US Army Corps of Engineers
Huntington District

Disclaimer

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LRH 2019-259-TUS

Published Sept. 6, 2019
Expiration date: 10/5/2019

TO WHOM IT MAY CONCERN: The district engineer has received a request to modify an approved in-lieu fee program (ILFP) instrument to implement an ILFP mitigation site, in the State of Ohio (OH), for Federal and State permits as described in this Public Notice.  Issuance of a Public Notice regarding proposed ILF projects 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).  In addition, the proposed ILF project has been submitted for authorization under the provisions of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.  The United States (U.S.) Army Corps of Engineers (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 proposal. The purpose of this Public Notice is to inform you of the proposed ILF project 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 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 Ohio and chairs the Ohio IRT on all statewide or multiple District prospectuses. The Ohio IRT is presently comprised of the Corps (Buffalo, Huntington, and Pittsburgh Districts), the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Department of Agriculture-Natural Resources Conservation Service, the Ohio Department of Natural Resources, and the Ohio Environmental Protection Agency (Ohio EPA)..

IN-LIEU FEE PROGRAMS: An ILFP involves the restoration, establishment, enhancement and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for Department of the Army (DA) permits.  Similar to a mitigation bank, an ILFP sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the ILFP sponsor.  As ILFP mitigation sites are identified and secured, the ILFP sponsor must submit mitigation plans to the district engineer that include all applicable items listed in 33 CFR 332.4(c)(2) through (14). The mitigation plans must also include a credit release schedule consistent with 33 CFR 332.8(o)(8) that is tied to achievement of specific performance standards. The review and approval of ILF projects will be conducted in accordance with the procedures in 33 CFR 332.8(g)(1), as modifications of the ILF instrument.

 

ILFP SPONSOR:      The Nature Conservancy (TNC)

6375 Riverside Drive, Suite 100

Dublin, Ohio 43017-5045

PURPOSE: The sponsor operates an approved ILFP, which includes the Tuscarawas River watershed (8-digit Hydrologic Unit Code [HUC]: 0504001) as one of its established service areas. The sponsor has submitted a proposal to modify their approved ILFP instrument to incorporate The Wilderness Center ILFP Mitigation Project within the Tuscarawas River watershed. The sponsor has stated the primary objective of the proposed ILFP mitigation project is to restore streams, wetlands, and their associated buffers. The overall goal of the project is to implement a stream and wetland restoration plan that would generate in-kind mitigation credits to fulfill advance credits sold in the Tuscarawas River  watershed as compensatory mitigation for activities authorized by the Corps and/or the Ohio EPA

LOCATION: The proposed ILFP project would be located on a 13.8-acre parcel approximately 1.0 mile northwest of Wilmot, Stark County, Ohio (latitude 39.9839°, longitude -83.7628°).  The proposed ILFP mitigation site is located entirely within the grounds of The Wilderness Center (TWC). TWC is a non-profit organization supporting conservation and environmental science education and is headquartered at the overall 660-acre site. The ILFP mitigation project would involve an unnamed tributary to the Middle Fork Sugar Creek, the adjacent floodplains and riparian corridor, and existing palustrine wetlands. The unnamed tributary to the Middle Fork Sugar Creek is an indirect tributary to the Tuscarawas River, a navigable water of the U.S.  This proposal has been associated with the existing DA file number LRH-2012-00259.

DESCRIPTION OF PROPOSED ACTIVITY: The ILF sponsor has submitted a compensatory mitigation plan to the Corps, Huntington District, proposing to establish and manage one (1) ILFP mitigation site identified as the The Wilderness Center ILFP Mitigation Project.  A complete copy of the March 2019 The Wilderness Center Ohio In-Lieu Fee Program Mitigation Plan, is available for review upon request. The ILFP mitigation project proposes to restore stream and wetland functions that have been lost or impaired as a result of past and present land use practices. These functions include, but are not limited to, water quality, flood attenuation, wildlife habitat, groundwater recharge, ecosystem integrity and hydrologic connectivity.

