LRH 2019-468-LMR

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army Permit 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 Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application. 

APPLICANT:  Robert Laing

                         1563 East Dorothy Lane, Suite 202

                          Dayton, Ohio 45429

LOCATION:  As depicted in the attached Project Area – Laing Property, Site Vicinity Map – USGS Springboro, OH Quadrant (Sheet 1 of  3), the proposed 13.65-acre project site, referred to as the Laing Property Mix Use Development Site, is located north of Miamisburg Springboro Road and east of Byers Road in Miami Township, Montgomery County, Ohio (39.60082 latitude, -81.24524 longitude).  As shown on Table 1.0, the proposed discharges of dredged and/or fill material would occur within four (4) wetlands.  These aquatic resources are located in the watershed of an unnamed tributary to Clear Creek, an indirect tributary to the Little Miami River, a navigable water of the United States (Sheet 1 of 3).

DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge dredged and/or fill material into 0.97 acre of four (4) wetlands in order to construct a commercial development that would consist of two (2) 5,000 square foot restaurants, one (1) 5,000 square foot retail building, one (1) 4-story 64,000 square foot hotel, one (1) 2-story 60,000 square foot industrial space, with associated parking lots and attendant features.  Please refer to Table 1 for a summary of the proposed discharge of dredged and/or fill material into waters of the United States.  Plans of the proposal (Sheet 2-3 of 3) are attached to this Public Notice.

ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into 0.97 acre of four (4) wetlands.  The project does not require access or proximity to, or siting within, the wetlands to fulfill its basic purpose and is considered a non-water dependent activity. The Section 404(b)(1) Guidelines state for non-water dependent activities, practicable alternatives that do not involve a discharge into special aquatic sites such as wetlands are presumed to be available, unless clearly demonstrated otherwise. The applicant is required to provide an alternatives analysis that must overcome this presumption prior to receiving authorization for the discharge of dredged and/or fill material. The applicant has submitted an alternatives analysis and it is currently under review. A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address. No permit will be issued until our office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis.

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on these sites.  If waters of the United States cannot be avoided, then the impacts must be minimized. Approximately 0.97 acre of four (4) wetlands and approximately 150 linear feet of one (1) intermittent stream subject to Section 404 Clean Water Act regulation, exist on the project site.  Avoidance and minimization efforts were incorporated into the proposal.  The proposed project has been designed to avoid 100% of the intermittent stream. Stormwater management planning would incorporate best management practices and water pollution controls necessary to maintain compliance with the Federal Water Pollution Control Act and Ohio Water Pollution Control Act.  Stormwater management and erosion control systems would be implemented during construction, including silt fences, mulch and/or earthen berms, temporary seeding, hay bales, inlet protection, temporary collection basins, diversion ditches, and construction entrances.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities.

COMPENSATORY MITIGATION PLAN:  To compensate for the losses of waters of the United States associated with the proposed project, the applicant proposes to purchase 1.0 acre credit of non-forested wetland mitigation credits from the Great Miami Mitigation Bank.  The proposed development is located within the primary service area of the mitigation bank.

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:  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP which would be indirectly or directly affected by the proposed work.  No previously identified Ohio Historic Inventory properties, NRHP properties, National Historic Landmark properties, or Consensus Determination of eligibility files are located within, adjacent to, or within the viewshed of the proposed project area.  The Corps has determined the proposed project would have no effect on historic properties eligible or potentially eligible for inclusion on the NRHP.  A copy of this public notice will be furnished to the Ohio State Historic Preservation Office for their review and response.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), the endangered rayed bean mussel (Villosa fabalis), the endangered snuffbox mussel (Epioblasma triquetra), and the threatened eastern massasauga (Sistrurus catenatus).  The 13.65-acre site consists of existing fallow fields with a forested area in the northern portion, four (4) wetlands, and one (1) intermittent stream.  The proposed project area could provide potential habitat for the Indiana bat, the northern long-eared bat, and the eastern massasauga.  The 13.65-acre site would be cleared and graded by the applicant to facilitate the construction of the proposed project.  The applicant has agreed to conduct tree clearing operations prior to April 1 and after September 30, as recommended by the United States Fish and Wildlife Service (USFWS), to minimize effects on the Indiana bat and the northern long-eared bat.  The Corps has determined the proposed project may affect, but is not likely adversely affect either the Indiana bat, the northern long-eared bat, and the eastern massasauga.  The Corps has consulted the most recently available information and information provided by the applicant and has determined the proposed project area does not provide suitable habitat for the rayed bean mussel and snuffbox mussel.  The Corps has determined the project would have no effect on the rayed bean mussel or snuffbox mussel.  This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determination and 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 the guidelines published by the United States 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 the protection and the 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; 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. 

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 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 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:

United States Army Corps of Engineers

ATTN: CELRH-RD-N

Public Notice No. LRH-2019-468-GMR

502 Eighth Street

Huntington, West Virginia 25701-2070.

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 Andrew Wendt of the North Branch, at (513) 825-4518, by mail at the above address, or by email at andrew.j.wendt@usace.army.mil.