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LRH 2019-388-GMR

Published May 23, 2019
Expiration date: 6/22/2019

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.  This notice serves as the United States Army Corps of Engineers’ (Corps) request to the Ohio Environmental Protection Agency (OEPA) to act on the Section 401 Water Quality Certification for the following application:


APPLICANT:            Mr. John R. Harman

                                    Martin Marietta Materials, Inc.

                                    9277 Centre Pointe Drive, Suite 250

                                    West Chester, Ohio 45069


LOCATION:  As depicted on the attached Sheet 1 of 2, the proposed project would be located within the watershed of the Great Miami River (Latitude 39.322188, Longitude -84.62405) on a 22.95-acre parcel at 107 River Circle Fairfield, in the City of Cincinnati, Butler County, Ohio.  The waters on-site flow into Indian Creek, a direct tributary of the Great Miami, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge approximately 3,985 cubic yards (cy) of dredged and/or fill material into approximately 2.47 acres of one (1) palustrine forested (PFO) wetland (reference attached Table 1) in conjunction with the proposed Fairfield Plant Expansion Project.  The overall development would include the expansion of an existing dredge lake to recover significant mineral reserves for the local construction market.  Site development would involve the removal of trees and overburden.  Removed materials would be used on-site for reclamation of the existing lake shoreline.  The applicant would maintain a 200-foot buffer from the shoreline of the Great Miami River.  Additionally, a 150-buffer would be maintained from the abutting stream (Indian Creek).  A schematic of the proposed project is attached to this notice (Sheet 2 of 2).

ALTERNATIVES ANALYSIS:  As a result of the proposal, fill material would be discharged into approximately 2.47 acres of one (1) PFO wetland.  The project does not require access or proximity to or siting within the waters of the United States to fulfill its basic purpose and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state 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 this presumption prior to receiving authorization for the discharge of dredged and/or fill material.  The applicant has submitted an 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 review of the alternative analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall 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 the impacts must be minimized.  Approximately 2.47 acres of one (1) PFO wetland is located within the proposed project area that would be impacted by the proposed activity.  The applicant proposes to avoid approximately 4.68 acres of PFO wetland located on-site.  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.  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:  To compensate for the loss of waters of the United States associated with the proposed project, the applicant proposes to purchase 6.2 acres of forested wetland mitigation credits from the Ohio Stream and Wetland In-Lieu Fee Mitigation Program.

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.  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.  The Corps has determined no historic properties eligible or potentially eligible for inclusion on the NRHP would be affected by the proposed project.  A copy of this public notice will be furnished to the Ohio State Historic Preservation Office for their review and response.  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 endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), the endangered running buffalo clover (Trifolium stonloniferum), the endangered rayed bean mussel (Villosa fabalis), and the threatened eastern massasauga rattlesnake (Sistrurus catenatus).  The 22.95-acre site is vacant, generally flat land, with one (1) PFO wetland totaling 7.15 acres located within the project site.  The proposed project area could provide potential habitat for the Indiana bat and the northern long-eared bat.  The applicant proposes to clear approximately 15.26 acres of forested habitat to facilitate the construction of the proposed project. Via letter dated May 1, 2019 (TAILS# 03E1500-2019-TA-0987), the United States Fish and Wildlife Service (USFWS) determined the proposed project location is within the immediate vicinity of multiple confirmed captures of female Indiana bats indicating the presence of a maternity colony of Indiana bats.  Therefore, the USFWS has requested the applicant to complete a mist net survey in accordance with Endangered Species Act 1973, as amended (16 U.S.C. 1531 et seq) Tails # 03E15000-2019-TA-0987.  The Corps has determined the mist net survey should be conducted per the USFWS letter dated May 1, 2019.    No permit will be issued until it has been demonstrated that implementation of the proposed project would not adversely affect the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical.  The Corps has consulted the most recently available information and information provided by the applicant and has determined the proposed project does not provide suitable habitat for the running buffalo clover and rayed bean mussel. Therefore, the Corps has determined the project would have no effect on the running buffalo clover and rayed bean mussel. The proposed project may provide suitable habitat for the eastern massasauga rattlesnake. Therefore, the Corps has determined the project may affect, not likely to adversely affect the eastern massasauga rattlesnake.  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 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 the protection and the 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; 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:  LRH-2019-00388-GMR

502 Eighth Street

Huntington, WV 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.  Thank you for your interest in our nation’s water resources.  If you have any questions concerning this Public Notice, please contact Mr. Aca C. Ramey of the North Branch, at 304-399-5166, by mail at the above address, or by email at


Table 1.  Proposed discharges of dredged and/or fill material into waters of the United States associated with the Fairfield Plant Expansion Project, in Cincinnati, Butler County, Ohio (Latitude 39.322188, Longitude -84.62405)

Aquatic Resource

Latitude & Longitude

(°N)            (°W)

Flow Regime or Cowardin Class

Estimated amount of aquatic resource in review area

Acres (ac) of Fill

Wetland 1



Forested Wetland

7.15 ac

2.47 ac



2.47 ac