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LRH 2018-042-OHR

Published April 23, 2018
Expiration date: 5/21/2018

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 and Section 10 of the Rivers and Harbors Act of 1899.  This notice serves as the United States (U.S.) Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) and the Ohio Environmental Protection Agency (OEPA) to act on Section 401 Water Quality Certification for the following application.


APPLICANT:                        West Virginia Department of Transportation

Division of Highways

1900 Kanawha Boulevard East

Building 5, Room 110

                                           Charleston, West Virginia  25305-0430


LOCATION:  The proposed project, referred to as the Wellsburg Bridge Project, would be located in the Ohio River and its unnamed tributaries and associated wetlands, near Wellsburg, Brooke County, West Virginia and Brilliant, Jefferson County, Ohio.  The proposed is located at Latitude 40.2566 and Longitude -80.6353 as shown on the attached USGS Map (Sheet 1 of 10).


DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization for the proposed discharge of dredged and/or fill material into waters of the U.S. and work within navigable waters of the U.S. to facilitate the construction of a new bridge (Wellsburg Bridge) at the location specified above.  The proposed bridge project would result in the permanent discharge of dredged and/or fill material into 1,057 linear feet of six (6) streams and 1.032 acres of four (4) jurisdictional wetlands, at a single and complete project location, as indicated on attached Tables 1 and 2.  The construction activities would include culvert installations, pier construction, and roadway fills.  The applicant has also requested a DA authorization to temporarily discharge fill material into 0.062 acre of wetland and 606 linear feet of the Ohio River to facilitate project construction as described in the attached Tables 3 and 4.  After completion of the construction activities, all temporary fills would be removed and the affected aquatic resources would be restored to their approximate original contours.  Plans (Sheets 1-10) for the proposal are to this Public Notice.   


The Federal Highway Administration (FHWA) is the lead Federal agency for the Wellsburg Bridge project.  In accordance with the National Environmental Policy Act (NEPA), an Environmental Assessment (EA), dated July 2012, was prepared and approved by the West Virginia Department of Transportation-Division of Highways and the FHWA.  A subsequent Finding of No Significant Impact was signed in November 2013. 


ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be permanently discharged into 1.032 acres of four (4) wetlands and 1,057 linear feet of six (6) streams as described in the attached Tables 1-2.  The proposal does not require access or proximity to or siting within the wetlands to fulfill its basic purpose and is considered to be 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 a DA authorization for the discharge of dredged and/or fill material.  No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.  The applicant has submitted an alternatives analysis for review.  The applicant’s alternatives analysis includes an evaluation of a no build alternative, multiple bridge location alternatives, and six (6) roadway alignmentsBased on their analysis, the applicant determined the Alternative 8B is their preferred alternative, stating the other alternatives considered would result in the increased traffic volumes, potential impacts to navigation, and socioeconomic impacts.  A complete copy of the applicant’s alternative analysis can be reviewed, by appointment, at the above address. 


AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding discharges of dredged and/or fill material into these waters.  If waters of the U.S. cannot be avoided, then impacts must be minimized.  Approximately 5,012 linear feet of 11 streams and 16.58 acres of seven (7) wetlands, subject to Section 404 of the Clean Water Act regulation, are located within the proposed project area.  The applicant has indicated avoidance and minimization measures were incorporated into the project design to the maximum extent possible.  The applicant has indicated that no fill material would be discharged in excess of the minimum required to complete the proposed project.  The applicant’s proposed bridge project would avoid 79% of the on-site streams and 93.8% of on-site wetlands.  The applicant would be required to obtain stormwater permits and to implement stormwater protection plans as needed for site construction following the requirements of the National Pollutant Discharge Elimination System program.   Stormwater management and erosion control systems would be implemented during construction and all disturbed areas would be seeded and/or revegetated after completion of construction activities.  All waters of the U.S. temporarily affected by construction activities would be returned to pre-disturbance conditions.


COMPENSATORY MITIGATION PLAN:   To compensate for the permanent discharge of dredged and/or fill material into the streams as described in the attached Table 1, the applicant proposes to purchase 258.20 stream credits from an approved mitigation bank and/or 289.18 stream credits from the West Virginia In-Lieu Fee Program.  To compensate for the permanent discharge of dredged and/or fill material into wetlands as described in the attached Table 2, the applicant proposes to purchase 0.058 wetland credits from an approved mitigation bank and/or 0.144 wetland credits from the West Virginia In-Lieu Fee Program.  The applicant calculated the amount of compensatory mitigation using the Corps’ West Virginia Stream and Wetland Valuation Metric (SWVM, Version 2.1).  See attached Tables 1 and 2 for detailed compensatory mitigation information.


WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain certification from both the WVDEP and the OEPA.


HISTORIC AND CULTURAL RESOURCES:  The FHWA is the lead Federal agency for the overall project and is responsible for compliance with Section 106 of the National Historic Preservation Act.  The applicant has consulted with the State Historic Preservation Offices (SHPOs) in West Virginia and Ohio.  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  In addition, it was determined there are no resources eligible for inclusion on the NRHP within the proposed project area.  The Corps intends to rely upon the information collected by the FHWA, and the consultation previously performed between the FHWA and the SHPOs regarding the proposal’s effects to historic properties, to support the Corps’ independent evaluation of the permit application.  A copy of this Public Notice will be sent to the SHPOs for their review.  Comments concerning archaeological sensitivity of the project area should be based upon collected data.


ENDANGERED AND THREATENED SPECIES: The proposed project is located within the known or historic range of the endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (NLEB-Myotis septentrionalis).  The FHWA has the ultimate responsible for compliance with Section 7 of the Endangered Species Act.  The applicant has consulted with the U.S. Fish and Wildlife Service (USFWS) field offices in West Virginia and Ohio regarding federally-protected endangered and threatened species. 


On April 27, 2012, the USFWS Ohio Field Office concluded that there is no suitable habitat for bats within the Ohio study limits.  Thus, it has been determined the portion of the proposed project within Ohio would have no effect on the Indiana bat or the NLEB. 


Mist net surveys were conducted within the West Virginia study area on July 14-17, 2014.  No Indiana bats were captured during the surveys; however, NLEBs were captured.  As a result, a NLEB Conservation Plan was developed and approved by the USFWS West Virginia Field Office on June 4, 2015.  The USFWS West Virginia Field Office stated on October 26, 2017 that the proposed project may affect, but would not likely adversely affect either the Indiana bat or the NLEB. 

The Corps intends to rely upon the information collected by or on behalf of the FHWA, and consultation performed by or on behalf of the FHWA, regarding the proposal’s effects to federally-listed threatened or endangered species, to support our evaluation of the permit application.  A copy of this Public Notice will be sent to USFWS for their review. 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 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 guidelines published by the U.S. 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 benefits 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. 


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 NEPA.  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 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.


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 at the beginning 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-2018-042-OHR

502 Eighth Street

Huntington, West Virginia 25701-2070


Please note that names and addresses of those who submit comments in response to this Public Notice become part of our administrative record, and, as such, may be available to the public

under the 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 Sarah Workman of the South/Transportation Branch by telephone at (304) 399-5710 or by email at