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Posted: 8/14/2012

Expiration date: 9/13/2012

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.

REGULATORY PROGRAM: Since its early history, the United States Army Corps of Engineers (Corps) has played an important role in the development of the nation's water resources. Originally, this involved construction of harbor fortifications and coastal defenses. Later duties included the improvement of waterways to provide avenues of commerce. An important part of our mission today is the protection of the nation's waterways through the administration of the Corps Regulatory Program.

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 (U.S.). 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 U.S., 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 following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act. This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification for the following application.

APPLICANT: Bizzack Construction, LLC 3009 Atkinson Ave., Suite 200 Lexington, KY 40509

LOCATION: The proposed project is located in unnamed tributaries of Rum Creek and the Guyandotte River, near Dabney and Lyburn, in Logan County, West Virginia. The proposed Westside Fill is located at Latitude 37.8103 and Longitude -81.93917 as shown on Drawings 1 and 3. The proposed Toms Branch Fill is located at Latitude 37.80156 and Longitude -81.9214 as shown on Drawings 1 and 2.

DESCRIPTION: The applicant has requested authorization to discharge fill material in waters of the U.S. in conjunction with the construction of the West Virginia (WV) State Route 10 (Route 10) relocation project. The fill areas are required in order to allow for the disposal of excess spoil material generated by excavation of the proposed highway cuts. Two separate locations are necessary to facilitate construction and are known as the Westside Fill and the Toms Branch Fill. Approximately 500,000 cubic yards of material would be discharged at the Toms Branch location while the Westside Fill would allow for the discharge of approximately 2.3 million cubic yards of excess material. A total of 3,378 linear feet of stream would be permanently impacted by the Westside Fill while the Toms Branch location would permanently impact 1,555 linear feet of stream (Table 1). Construction of the fill sites would temporarily impact a total of 735 linear feet of three streams (Table 2). After construction, all temporary fill material would be removed and the streams returned to approximate original contours. 

AVOIDANCE and MINIMIZATION: The applicant has committed to avoiding impacts to streams where possible. However, when avoidance is not practicable, best management practices (BMPs) would be employed. Turbidity and sedimentation from surface water runoff and erosion would be minimized through the use of various sediment and erosion control features. ALTERNATIVES ANALYSIS: This project is not considered to be water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives are not available that would achieve the overall project purpose. No permit will be issued until our review of the alternative analysis clearly shows that upland alternatives are not available to achieve the overall project purpose. The Route 10 relocation project has been authorized and is currently being constructed. Other excess fill areas have also been authorized for the Route 10 relocation project and available upland sites have been utilized. The applicant states due to the steep terrain and availability and proximity to the highway construction, these sites are the only feasible locations to place the amount of material resulting from the Route 10 relocation project.

COMPENSATORY MITIGATION PLAN: To compensate for permanent impacts to streams, the applicant proposes to purchase 2,045 credits from an approved bank and/or provide payment into the West Virginia In-Lieu Fee Program. In addition, the applicant has proposed to relocate 2,200 linear feet of stream channel around the Westside Fill. The proposed relocation would generate the balance of the required mitigation credit or 1,758 credits on site. The relocated stream channel would incorporate natural stream channel design techniques such as the installation of step pools and root wads as well as the establishment of a 75 foot wide buffer zone on both sides of the channel (Drawings 3 and 4). The buffer zone would include tree and shrub plantings at approximately 400 stems per acre. The relocated stream segment onsite will help restore the watershed. All temporary fill material would be removed from the impacted waters and returned to approximate original contours.

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 West Virginia Department of Environmental Protection.

HISTORIC AND CULTURAL RESOURCES: The Norfolk Southern Railway Company rail line adjacent to the project area has been determined to be eligible for listing on the National Register of Historic Places. The Federal Highway Administration is the lead Federal agency for the project and therefore, has the ultimate responsibility for ensuring compliance with the National Historic Preservation Act. A copy of this Public Notice will be sent to the State Historic Preservation Offices for their review. Comments concerning archeological sensitivity of a project area should be based upon collected data.

ENDANGERED AND THREATENED SPECIES: The Huntington District has consulted the most recently available information and has determined the project is not likely to 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 U.S. Fish and Wildlife Service 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.

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. In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, Environmental Protection Agency, 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. A permit will be granted unless its issuance is found to be contrary to the public interest.

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. 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. 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 Sarah Workman, Project Manager, South/Transportation Branch, CELRH-RD-S, USACE Huntington District, 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 the above, please contact Sarah Workman of the South/Transportation Branch at (304) 399-5710. (W)