The sponsor indicates the proposed ILFP mitigation project has been identified and selected in accordance with the Compensation Planning Framework of their approved ILFP instrument. The sponsor proposes to generate approximately 2,304 stream credits and 5.57 wetland credits through restoration, re-establishment, and rehabilitation activities as outlined in Table I below:

 

Table I

The Wilderness Center ILFP Mitigation Project

Proposed Credit Generation

 

 

The sponsor proposes specific performance standards/goals for the ILFP mitigation project based on measures of chemical, physical, and/or biological integrity. The ILFP mitigation project would be annually monitored with respect to the achievement of the performance standards, and reports would be submitted to the Ohio IRT describing the findings of the monitoring reports. The sponsor has indicated financial assurances would be provided to help ensure the ILFP project successfully develops toward meeting its performance standards. A long-term management plan would be developed, including a description of long-term management needs, annual cost estimates for those needs, and a funding mechanism to meet those needs. In addition, the sponsor proposes to provide long-term protection of the 13.8-acre site through the utilization of an environmental covenant for which would prohibit uses incompatible with the goals and objectives of the proposed ILFP project. 

Location and details of the proposed ILFP mitigation project are shown on the attached documents (Figures 1 through 5).

DEPARTMENT OF THE ARMY PERMITS: The establishment and management of the proposed ILF project would be as specified in the modification to the existing ILFP instrument. A Department of the Army permit would be required under Section 404 of the Clean Water Act for activities that would be associated with the project. The proposed ILF project activities would be evaluated under the Nationwide Permit No. 27 described in the January 6, 2017 Federal Register, Issuance and Reissuance of Nationwide Permits (82 FR 1860).

WATER QUALITY CERTIFICATION: The Ohio EPA has granted Section 401 Water Quality Certification for use of Nationwide Permit No. 27 in Ohio.

HISTORIC AND CULTURAL RESOURCES: This undertaking must be reviewed to determine any potential effect to properties that may be eligible for or listed on 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 NRHP within the area to be affected by the proposed ILFP project. 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 potential effects on historic properties.  If you wish to provide comments or objections regarding the effect of the proposed ILFP project on historic properties, please provide this information to our office prior to the close of the comment period.

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).  Two (2) federally-listed endangered species (Indiana bat (Myotis sodalis) and rayed bean mussel (Villosa fabalis)) and three (3) federally-listed threatened species (northern long-eared bat (Myotis septentrionalis), eastern massasauga rattlesnake (Sistrurus catenatus), and eastern prairie fringed orchid (Platanthera leucophaea)) have to potential to occur within the proposed ILFP project area. However, there is no critical habitats in this location must be analyzed along with the endangered species themselves.

The proposed ILFP mitigation project would involve stream and wetland restoration, re-establishment rehabilitation as well as buffer enhancement activities that are expected to result in improvements to the stream, riparian zone, and wetland. Based on the nature of the project, this office has determined the proposed ILFP project may affect, but would not likely adversely affect the Indiana bat, rayed bean mussel, northern long-eared bat, eastern massasauga rattlesnake, and eastern prairie fringed orchid.

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 areas which would be affected by the activities, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

PUBLIC INTEREST REVIEW AND COMMENT:  The proposal is being evaluated 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 the proposed ILF project 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 ILFP project.  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. Any person who has an interest that may be adversely affected by the approval of this ILFP project 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.

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-2012-00259 – UT to Middle Fork Sugar Creek

502 Eighth Street

Huntington, West Virginia 25701-2070

All responses to this notice should reference the public notice number (LRH-2012-00259) and be directed to the Huntington District Regulatory Division at the above address.  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.  Please contact Mr. Wes Barnett with any questions pertaining to this Public Notice or the proposed modification at the above address, by telephone at (304) 399-6905, or by e-mail at wes.barnett@usace.army.mil.