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LRH 2019-566-OHR

Published Nov. 21, 2019
Expiration date: 12/23/2019

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 Highways1900 Kanawha Boulevard
                                                East Building 5, Room 110       
                                                Charleston, West Virginia  25305-0430

LOCATION:  The proposed overall project, referred to as the West Virginia (WV) Route 2, Proctor to Kent Project, would be located in the unnamed tributaries of the Ohio River, Dry Run, Sims Run, Beaver Run and its unnamed tributary, and their associated wetlands, between Proctor and Kent, in Wetzel and Marshall Counties, West Virginia.  The overall proposed highway project begins at Latitude 39.712225 and Longitude -80.822500 and ends at Latitude 39.778475 and Longitude -80.850833, as shown on the attached plans.


DESCRIPTION OF PROPOSED WORK:  The overall proposed project involves the relocation and widening of approximately 5.25 miles of WV Route 2.  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 relocation and widening of an existing roadway.  Construction of WV 2, Proctor to Kent project would result in the permanent discharges of dredged and/or fill material into 3,470 linear feet (lf) of nine (9) streams and 3.76 acres (ac) of five (5) wetlands at eleven (11) single and complete project locations, as described in the attached tables.  Plans (Sheets 1-11) of the proposal are attached to this notice.   


LEAD FEDERAL AGENCY: The Federal Highway Administration (FHWA) is the lead Federal agency for the WV 2, Proctor to Kent project.  In accordance with the National Environmental Policy Act (NEPA), an Environmental Assessment (EA), dated June 2018, 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 April 2019. 


ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be permanently discharged into 3,740 lf of stream and 3.76 ac of wetland at 11 single and complete project locations as described in the attached tables.  The proposals do not require access or proximity to, or siting within, wetlands to fulfill their basic purpose and are considered to be a non-water dependent activities.  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 four (4) roadway alignments.  Based on their analysis, the applicant determined the Alternative 1A, as described above, is their preferred alternative.  The applicant has stated this alternative meets the purpose and need by increasing the roadway capacity of WV 2 and improving safety by reducing the number of driveways and access points to the mainline highway.  The wider paved shoulders and additional roadside clear area would also improve safety.  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 nine (9) streams (3,740 linear feet) and seven (7) wetlands, including one pond (5.325 acres), subject to Section 404 of the Clean Water Act regulation, are located within the overall 5.25 mile long 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 projects.  The applicant’s overall proposed project would avoid 29.4% 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:   To compensate for the permanent discharges of dredged and/or fill material into wetlands as described in the attached Table 1, the applicant proposes to purchase 3.76 wetland credits from an approved mitigation bank and/or, if bank credits are not available, by purchasing 10.3 wetland credits from the West Virginia In-Lieu Fee Program.  The applicant proposes to compensate for the permanent discharge of dredged and/or fill material into the streams described in Table 2 by purchasing 2,227.2 stream credits from an approved mitigation bank and/or, if bank credits are not available, by purchasing 2,497.5 stream credits from the West Virginia In-Lieu Fee Program.  The applicant’s mitigation proposal is described in the attached Tables 3 and 4.  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 (SHPO) in West Virginia.  In 2012 the applicant conducted historic resources surveys.  Seven (7) properties were identified within the overall project area as potentially eligible for listing on the National Register of Historic Places (NRHP).  None of the eligible resources would be directly impacted by the proposed project.  In a letter dated March 15, 2018, the SHPO concurred that the project would have no adverse effect on any of the seven properties.  In addition, archaeological surveys were conducted in 2012.  On February 4, 2014, the SHPO concurred that no further archaeological work is necessary.  The Corps intends to rely upon the information collected by the FHWA, and the consultation previously performed between the FHWA and the SHPO 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 SHPO 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 August 2017.  No Indiana bats or NLEB were captured during the surveys.  The USFWS concurred with the mist net report in April 2018.  The USFWS has stated that no Indiana bats or NLEB are expected to be adversely affected by the proposed project. 


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-2019-566-OHR

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