparian buffer
(150 feet on either side of the stream) will also be established and/or
restored along the streams.
Preservation: The Bank Sponsor
proposes to preserve approximately 11,079 linear feet (lf) of stream and 0.13
acres of wetland, along with a 300 foot riparian buffer (150 feet on either
side of the stream or wetland).
Figure
1 of 4 shows the location of the proposed mitigation bank, Figure 2 of 4 shows
the proposed service area map for the proposed mitigation bank, Figure 3 of 4
shows the Cline Run watershed layout of the proposed mitigation bank, and
Figure 4 of 4 shows the proposed resource development of proposed mitigation
bank.
In accordance
with the Rule, performance standards and success criteria established by
application of conditional assessments and/or suitable metrics would be outlined
and implemented as requirements. The full prospectus is
available for review upon request.
WATER QUALITY CERTIFICATION: In accordance with Nationwide Permit No. 27 [under the February
21, 2012 Federal Register, Reissuance of Nationwide Permits (77 FR 10184)], a
general Section 401 Water Quality Certification with special conditions
applies. Prior written approval is
required from the WVDEP Division of Water and Waste Management in concurrence
with the WVDNR.
HISTORIC
AND CULTURAL RESOURCES: This project
must be reviewed to determine any potential effect 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 properties currently listed on the register that are in
the area affected by the project. On
August 17, 2015, the Bank Sponsor submitted information to the West Virginia
Division of Culture and History, the State Historic Preservation Office, (SHPO)
stating the proposed project activity would include the construction of new
stream channel (in certain locations) and the enhancement of habitat features
within the riparian buffer zone. Through letter dated September 14, 2015, the
SHPO stated that the proposed project would have no effect on historic
properties. Therefore, the Corps has
determined the proposed project will have no effect on historic
properties.
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 potential effects on
historic properties. If you wish to
provide comments or objections regarding the effect of the proposed project on
historic properties, please provide this information to our office prior to the
close of the comment period.
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). One (1) federally
listed endangered species, the Indiana bat (Myotis
sodalis) and one (1) federally threatened species, the northern long-eared
bat (Myotis septentrionalis) may
occur within the proposed project area. The proposed project would
involve the establishment, enhancement, restoration, and/or preservation of
streams, wetlands, and their adjacent floodplains and upland corridors. The proposed activities would be expected to
result in stream and wetland riparian corridor improvements. Based on the nature of the project, this
office has determined the proposed projects may affect (in a positive aspect),
but would not likely adversely affect the Indiana bat and the northern long-eared
bat.
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 areas which would be affected by the activities,
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 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 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. Interested parties are invited to state any
objections they may have to the proposed work.
The decision whether to approve the mitigation bank 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 the 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 these
proposals. 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:
Unites
States Army Corps of Engineers
ATTN:
CELRH-RD-E (Public Notice No. LRH-2015-01000-OHR)
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 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. Samantha Dailey at the above address, by
telephone at (304) 399-5858, or by email at samantha.j.dailey@usace.army.mil.