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LRH 2018-483-TUS

Published April 18, 2019
Expiration date: 5/17/2019

TO WHOM IT MAY CONCERN: The following application has been submitted for an after-the-fact (ATF) Department of the Army Permit (DA) under the provisions of Section 404 of the Clean Water Act.  This notice serves as the United States Army Corps of Engineers’ (Corps) request to the Ohio Environmental Protection Agency (Ohio EPA) to act on the Section 401 Water Quality Certification for the following application.


APPLICANT:            Mr. Robert Hall

                                    8197 Weston Place Avenue Northwest

                                    North Canton, Ohio  44720


LOCATION:  As depicted on the enclosed location map (Sheet 1 of 2), the proposed project would be located at 8197 Weston Place Avenue Northwest in Jackson Township, Stark County, Ohio (latitude 40.900153°N, longitude 81.486755°W).  Waters present on the 8.7-acre site flow to an unnamed tributary of Nimisila Creek, which is a tributary of the Tuscarawas River, a navigable water of the United States.

DESCRIPTION OF THE PROPOSED WORK: The applicant has requested an ATF DA Permit for the unauthorized discharge of dredge and/or fill material into 0.957 acre of wetland, which occurred during the excavation and mechanized clearing and grading of land, as well as the sidecasting of soil, that occurred during the construction of a pond on the residential property.  In addition, the applicant is requesting a DA permit authorization for the proposed discharge of dredged and/or fill into an additional 0.145 acre of wetland to complete construction of the pond.  A total discharge of approximately 397 cubic yards into 1.102 acres of wetland would be impacted as a result of the pond construction.  Plans for the proposed project are attached to this Public Notice (Sheet 2 of 2).

ALTERNATIVE ANALYSIS:  The applicant’s basic project purpose is to construct a residential development.   A total of 1.102 acres of wetland would be affected as a result of the discharge of dredged and/or fill material into waters of the United States for 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 alternative analysis that must overcome that presumption prior to receiving authorization for the discharge of fill material into the wetlands.  The applicant has submitted the required alternatives analysis, and it is currently under review.  A complete copy of the alternatives analysis can be reviewed by appointment at the above address.  No permit will be issued until our review of the alternatives analysis clearly shows that upland alternatives are not available to achieve the project purpose. 

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 impacts must be minimized.  A total of approximately 1.164 acres of palustrine emergent (PEM) wetland existed within the project site prior to construction of the pond and was found to be with the Corps’ jurisdiction.  According to the applicant, alternative plans were considered.  The applicant’s proposed project would affect 1.102 acres (95%) of the on-site PEM wetlands.  A 0.025 acre portion of the wetland will remain outside of the constructed berm and a 0.037 acre island in the middle of the pond will remain at original grade, therefore avoiding impacts to 0.062 (5%) acre of wetland on-site.  

The applicant has indicated that the pond will act as a stormwater retention area before water flows downstream and will aid in downstream erosion issues.  Stormwater management planning would incorporate best management practices and water pollution controls necessary to maintain compliance with the Federal Water Pollution Control Act and Ohio Water Pollution Control Act. The remaining construction activities would be performed during low flow conditions.  Stormwater management and erosion control systems would be implemented during construction, including silt fences, mulch and/or earthen berms, temporary seeding, hay bales, inlet protection, temporary collection basins, diversion ditches, and construction entrances.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities.

COMPENSATORY MITIGATION PLAN: The applicant proposes to compensate for the loss of aquatic resource functions as a result of the unauthorized discharge and additional proposed discharge of dredged and/or fill material into a total of 1.102 acres of jurisdictional wetland by purchasing 1.7 non-forested wetland credits the from the North Coast Regional Council of Park Districts’ In-Lieu Fee Program within the Tuscarawas River watershed.

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 Ohio EPA. 

HISTORIC AND CULTURAL RESOURCES: The National Register of Historic Places (NRHP) has been consulted, and it has been determined there are no historic properties currently listed on the NRHP within the area to be affected indirectly or directly affected by the proposed work. No previously identified Ohio Historic Inventory properties, NRHP properties, National Historic Landmark properties, or Consensus Determination of eligibility files are located within, adjacent to, or within the viewshed of the proposed project area.  We have determined the proposed project would have no effect on historic properties.  A copy of this Public Notice will be furnished to the Ohio Historic Preservation Office for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

THREATENED & ENDANGERED 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 (Myotis septentrionalis), as well as the threatened eastern massasauga (Sistrurus catenatus).  Minimal tree clearing occurred prior to construction in conjunction with the proposed project.  The applicant has indicated that no additional tree clearing is proposed for the project.  The Corps has determined the proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.

The Corps has consulted the most recently available information, and has determined the proposed project does not provide suitable habitat for the eastern massasauga.  The Corps has determined the project would have no effect on the eastern massasauga. 

This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determination and 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 EFFECT:  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 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 approve, 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

Huntington District

ATTN: CELRH-RD-N (Public Notice No. LRH-2018-483-TUS-UNT to Nimisila Creek)

502 Eighth Street

Huntington, West Virginia 25701-2070.

Please note names, addresses, and comments submitted 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. 

If you have any questions regarding this public notice, please contact Nicole Marisavljevic at the above address, by telephone at (330) 365-4273, or via email at