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LRH 2001-1191-LKR

Published Aug. 23, 2019
Expiration date: 9/18/2019

TO WHOM IT MAY CONCERN:  The following application has been submitted for Department of the Army (DA) authorization 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 West Virginia Department of Environmental Protection (WVDEP) 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 overall project, referred to as the Scott Miller Hill Bypass Project, would be located in the unnamed tributaries of the Middle Fork Reedy Creek, an unnamed tributary of Mount Run, unnamed tributaries of the Left Fork of Reedy Creek, the Left Fork of Reedy Creek, Tucker Run, unnamed tributaries of Tucker Run, and their associated wetlands and open waters, near Reedyville, Roane County, West Virginia.  The overall proposed highway project begins at Latitude 38.826992 and Longitude -81.464550 and ends at Latitude 38.792876 and Longitude -81.407091, as shown on the attached plans.

DESCRIPTION OF PROPOSED WORK:  The overall proposed project involves the relocation of approximately 5.5 miles of U.S. Route 33, referred to as the Scott Miller Bypass.  The applicant has requested a DA authorization for the proposed discharges of dredged and/or fill material into waters of the U.S. in conjunction with the construction of the bypass.  The new alignment would be a two-lane road with truck climbing lanes.  Construction of Scott Miller Hill Bypass would result in the permanent discharge of dredged and/or fill material into 19,734 linear feet (lf) of eighty streams, 1.836 acres (ac) of thirty-five wetlands, and 0.243 ac of three open waters at fifty-six (56) single and complete project locations, as described in the attached tables.  The applicant has also requested a DA authorization to temporarily discharge fill material into 629 lf of three streams and 0.127 ac of one wetland to facilitate project construction, as described in the attached tables.  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 1-29) of the proposal are attached to this notice.   

LEAD FEDERAL AGENCY: The Federal Highway Administration (FHWA) is the lead Federal agency for the Scott Miller Hill Bypass project.  In accordance with the National Environmental Policy Act (NEPA), an Environmental Assessment (EA), dated December 1997, was prepared and approved by the West Virginia Department of Transportation-Division of Highways (WVDOH) and the FHWA.  A subsequent Finding of No Significant Impact (FONSI) was signed in December 1998.  Due to the amount of time that has passed since the FONSI, the FHWA and WVDOH have completed a re-evaluation of the above document, dated April 2019. 

ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be permanently discharged into 19,734 lf of stream, 1.836 ac of wetland and 0.243 ac of open water at 56 single and complete project locations as described in the attached tables.  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 and seven (7) roadway alignments.  Based on their analysis, the applicant determined the Alternative 1 is their preferred alternative, stating this alternative requires the least amount of right-of-way acquisition and has fewer ecological and cultural resource 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 areas 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 80 streams (19,734 linear feet), 35 wetlands (1.836 acres), and three (3) open waters (0.243 acre), subject to Section 404 of the Clean Water Act regulation, are located within the proposed overall 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 overall proposed project would avoid 28.4% of the on-site streams and 37.2% 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:   The applicant has indicated four box culverts would be installed within Tucker Run and Stream S-3.  The applicant states these culverts would be sized for bankfull width and would be countersunk.  Given this, the applicant proposes the impacts to Tucker Run and Stream S-3 are minimal in the absence of any mitigation.  As mitigation for the remaining projects, the applicant proposes to compensate for the permanent discharge of dredged and/or fill material into the remaining streams described in Table 1 by purchasing 11,128.489 stream credits from an approved mitigation bank and/or, if bank credits are not available, by purchasing 12,412.739 stream credits from the West Virginia In-Lieu Fee Program.  To compensate for the permanent discharges of dredged and/or fill material into wetlands and open waters as described in the attached Tables 3 and 5, the applicant proposes to purchase 2.079 wetland credits from an approved mitigation bank and/or, if bank credits are not available, by purchasing 4.404 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).  The applicant’s SWVM forms are currently under review.

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 West Virginia Department of Environmental Protection.

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 Office (SHPOs) in West Virginia.  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 overall 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 overall 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) (NLEB).  The FHWA is the lead Federal agency for the overall project and is responsible for compliance with Section 7 of the Endangered Species Act.  The applicant has consulted with the U.S. Fish and Wildlife Service (USFWS). 

Mist net surveys were conducted within the study area in July 2018.  No Indiana bats were captured during the surveys.  The USFWS has stated that the proposed project may affect, but would not likely adversely affect, the Indiana bat.  The USFWS stated the overall proposed project is not located within any of these radii around known hibernacula or roost trees and will not affect any know NLEB hibernacula, therefore any take of NLEB associated with the project is exempted under the 4(d) rule and no conservation measures are required. 

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-2001-1191-LKR

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, or if you would like to schedule an appointment to view a copy of the application, please contact Sarah Workman of the South/Transportation Branch by telephone at (304) 399-5710 or by email at