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LRH 2018-00672-LMR

Published Nov. 26, 2019
Expiration date: 12/24/2019

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 (U.S.) Army Corps of Engineers’ (Corps) request to the Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application.    


APPLICANT:        Ohio Department of Transportation (ODOT)

1980 West Broad Street, Mail Stop 4170

Columbus, Ohio 43223


LOCATION:  The proposed project, referred to as HAM-71-9.92/10.75, PID 99777, is located along Northbound Interstate (I) 71, between the Red Bank Road Interchange and the Stewart Road exit ramp, in Silverton Township, Hamilton County, Ohio.  The project has a proposed center coordinate of 39.180 North, 84.397 West.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization for the proposed discharge of dredged and/or fill material into 1,659 linear feet (lf) of waters of the United States, as indicated on the attached Table 1, in conjunction with the construction of the HAM-71-9.92/10.75, PID 99777 project.  The applicant has indicated erosion is impacting the stability of the I-71 roadway embankment.  To address this issue, the applicant has proposed to install gabion walls and rock channel protection along the banks of Duck Creek and its tributaries.  Plans of the proposal are attached to this notice.

ALTERNATIVES ANALYSIS:  As a result of the proposal, permanent fill material would be discharged into 1,040 lf of Duck Creek, 28 lf of UNT# 2 Duck Creek, and 47 lf of Stream 12 and temporary fill material would be discharged into 507 lf of Duck Creek and 42 lf of UNT# 2 Duck Creek.  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 U.S. to fulfill its basic purpose and is considered a non-water dependent activity.  The applicant has submitted an alternatives analysis for review.  The applicant completed an analysis of five different alternatives that could potentially meet the project purpose and need.  The applicant has indicated the preferred alternative, as described above, is the least environmentally damaging practicable alternative.  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 U.S., consideration must be given to avoiding waters of the U.S.  If waters of the U.S. cannot be avoided, the discharge of fill material into waters of the U.S. must be minimized.  Approximately 1,854 lf of one perennial stream, 244 lf of two intermittent streams, 401 lf of three ephemeral streams, 0.039 acre of two emergent wetlands, and 0.008 acre of one intermittent ditch, subject to Section 404 Clean Water Act regulation, are present within the project area.  According to the applicant, on-site alternatives were considered and avoidance and minimization efforts were incorporated into the project design.  The project has been designed to completely avoid the discharge of fill material into 1,342 lf of streams, 0.039 acre of wetlands, and 0.008 acre of ditch within the project area.  The applicant has indicated that the proposed discharges of fill material into waters of the U.S. are unavoidable and that no fill material would be discharged in excess of the minimum needed to complete the project.  Minimization of adverse effects to aquatic resources would also be achieved through adherence to the applicant’s Construction and Material Specifications and the implementation of construction Best Management Practices for sediment and erosion control.

COMPENSATORY MITIGATION PLAN:  To compensate for the discharge of permanent fill material into 1,115 lf of four streams (Hydrologic Unit Code [HUC] 05090202), the applicant proposes to deduct 1,115 lf of stream mitigation credit from the ODOT’s Tait Station Pooled Stream Mitigation Site in the Great Miami watershed (HUC 05080002).

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 Ohio Environmental Protection Agency.

HISTORIC AND CULTURAL RESOURCES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between the Federal Highway Administration (FHWA) and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 106 of the National Historic Preservation Act (NHPA). 

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.  Based on previous cultural resources surveys, the applicant determined the proposed project is a type of undertaking with minimal potential to cause effects to historic properties and the project is not part of a larger undertaking.  In support of our independent permit decision, the Corps intends to rely upon the information collected and consultation performed by the ODOT regarding the effects to historic properties.  A copy of this Public Notice will be sent to the Ohio History Connection, the State Historic Preservation Office, for review.  Comments concerning archaeological sensitivity of the project area should be based upon collected data.

THREATENED AND ENDANGERED SPECIES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between the FHWA and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 7 of the Endangered Species Act (ESA).  The proposed project is located within the known or historic range of the following endangered (E) or threatened (T) species:


  • Indiana bat (Myotis sodalis) (E);
  • Northern long-eared bat (Myotis septentrionalis) (T);
  • Running buffalo clover (Trifolium stoloniferum) (E);
  • Fanshell mussel (Cyprogenia stegaria) (E);
  • Pink mucket pearly mussel (Lampsilis abrupta) (E);
  • Rayed bean mussel (Villosa fabalis) (E);
  • Sheepnose mussel (Plethobasus cyphyus) (E); and
  • Snuffbox mussel (Epioblasma triquetra) (E).


The applicant has determined the project would have no effect on the running buffalo clover or the listed mussel species.  In accordance with the Programmatic Biological Opinion (PBO) for the Indiana bat and the northern long-eared bat issued by the U.S. Fish and Wildlife Service on February 29, 2016, the applicant has determined the project may affect, but would not be likely to adversely affect the Indiana bat and the northern long-eared bat, and has committed to implement avoidance and minimization measures.  The U.S. Fish and Wildlife Service concurred with the applicant’s determinations and that the project is consistent with the provisions of the PBO.

In support of our independent permit decision, the Corps intends to rely upon the information collected by the ODOT, and consultation performed by the ODOT, regarding the effects to threatened or endangered species.  This Public Notice serves as a request to the U.S. Fish and Wildlife Service 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 ESA 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 U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR part 230).  The decision 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 benefit which 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.  A permit will be granted unless its issuance is found to be contrary to the public interest.

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.  The comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  The 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. 

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, Huntington District

ATTN: CELRH-RD-S-OT Public Notice No. LRH-2018-00672-LMR

Building 10 / Section 10

PO Box 3990

Columbus, Ohio 43218-3990

Please note 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 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 Tim Long of the South/Transportation Branch, at (614) 692-4660, by mail at the above address, or by email at


Table 1 –Nature of Proposed Discharges into Waters of the U.S.

Aquatic Resource ID

Type of Fill Activity



(Linear Feet)

Fill Area


Fill Volume (Cubic Yards)

Duck Creek

Permanent – Concrete, Gabion Walls/Baskets, and Rock Channel Protection (RCP)




Temporary – Temporary Construction Access (TAF)




UNT# 2 –Duck Creek

 Permanent - RCP




UNT# 4 –Duck Creek

Temporary - TAF




Stream 12

Permanent - RCP