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LRH 2019-00325-OHR

Published May 6, 2019
Expiration date: 6/4/2019

PUBLIC NOTICE: The District Engineer has received a mitigation plan to establish a wetland and/or stream compensatory mitigation bank for Federal and State permits as described in this Public Notice.  Issuance of a public notice regarding proposed mitigation banks is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 332).  The purpose of this Public Notice is to inform you of the proposed mitigation bank and 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.

INTERAGENCY REVIEW TEAM: As indicated in the U.S. Army Corps of Engineers (Corps) regulations [33 CFR 332.8(b)], the District Engineer has established an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments.  The Corps Huntington District (Regulatory Division) is the lead district for the state of West Virginia (WV) and chairs (or leads) the WV IRT.  The WV IRT consists of the following federal and state resource agencies: Corps Huntington and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA), U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS), WV Department of Environmental Protection (WVDEP) and WV Division of Natural Resources (WVDNR).

REGULATORY PROGRAM: Since its early history, the 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. The Regulatory Program is committed to protecting the Nation’s aquatic resources and navigation capacity, while allowing reasonable development through fair and balanced decisions.  The Regulatory Program is founded upon two (2) primary authorities, which are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act.

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 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 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 this proposed mitigation bank.

BANK SPONSOR:   Environmental Banc & Exchange, LLC (EBX)

137 ½ East Main Street, Suite 210

Oak Hill, West Virginia 25901


LOCATION: The proposed mitigation bank site is located on an approximate 208-acre parcel along Sandy Creek and unnamed tributaries of Sandy Creek, southwest of Shirley, in Tyler and Doddridge Counties, West Virginia (latitude 39.373739, longitude -80.782256). The mitigation bank site includes Sandy Creek, unnamed tributaries to Sandy Creek, existing wetlands, and the adjacent floodplains and upland corridors. Sandy Creek is a direct tributary to the Ohio River.

DESCRIPTION OF THE PROPOSED WORK: The sponsor, received approval for the EBX Umbrella Mitigation Banking Instrument (UMBI) on November 3, 2011 (LRH-2005-01441-GAU).  As defined in 33 CFR 332.8, a UMBI is a single mitigation banking instrument which includes provisions regarding the authorization of subsequent or additional mitigation bank sites.  As additional sites are selected, they must be proposed and approved (by the WV IRT) under an existing UMBI. Therefore, the proposed establishment of Sandy Creek Mitigation Bank proposal is being evaluated as modification to EBX’s UMBI.

On the behalf of EBX, Resource Environmental Solutions, LLC (RES) has submitted a Prospectus to the Huntington District Corps and WV IRT proposing the development and operation of a stream and wetland mitigation bank. The submitted prospectus proposes a single project or mitigation bank composed of multiple phases (or site specific mitigation site plans), which involves the establishment, design, construction, and operation of a compensatory stream and wetland mitigation bank to be known as the Sandy Creek Mitigation Bank. The purpose of the mitigation bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts to jurisdictional or regulated streams and wetlands within the specified service area (map enclosed).

The primary service area would be the Middle Ohio North watershed. Many of the streams and wetlands within this watershed have been degraded due to current and historic agricultural, silvicultural, development, and resource extraction activities. The proposed bank would involve the enhancement, restoration, establishment and preservation of both streams and wetlands as well as their associated riparian zone and buffer areas as those terms are defined in the Mitigation Rule, mentioned above. The Sandy Creek Mitigation Bank would implement bioengineering measures and natural design techniques to accomplish restoration of aquatic resources and conserve the overall aquatic ecosystem in an effort to provide ecological benefits, including improvements to water quality, fish and wildlife habitat, erosion control, and flood conveyance and storage within the watershed.

Mitigation banks are defined as a site, or suite of sites, where resources (e.g. wetlands, streams, riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by Department of the Army permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act.  In general, units of restored, established, enhanced, or preserved streams (or wetlands) are expressed as “credits” which may be subsequently withdrawn to offset “debits” incurred at a project development site.  The Corps is responsible for authorizing the use of a particular mitigation bank on a project-specific basis and determining the number and availability of credits required to compensate for proposed impacts.  Decisions rendered by the Corps will fully consider all comments submitted as part of the permit evaluation process.  In areas where a functional or condition assessment or other suitable metric is not available, a minimum one-to-one acreage (for wetlands) or linear foot (for streams) compensation ratio must be applied in order to achieve a federally mandated “no net loss of aquatic resources.”  Wetland credits would correlate with wetland acreage and classification (i.e. emergent, scrub-shrub and forested).  Stream credits would correlate with linear feet (lf) or acceptable forms of assessments and classification of streams.  Acceptable forms of assessments would include those based upon best available science that can be measured or assessed in a practicable manner.

The proposed primary Geographic Service Area (GSA) would be the Middle Ohio North Watershed as defined by the 8-digit Hydrologic Unit Code (HUC) No. 05030201.  The Bank Sponsor has also proposed four (4) secondary GSA’s, which include the Middle Ohio South Watershed (05030202), Little Kanawha Watershed (05030203), the Upper Ohio North Watershed (05030101), and the Upper Ohio South Watershed (05030106). These areas would service projects on a case-by-case basis as determined by the Corps and the WV IRT.

