TO WHOM IT MAY CONCERN: The purpose of this notice is to advise the public than an emergency Department of the Army (DA) permit has been issued to the Ohio Department of Transportation (ODOT), under the provisions of Section 404 of the Clean Water Act, for the discharge of fill material into waters of the United States (U.S.) associated with the remediation of the existing unstable and unsafe rock fall conditions along State Route (SR) 7. In evaluating ODOT’s request for an emergency DA permit, the U.S Army Corps of Engineers, Huntington District followed special processing procedures approved in accordance with 33 CFR 325.2(e)(4).
PERMITTEE: Ohio Department of Transportation (ODOT)
1980 West Broad Street, Mail Stop 4170
Columbus, Ohio 43223
LOCATION: The proposed project, referred to as JEF-7-4.80, PID 94058, is located along the west side of State Route (SR) 7, north of Rush Run Road in Warren Township, in Jefferson County, Ohio (40.224814, -80.666621). The project site is in the Upper Ohio-Wheeling watershed (Hydrologic Unit Code 05030106) of the Ohio River, a traditional navigable water of the U.S. The project site is shown on the figure titled Project Location Map (Sheet 1).
EMERGENCY SITUATION: An “emergency” is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the permit application under standard procedures. The ODOT has indicated an unstable hillside along SR 7 has developed as a result of repeated heavy rainfall events in 2018. In December 2018, ODOT noted marked movement and deterioration of the hillside at the project location.
SR 7 is a major transportation route in this portion of Jefferson County, Ohio. The ODOT indicated catastrophic failure has the potential to result in a hazard to life and loss of property. The ODOT proposed to begin the remediation work immediately to eliminate the rockfall conditions to ensure public safety. ODOT indicated the rockfall conditions pose a significant public safety risk and has stated the work is urgent. The ODOT proposed to commence emergency construction in January 2019 and complete the full project within eight (8) months.
APPROVED EMERGENCY PROCEDURES: The Huntington District obtained the Division Engineer’s approval to implement special processing procedures for ODOT’s application for the proposed project. Due to the emergency situation described above, the Huntington District received approval to process ODOT’s request without issuance of a formal Public Notice prior to the permit decision. Agency coordination was conducted. The approved special processing procedures included issuance of an advisory Public Notice describing the project, the emergency procedures followed, the rational for these procedures, and the final permit decision. This Public Notice has been issued to provide this notification.
PROJECT DESCRIPTION: To remediate the unstable and unsafe rock fall, the ODOT proposed to lay the hillside back. Implementation of the proposal would result in the loss of 0.555 acre of Wetland A due to resloping the hillside. The ODOT requested emergency DA authorization for the permanent discharge of 886 cubic yards of earthen materials into the remaining 0.537 acre of Wetland A to dispose of hillside waste as depicted on the attached Project Site Plan (Sheet 3).
AVOIDANCE AND MINIMIZATION: A total of 1.092 acres of the existing Wetland A will be affected by the proposed project. ODOT evaluated three other alternatives to avoid and minimize discharges of fill material into waters of the United States. During the evaluation, the ODOT determined the proposed project alternative is the only practicable alternative and further avoidance and minimization is not feasible.
COMPENSATORY MITIGATION: To compensate for the loss of 1.092 acres of Wetland A, the ODOT will purchase a minimum of 2.482 wetland credits in the Upper Ohio-Wheeling watershed (HUC 05030106) from an approved In-Lieu Fee Program.
WATER QUALITY CERTIFICATION: Per the Ohio Environmental Protection Agency’s rules for emergency authorizations, a Section 401 Water Quality Certification is required for this project. The required WQC was issued on January 18, 2019.
HISTORIC AND CULTURAL RESOURCES: Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between the Federal Highway Administration (FHWA) and the ODOT, FHWA assigned, and ODOT assumed, responsibility for compliance with the Section 106 of the National Historic Preservation Act (NHPA). The ODOT determined the proposed project has “minimal potential to cause effects” to historic properties and is not part of a larger undertaking.
THREATENED AND ENDANGERED SPECIES: This project is located within the known or historic range of the following federally-listed threatened (T) or endangered (E) species:
- Northern long-eared bat (Myotis septentrionalis) (T)
- Indiana bat (Myotis sodalis) (E)
Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between FHWA and the ODOT, FHWA assigned, and ODOT assumed, responsibility for compliance with Section 7 of the Endangered Species Act.
The ODOT initiated consultation with the United States Fish and Wildlife Service (USFWS) by email dated 15 November 2018 in accordance with the 2016 Memorandum of Agreement (MOA) Between The Ohio Department of Transportation, The Ohio Department of Natural Resources, and the United States Fish and Wildlife Service For Interagency Coordination For Projects Which Require Consultation Under the Endangered Species Act, Impact State Listed Species, and/or Modify Jurisdictional Waters, Agreement Number: 19394. The coordination effort also is in accordance with the Framework Programmatic Biological Opinion [PBO] on the Ohio Department of Transportation’s Federal-Aid Highway Program for the Federally Endangered Indiana Bat (Myotis sodalis) and Federally Threatened Northern Long-eared Bat (Myotis septentrionalis), submitted to the Ohio Department of Transportation executed on 29 February 2016. The ODOT determined the project may affect, and is likely to adversely affect both the Indiana bat and the northern long-eared bat.
In accordance with the PBO, the ODOT will only clear suitable wooded habitat between 1 October and 31 March. Additionally, the ODOT will deduct 7.29 acres of credits from the Sunday Creek Coal Company 2 (SCCC2) Bat Conservation Area in Ward Township, Hocking County, Ohio. By letter dated 20 November 2018, the USFWS determined the proposed project, if constructed in accordance with the PBO, would not likely jeopardize the continued existences of the Indiana and northern long-eared bats.
PUBLIC INTEREST: In accordance with the emergency procedures, the District performed an expedited review in accordance with 33 CFR 320‑332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders. Our evaluation followed the guidelines published by the U. S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act. The decision whether to issue an emergency permit was based on an evaluation of the probable impact, including cumulative impacts, the proposed activity would have on the public interest. All factors that may be relevant to the proposal which have been considered, including the cumulative effects thereof, include: 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. Interested parties are invited to state any objections they may have to the proposed work.
FINAL PERMIT DETERMINATION: The Huntington District determined, based upon information provided by the ODOT, the proposal complies with Section 106 of the National Historic Preservation Act, Section 7 of the Endangered Species Act, and Section 404(b)(1) Guidelines, and is not contrary to the public interest. An emergency DA authorization was issued on January 17, 2019. Special conditions were included in the DA authorization, including conditions incorporating the 401 WQC, conditions for ESA compliance, and conditions requiring the permittee fulfill the wetland mitigation proposal.
COMMENTS: Comments and requests for additional information should be submitted to:
U.S. Army Corps of Engineers, Huntington District
ATTN: CELRH-RD-S-OT Public Notice No. LRH-2018-00945-OHR
Building 10 / Section 10
PO Box 3990
Columbus, OH 43218-3990
Please note that submitted comments in response to this Public Notice become part of our administrative record and, as such, may be 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, Mr. Tim Long may also be reached at 614-692-4660 or timothy.m.long@usace.army.mil.