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Published March 1, 2018
Expiration date: 3/31/2018

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 for the proposed discharge of dredged and/or fill material into waters of the United States (U.S.).  This notice serves as the U.S. Army Corps of Engineers’ (Corps) request to the Ohio Environmental Protection Agency (OEPA) to act on Section 401 Water Quality Certification for the following application.  


APPLICANT:   Fairborn Cement Company (Fairborn)

3250 Linebaugh Road  

Xenia, Ohio 43385     


LOCATION:  The proposed 350 acre project would be located southeast of Hyde Road and East Xenia Drive, in the City of Fairborn and Bath Township, Greene County, Ohio at Latitude N 39° 46’ 45”, Longitude W 83° 57’ 6”, within the Shawnee Creek and Yellow Springs Creek watersheds. The project can be found on the Yellow Springs Ohio USGS 7.5 minute quadrangle map. Ludlow Creek is an indirect tributary to the Little Miami River, a traditional navigable water of the U.S. (see attached Exhibits 1-2).


PROJECT HISTORY:  Fairborn currently operates a cement plant, a limestone quarry, and has been in operation since 1924.  The current limestone quarry reserves have been depleted and the proposed project area is needed to meet contractual obligations and the continued operation of the existing cement plant.  The quarry currently operates under Ohio Department of Natural Resources (ODNR) permits IM-0364 and IM-0330.  Fairborn maintains contracts with numerous local and regional businesses to provide concrete to Ohio and surrounding states.  The Fairborn plant is one of two operating cement plants in the state of Ohio.  On October 11, 2017, and November 14, 2017, representatives from the Corps conducted a site verification of jurisdictional waters of the U.S. located within the Fairborn Quarry Relocation project area.  Following the site verification, a Preliminary Jurisdictional Determination and Approved Jurisdictional Determination were issued for the project on January 8, 2018. 


DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge dredged or fill material into waters of the U.S. to facilitate the recovery of limestone and clay reserves using surface mining methods.  The applicant has requested a DA permit to discharge dredged and/or fill material into 3.99 acres of three (3) wetlands, and 2,708 linear feet (lf) (0.25 acre) of streams associated with the construction, operation and reclamation of the proposed Fairborn Quarry Relocation project.  The Fairborn Quarry Relocation project area is approved under the ODNR Permit No. IM-0364 pursuant to the Ohio Revised Code (ORC) Chapter 1514.  Plans of the proposal are attached to this notice (Exhibits 1-7).   


ALTERNATIVES ANALYSIS:   A total of 3.99 acres of three (3) jurisdictional wetlands, 469 lf of jurisdictional intermittent streams, and 2,239 lf of jurisdictional ephemeral streams would be permanently 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 in special aquatic sites, 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 this presumption.  The applicant has submitted the required alternatives analysis and it is currently under review.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address.  No permit will be issued until our office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis. 


AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on these sites.  If waters of the United States cannot be avoided, then the impacts must be minimized.  Approximately 3.99 acres of wetlands, and 3,453 linear feet of streams are subject to Section 404 of the Clean Water Act regulation exist on the project site.  The applicant has indicated there is no practicable alternative for the proposed project that completely avoids the discharge of dredged and/or fill material into waters of the U.S. and would meet the overall project purpose. Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project. The applicant’s project would avoid 22% of the on-site streams.  According to the applicant, alternative plans were considered.  Temporary sediment controls such as silt fence, straw bales, rock checks, dikes, and/or protective stream barriers would be used to prevent and minimize downstream sedimentation.  In-stream construction activities would occur during low flow during construction to the greatest extent practicable.  Standard best management practices would be used. Project effluent would be managed pursuant to the approved Section 402 National Pollutant Discharge Elimination System permit to ensure water quality standards are met.    


COMPENSATORY MITIGATION PLAN (CMP):  To compensate for the losses of waters of the U.S. associated with the proposed project, the applicant submitted a conceptual compensatory mitigation plan.  The applicant indicates a combination of off-site permittee responsible mitigation and In-Lieu Fee stream credit purchase to satisfy compensatory mitigation requirements.  The applicant proposes to purchase 2,708 stream credits from the Nature Conservancy In-Lieu Fee Program to offset the loss of 2,708 linear feet of stream within the project area.  The applicant has provided a “Letter of Credit Availability and Reservation” from the Nature Conservancy dated January 16, 2018.  The applicant proposes to offset the loss of 3.99 acres of wetlands by establishing off-site 5.79 acres of two non-forested wetlands, and 0.26 acre of one forested wetland. The established wetlands would be surrounded by an upland buffer totaling 2.07 acres.  The success of the 6.05 acres of wetland would be based on ecologically based performance standards, which would be made a part of any DA authorization.  The mitigation area would be monitored for a minimum of five (5) years. An invasive species action plan would be implemented during the monitoring period to control invasive plants. Performance standards for the mitigation area would be required to attain the quality equal to or greater than baseline conditions.  All mitigation areas would be placed in a long-term protection instrument which would preserve the area in perpetuity.


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 OEPA.


HISTORIC AND 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 NRHP which would be indirectly or directly affected by the proposed work. A literature review, Phase 1 archaeological survey and Phase 2 survey have been conducted on the proposed project site.  The Phase 1 archaeological survey identified a total of twenty-six (26) sites.  Twenty-three (23) of sites have lost integrity and do not meet the criteria necessary for inclusion on the NRHP.  The Ohio State Historic Preservation Office (SHPO) provided a letter dated January 13, 2005 concurring the 23 sites do not meet the criteria necessary for inclusion in the NRHP, and stated that no further investigations were necessary.  A Phase 2 survey was recommended and conducted on December 20, 2017 for the remaining three (3) sites.  The Phase 2 survey found that the sites lacked integrity and the ability to yield additional and/or significant information.  Therefore, the sites are not considered to be eligible for the inclusion on the NRHP, and no further work is recommended.  The Corps has determined the proposed project would have no effect on historic properties eligible or potentially eligible for inclusion on the NRHP.  A copy of this Public Notice will be sent to the Ohio State Historic Preservation Office for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the following threatened (T) or endangered (E) species: Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis), clubshell mussel (Pleurobema clava), rayed bean mussel (Villosa fabalis), snuffbox mussel (Epioblasma triquetra), and the eastern massasauga (Sistrurus catenatus).  Based on the proposed implementation of the seasonal tree clearing restrictions, we have determined the proposed project may affect, but would not likely adversely affect either the Indiana bat (Myotis sodalis) or the northern long-eared bat (Myotis septentrionalis).  There are no perennial streams within the proposed project area to support the aforementioned federally-listed mussel species.  Based on the lack of suitable habitat on the project site, we have determined the project would have no effect on the clubshell mussel (Pleurobema clava), rayed bean mussel (Villosa fabalis), snuffbox mussel (Epioblasma triquetra).  Suitable habitat is present on-site to support the eastern massasauga (Sistrurus catenatus), and is located within a township known to have occurrence of the species.  However, due to the mobility of the species we have determined that the project may affect, but would not likely adversely affect the eastern massasauga (Sistrurus catenatus).  


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 for concurrence from the United States 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 CUMULATIVE EFFECTS:  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 Clean Water Act (40 CFR part 230). The decision whether to issue a permit will be based on an evaluation of the probable impacts, 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 which 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; among those factors 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. 


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 person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application.  Requests for public hearings shall state, with particularity, the reasons for holding a public hearing.  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.  Written statements 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.


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


Public Notice No. LRH-2010-1015-LMR

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 Kyle M. Moore of the Cincinnati Field Office, at 513-825-4489.