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LRH 2018-288-ELK

Published Nov. 1, 2019
Expiration date: 11/30/2019

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:                        Mr. Andy Boyd
                                              ATB Real Estate Holding Company LLC
                                              120 McGovern Road         
                                              Charleston, West Virginia  25312

LOCATION:  The proposed project, referred to as the Elkview Commons Development Project (Elkview Commons), would be located within an approximate 44-acre parcel near Elkview, in Kanawha County, West Virginia, at approximately latitude 38.45566°N, longitude -81.49134°W. Please reference attached Sheet 1 of 4.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization for the proposed discharge of dredged and/or fill material into unnamed tributaries (UNT) to Little Sandy Creek to facilitate the construction of the Elkview Commons.  The proposed 13-acre development would include the construction of a new mixed-use commercial development, associated paved parking and access roads, and storm water control basins (see Sheets 2 through 4).  Implementation of the proposal would result in the discharge of permanent fill material below the ordinary high water mark of 1,669.24 linear feet (lf) of four (4) streams, as described in the attached Table 1.  Proposed discharges of fill material include discharges resulting from cut/grade/fill work within the site, culvert replacement and/or installation, and the installation of storm water control features.  Plans of the proposal are attached to this notice.

ALTERNATIVES ANALYSIS:  As a result of implementation of the proposal, dredged and/or fill material would be discharged into 1,669.24 lf of four (4) streams.  No wetlands or other special aquatic sites would be affected by the discharge of dredged and/or fill material. The project does not require access or proximity to or siting within waters of the United States to fulfill its basic purpose and is considered a non-water dependent activity.  The applicant has submitted an alternatives analysis for review.  The applicant’s alternatives analysis includes an assessment of a “no-action” alternative, a preferred alternative with two on-site design configurations, and one off-site alternative.  Under the no action alternative, no discharge of dredged and/or fill material into waters of the United States would occur.  The applicant has indicated this alternative would not meet the overall project purpose.  Based on the alternatives analysis, the applicant has indicated the other alternatives considered would result in greater costs and socioeconomic impacts, and are not feasible alternatives considering logistics and topography.  A complete copy of the applicant’s alternative analysis can be reviewed, by appointment, at the above address.  No permit will be issued unless the alternatives 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 discharges of dredged and/or fill material into these waters.  If waters of the United States cannot be avoided, then impacts must be minimized.  The applicant has indicated avoidance and minimization efforts were incorporated into the project development plan.  Eleven (11) streams, totaling 3,159.42 lf, are located within the project area.  According to the information provided, a total of approximately 1,490.18 lf of seven (7) streams (47%) would be avoided completely.  The applicant states best management practices would be implemented to minimize downstream sedimentation and turbidity.  The applicant would also comply with all terms and conditions of the Section 401 Water Quality Certification and the National Pollutant Discharge Elimination System permit. 

COMPENSATORY MITIGATION PLAN:   To compensate for the permanent discharge of dredged and/or fill material into 1,669.24 lf of stream, the applicant proposes to purchase stream credits from the WVDEP’s In-Lieu Fee Program.  Utilizing the West Virginia Stream and Wetland Valuation Metric (WV SWVM), the applicant has indicated a total of 1,412 stream credits would be required.  As part of our evaluation, the Corps will review the applicant’s WV SWVM calculation sheets for accuracy.  The proposed mitigation proposal is open to comment and is subject to change based on comments received.  After review of all the submitted information the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit. 

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 WVDEP.

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 that would be indirectly or directly affected by the proposed work.  There are no resources eligible for inclusion on the NRHP within the overall project area.  The applicant has consulted with the West Virginia Division of Arts, Culture, and History, the State Historic Preservation Office (SHPO). In a letter dated July 5, 2019 (FR # 19-1162-KA), the SHPO indicated no eligible architectural resources were present at the subject site. Additionally, the SHPO indicated the proposal would have no effect on archaeological resources.  The Corps has determined the proposal would have no potential to cause effects to any property eligible or potentially eligible for listing on the NRHP.  A copy of this Public Notice will be sent to the SHPO for their review.  Comments concerning archaeological sensitivity of the project area should be based upon collected data.

ENDANGERED AND THREATENED SPECIES: The proposed project is located within the known or historic range of the following endangered (E) or threatened (T) species:

  • Indiana bat (E), Myotis sodalis
  • Northern long-eared bat (T), Myotis septentrionalis
  • Virginia big-eared bat (E), Corynorhinus (=Plecotus) townsendii virginianus
  • Gray bat (E), Myotis grisescens
  • Diamond darter (E), Crystallaria cincotta
  • Northern riffleshell mussel (E), Epioblasma torulosa rangiana
  • Pink mucket pearly mussel (E), Lampsilis abrupta
  • Rayed bean mussel (E), Lampsilis abrupta
  • Snuffbox mussel (E), Epioblasma triquetra
  • Clubshell mussel (E), Pleurobema clava
  • Fanshell mussel (E), Cyprogenia stegaria
  • Sheepnose mussel (E), Plethobasus cyphyus
  • Spectaclecase mussel (E) Cumberlandia monodonta
  • Tubercled blossom mussel (pearly mussel) (E) Epioblasma torulosa torulosa.

The Corps has consulted the most recently available information, including the United States Fish and Wildlife Service’s (USFWS) Information for Planning and Consultation Database (IPaC), as well as information provided by the applicant, and has determined the aquatic resources within the subject site do not provide suitable habitat for the aforementioned mussel species or the diamond darter. The proposal would not occur within the diamond darter critical habitat boundaries. The Corps has determined the project would have no effect on the diamond darter, the northern riffleshell mussel, pink mucket pearly mussel, rayed bean mussel, snuffbox mussel, clubshell mussel, fanshell mussel, sheepnose mussel, spectaclecase mussel, or the tubercled blossom pearly mussel.  An acoustic bat survey was conducted within the site in August 2019.  No federally-listed threatened or endangered bat species were detected during the acoustic survey.  Based on the information provided, the Corps has determined the proposed project may affect, but is not likely to adversely affect the Indian bat, Virginia big-eared bat, and gray bat.  Additionally, the northern long-eared bat would be covered under the 4(d) Rule. 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 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 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-2018-288-ELK

502 8th Street

Huntington, West Virginia 25701


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 Lauren Pritt of the South/Transportation Branch by telephone at (304) 399-5710 or by email at