The goal of the Bank is to restore and preserve self-sustaining, functional wetlands and stream corridors to replace the functions and values lost due to unavoidable adverse impacts to streams from past land use (i.e., agricultural), gas infrastructure, and unimproved roads within the region.  The Bank is anticipated to include the channel of Sandy Creek, unnamed tributaries to Sandy Creek, existing wetlands, as well as the adjacent riparian buffers, floodplains, and upland areas.  Some of the targeted functions include improvements to wildlife habitat, water quality, flood conveyance and storage, and erosion control through the implementation of natural channel design and the re-establishment of riparian buffers and the enhancement and re-establishment of wetland and associated buffers. 

The sponsor proposes to meet the Bank’s goals through the restoration, enhancement, establishment and preservation of contributing perennial, intermittent and ephemeral streams and wetlands as summarized below:

Restoration:  Restoration is proposed for 24,054 linear feet (lf) of stream channel.  Restoration activities may include, but are not limited to, natural channel design, channel cross section and pattern alterations, bank stabilization and bioengineering techniques, grade control and in-stream structures, the reconnection of contributing streams to the main channel, the establishment of forested riparian buffers, and the removal of detrimental land use activities (i.e. timbering) in appropriate riparian corridors.  Restoration of the dimension, pattern and profile of stream reaches is proposed to improve the overall channel condition, stabilize channel banks, and re-establish hydraulic connectivity to flood prone areas. All restoration corridors would also be improved through the implementation of invasive species management and a native planting plan.


Enhancement: Enhancement is proposed for 12,308 lf of stream channel through the implementation of invasive species management and native planting plan.


Establishment: Establishment is proposed for 1,025 lf and may include, but are not limited to, natural channel design techniques, channel cross section and pattern establishment, bank stabilization and bioengineering techniques, grade control and in-stream structures, the connection of contributing streams to the main channel, improvements to stream sinuosity as well as the establishment of forested riparian buffers.


Preservation: Preservation is proposed for 20,179 lf of existing stream along with buffers to aid in the preclusion of incompatible land uses and protection of high quality resources.


The sponsor proposes to meet the Bank’s goals through re-establishment, enhancement, and preservation of adjacent wetlands as summarized below.  Mitigation activities for the wetlands would focus on improving epifaunal substrate/available cover, vegetative protection, and riparian zone width.

Enhancement: Enhancement is proposed for 0.31 ac of existing wetlands through the application bioengineering principles, invasive species management and supplemental planting, and additional buffer protection.


Re-establishment: Re-establishment is proposed for 3.00 acres of additional wetlands though the application bioengineering principles, topographic modification, re-establishment of contributing hydrology, invasive species management supplemental planting and re-establishment of buffers areas.


Preservation: Preservation is proposed for 0.77 ac of existing wetlands along with buffers to aid in the preclusion of incompatible land uses and protection of high quality resources.


Figure 1 of 4 shows the location of the proposed mitigation bank, Figure 2 of 4 shows the proposed service area for the proposed mitigation bank, Figure 3 of 4 shows the existing conditions of the proposed mitigation bank, and Figure 4 of 4 shows the proposed resource development of proposed mitigation bank.  


In accordance with the Rule, performance standards and success criteria, established by the application of conditional assessments and/or suitable metrics, would be outlined and implemented as requirements.  Preliminary design plans of the proposed establishment, restoration and enhancement work are attached to this notice. The full Prospectus is available for review upon request.

WATER QUALITY CERTIFICATION: In accordance with Nationwide Permit No. 27 [under the January 6, 2017 Federal Register, Reissuance of Nationwide Permits (82 FR 1860)], a general Section 401 Water Quality Certification with general conditions imposed applies for the proposed project. 

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The NRHP has been consulted and it has been determined there are no historic properties currently listed on the National Register within the area to be affected by the project.  The Corps has determined the proposed project would have no effect on historic properties.  A copy of this Public Notice and the Corps’ determination regarding effects to historic properties will be furnished to the State Historic Preservation Office for their review and response.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

THREATENED & ENDANGERED SPECIES: This Public Notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended).  Three (3) federally listed endangered species, the Indiana bat (Myotis sodalis), the Clubshell mussel (pleurobema clava), and the Snuffbox mussel (Epioblasma triquetra) and one (1) federally threatened species, the northern long-eared bat (Myotis septentrionalis) may occur within the proposed project area.

The project would involve stream and wetland re-establishment, restoration, enhancement, and preservation activities. The project would include selective removal of timber to facilitate access and obtain materials for installation of in-stream structures. These grade controls would be constructed in consideration of bioengineering and natural stream design principles for improved stability and to promote hydrologic connectivity. There is no critical habitat at this location nor does known Indiana bat or northern long-eared bat hibernacula exists within the work areas.  The Corps has consulted the most recently available information and determined the proposed project may affect (in a positive aspect), but would not likely adversely affect either the Indiana bat or the northern long-eared bat.

Based on the project location within headwater areas, there are no direct effects to consider with respect to freshwater mussel species; however, indirect effects could occur as result of the restoration activities. Best management practices would be implemented in order to reduce any increases to suspended solids within downstream resources. The Corps has determined the proposed project would have no effect on freshwater mussel species.

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 COMMENT: Any person who has an interest that may be adversely affected by the approval of this mitigation bank 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.  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.  Interested parties are invited to state any objections they may have to the proposed work.  The decision whether to approve this mitigation bank 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.  Any person may submit cumulative impact information, which is substantive and specifically associated with the proposed action.  In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, USEPA, 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.

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 this proposed mitigation bank.  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 comments received will be considered by the Corps to determine whether to approve, modify, condition or deny 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:

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2019-00325-OHR

502 Eighth Street

Huntington, West Virginia 25701-2070.

Please note the comments received 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 Mr. Justin Elkins at the above address, by telephone at (304) 399-5271, or by email at