US Army Corps of Engineers
Huntington District Website Website

Disclaimer

The below listed documents may not be readable via Optical Character Recognition. To receive public notices via email, please send an email to LRH.Permits@usace.army.mil indicating that you would like to be placed on the public notice electronic distribution list. Your email should also include the state(s) in which you would like to receive public notices.

LRH 2019-00310-MUS

Published April 8, 2020
Expiration date: 5/7/2020

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 10 of the Rivers and Harbors Act of 1899 and 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 the Section 401 Water Quality Certification for the following application.  

 

APPLICANT:        The Ohio Department of Transportation (ODOT)

1980 West Broad Street, Mail Stop 4170

Columbus, Ohio 43223

           

LOCATION:  The proposed project is located within the Muskingum River, a navigable water of the United States (U.S.), and its unnamed tributaries, adjacent to State Route (SR) 60, approximately 1.5 miles northwest of the Village of McConnelsville, in Morgan County, Ohio.  The proposed project has center coordinates of 39.66531 North, 81.86734 West.

DESCRIPTION OF PROPOSED WORK:  The applicant, the ODOT, has indicated a scour hole has developed along the left descending bank of the Muskingum River at this location, which is compromising the stability of the adjacent SR 60 embankment.  To stabilize the embankment, the ODOT has requested a DA authorization for the permanent discharge of 22,417 cubic yards of dredged and/or fill material into 582 linear feet (1.15 acres) of the Muskingum River.  Material would be discharged into the river from equipment working from the SR 60 embankment and from a work barge in the river.  The work barge would be temporarily anchored in place by steel pins or spud bars anchored to the river bottom. 

The ODOT has indicated a work bench may be necessary to complete the proposal.  The need for the work bench would be determined at the time of project implementation based on water levels in the Muskingum River.  The current application included a request for DA authorization for proposed dredging and sheet pile installation within the Muskingum River for construction of the work bench.  Construction of the work bench would include the excavation of 776 cubic yards of dredged material from the river and the installation of 650 linear feet of sheet piling.    

Ephemeral Stream 1 and Stream 2 flow into the Muskingum River within the proposed project area.  For erosion control, the ODOT has also requested DA authorization for the permanent discharge of two (2) cubic yards of dredged and/or fill material into 22 linear feet (0.001 acre) of Stream 1 and the discharge of one (1) cubic yard of dredged and/or fill material into seven (7) linear feet (0.001 acre) of  Stream 2.  Material would be discharged into Streams 1 and 2 from equipment working along the left descending bank of the Muskingum River.

Table 1 below summarizes the proposed discharges of dredged and/or fill material and work within the Muskingum River.  Plans of the proposal are enclosed with this notice.

 

Table 1 – Nature of Proposed Discharges of Dredged and/or Fill Material and

Work in Navigable Waters of the U.S.

LRH-2019-00310-MUS; MRG-60-13.31, PID: 110131

 

Aquatic Resource ID

Plan Sheets

Work or

Fill Activity

Permanent

Temporary

Volume

(cy)

Area

(ac)

Length (lf)

Volume

(cy)

Area

(ac)

Length (lf)

Muskingum River

3-4

Excavation along descending left bank1

776

0.16

582

0

0.00

0

3-4

Sheet piling installation1

N/A

0.00

0

N/A

N/A

650

Excavation/Work Totals

776

0.16

582

0

0.00

650

Muskingum River

3-13

Erosion Control

22,417

1.15

582

0

0.00

0

Stream 1

3, 6

Erosion Control

2

0.001

22

0

0.00

0

Stream 2

4, 13

Erosion Control

1

0.001

7

0

0.00

0

Fill Totals

22,420

1.152

611

0

0.00

0

 

1. If low water levels occur on the Muskingum River, temporary sheet piling and excavation of a 12-foot wide work bench would occur below the ordinary high water mark.  Spud bars would be necessary for the barge regardless of water levels; this work item is not quantified in the above table

         

ALTERNATIVES ANALYSIS:  As a result of the proposal, permanent dredged and/or fill material would be discharged into 611 linear feet (1.152 acres) of a jurisdictional river and two (2) streams.  No wetlands or other special aquatic sites would be affected by the proposal.  The applicant has submitted an alternatives analysis for review.  The applicant’s alternatives analysis includes an assessment of a “no-action” alternative and four (4) on-site design configurations.  Under the no action alternative, no discharge of dredged and/or fill material into waters of the U.S. would occur.  The applicant has indicated this alternative would not meet the overall project purpose.

The applicant has indicated their preferred alternative, described above, is the least environmentally damaging practicable alternative.  Based on the alternatives analysis, the applicant has indicated the other three (3) on-site alternatives are not practicable due to logistics, topography, and projected project cost.  A complete copy of the applicant’s alternative analysis can be reviewed upon request.  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 avoidance of waters of the U.S.  If waters of the U.S. cannot be avoided, then the discharge of dredged and/or fill material into waters of the U.S. must be minimized.  Waters of the U.S. in the project area include 700 linear feet of the Muskingum River and 184 linear feet of two (2) ephemeral tributaries, Stream 1 and 2.  According to the applicant, avoidance and minimization efforts were incorporated into the project design.  The applicant has indicated no work within the river and no dredged and/or fill material would be discharged into the Muskingum River, Stream 1 or Stream 2 in excess of the minimum needed to construct the proposed 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 permanent discharge of dredged or fill material into 582 linear feet (1.15 acres) of the Muskingum River, 22 linear feet (0.001 acre) of Stream 1, and seven (7) linear feet (0.001 acre) of Stream 2, the applicant proposes to purchase a minimum of 611 advance stream mitigation credits from the Nature Conservancy’s approved In-Lieu Fee program in the Muskingum River watershed (Hydrologic Unit Code [HUC] 05040004).  In addition, the applicant proposes to deduct at least 306 linear feet of stream preservation credit at the Sunday Creek Coal Company 2 pooled stream mitigation area in Hocking County, Ohio within the Hocking River watershed (HUC 05030204).  The applicant’s proposed compensatory mitigation plan is open to comment and is subject to change based on comments received.  

WATER QUALITY CERTIFICATION:  A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain the 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 (MOU) 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.  In accordance with a Programmatic Agreement with the Ohio State Historic Preservation Office (SHPO) executed on November 8, 2017, the ODOT consulted the National Register of Historic Places (NRHP) and determined the proposed project area is within the Muskingum River Navigation Historic District.  The ODOT determined the Muskingum River Navigation Historic District would not be adversely affected by the proposed undertaking.  The Ohio SHPO concurred with a finding of no adverse effect on May 17, 2019.

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 Ohio SHPO 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 MOU 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 area 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)
  • Fanshell mussel (Cyprogenia stegaria) (E)
  • Pink mucket pearly mussel (Lampsilis abrupta) (E)
  • Sheepnose mussel (Plethobasus cyphyus) (E)
  • Snuffbox mussel (Epioblasma triquetra) (E)
  • American burying beetle (Nicrophorus americanus) (E)

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 (USFWS) on February 29, 2016, the ODOT determined the project may affect, but would not adversely affect, either the Indiana bat or the northern long-eared bat, and has committed to implement avoidance and minimization measures.  The USFWS concurred with these determinations and that the project is consistent with the provisions of the PBO.  The ODOT determined the project may affect, but would not be likely to adversely affect listed mussel species.  The USFWS concurred with these determinations on December 6, 2019.  The ODOT has determined the proposal would have no effect on the American burying beetle. 

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 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 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 (1) of this Public Notice.  Comments, information requests, and any public hearing requests should be submitted in accordance with the submission methods listed below.  If no comments are received by the close of the comment period, it will be considered that there are no objections.

COMMENT SUBMISSION:  Comments and requests for additional information should be submitted electronically to Mr. Brett Latta by email to Brett.C.Latta@usace.army.mil.

If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RD-S-OT Public Notice No. LRH-2019-00310-MUS

Building 10 / Section 10

PO Box 3990

Columbus, Ohio 43218-3990

 

Copies should only be provided through the USPS when electronic transmission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark dated on, or prior to, the close of the comment period listed on page one (1) of this Public Notice.

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 Mr. Brett Latta of the South/Transportation Branch, at (614) 692-4654 or by email at Brett.C.Latta@usace.army.mil.