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LRH 2019-830-OHR

Published April 17, 2020
Expiration date: 5/16/2020

TO WHOM IT MAY CONCERN: The District Engineer has received a mitigation plan to establish a wetland and stream compensatory mitigation bank for Federal and State permits as described in this Public Notice.  This Public Notice is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 332).  The purpose of this Public Notice is to inform you of the proposed mitigation bank and to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest.  We hope you will participate in this process.

INTERAGENCY REVIEW TEAM: As indicated in the United States (U.S.) Army Corps of Engineers (Corps) regulations [33 CFR 332.8(b)], the District Engineer has established an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments.  The Corps Huntington District (Regulatory Division) is the lead district for the state of West Virginia (WV) and chairs (or leads) the WV IRT.  The WV IRT consists of the following federal and state resource agencies: Corps Huntington and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA), U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS), WV Department of Environmental Protection (WVDEP), and WV Division of Natural Resources (WVDNR).

Mitigation banks are defined as a site, or suite of sites, where resources (e.g. wetlands, streams, riparian areas) are restored, established, enhanced and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by Department of the Army permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act.  In general, units of restored, established, enhanced, or preserved streams (or wetlands) are expressed as “credits” which may be subsequently withdrawn to offset “debits” incurred at a project development site.  The Corps is responsible for authorizing the use of a particular mitigation bank on a project-specific basis and determining the number and availability of credits required to compensate for proposed impacts.  Decisions rendered by the Corps will fully consider all comments submitted as part of the permit evaluation process.  In areas where a functional or condition assessment or other suitable metric is not available, a minimum one-to-one acreage (for wetlands) or linear foot (for streams) compensation ratio must be applied in order to achieve a federally mandated “no net loss of aquatic resources.”  Wetland credits would correlate with wetland acreage and classification (i.e. emergent, scrub-shrub and forested).  Stream credits would correlate with linear feet (lf) or acceptable forms of assessments and classification of streams.  Acceptable forms of assessments would include those based upon best available science that can be measured or assessed in a practicable manner.

BANK SPONSOR:   Confluence Mitigation Partners, LLC (CMP)

        3616 Far West Blvd., Suite 117-361

        Austin, TX 78731

 

LOCATION: The proposed mitigation bank site involves an approximate 111-acre parcel area located at 12088 Middle Island Road in Alma, in Tyler County, West Virginia (latitude 39.393681, longitude -80.860358).  The proposed mitigation bank site includes unnamed tributaries of/and McGee Run, their adjacent floodplains, and upland corridors. McGee Run is a tributary to Middle Island Creek. Middle Island Creek is a direct tributary to the Ohio River, a navigable water of the United States.

DESCRIPTION OF THE PROPOSED WORK: The bank sponsor has proposed the establishment an Umbrella Mitigation Bank Instrument (UMBI) as well as the development and operation of the McGee Run Mitigation Bank. As defined in 33 CFR 332.8, an UMBI is a single mitigation banking instrument which provides a general framework for subsequent mitigation bank site proposals. As additional sites are selected, they may be incorporated under the mitigation banking instrument as a modification.

The bank sponsor has submitted a mitigation plan to the Huntington District Corps to develop and operate a stream mitigation bank to be known as the McGee Run Mitigation Bank.  The purpose of the mitigation bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts (including the discharges of dredged and/or fill material) to streams within the specified service area.  The proposed bank would involve the restoration, enhancement and preservation of streams and their associated riparian buffers. Channel restoration would involve mostly Priority I Natural Stream Channel Design techniques to re-center the stream channel within the natural valley at appropriate elevations to reconnect them with the floodplain. Additional restoration efforts would include the establishment of wood and rock structures to provide grade control and in-stream habitat. Finally, riparian areas would be planted with native grasses and hardwood, mast-producing tree species.

In general, the goal of the McGee Run Mitigation Bank is to restore, enhance, and preserve many of the ecological functions of the site’s in-channel and riparian habitats as well as to restore, enhance and/or preserve existing palustrine wetlands. The proposed development of the McGee Run Mitigation Bank has been designed to reduce or eliminate non-point source pollution associated with livestock grazing and other nearby agricultural activities while floodplain function would be improved by increasing hydraulic resistance to floodwaters. Additionally, the McGee Run Mitigation would be anticipated to improve water quality functions by restoring native, adjacent woody riparian vegetation, and reducing local bed and bank erosion. In-channel habitat would be improved through channel stabilization and increased habitat heterogeneity, and near-channel habitat for terrestrial species and refugia for aquatic species through the restoration of native, woody riparian vegetation.

The proposed primary Geographic Service Area (GSA) of the McGee Run Bank would be the Middle Ohio North watershed as defined by the 8-digit Hydrologic Unit Code (HUC) 05030201. The proposed secondary GSA includes the Upper Ohio North watershed (HUC 05030101), the Upper Ohio South watershed (HUC 05030106), and the Little Kanawha watershed (HUC 05030203).

The McGee Run Mitigation Bank would involve unnamed tributaries of/and McGee Run, their adjacent floodplains, and upland corridors. Targeted functions include improvements to wildlife habitat, water quality, flood conveyance and attenuation, and erosion control through the implementation of natural channel design and the re-establishment of riparian buffers.  The sponsor proposes to accomplish the bank’s goals through the restoration, enhancement and preservation of contributing perennial, intermittent and ephemeral streams as summarized below:

Restoration:  The bank sponsor proposes to restore 17,798.1 lf of streams.  Restoration modifications may include, but are not limited to, natural channel design, channel cross section and pattern alterations, bank stabilization and bioengineering techniques, grade control and in-stream structures, the reconnection of contributing streams to the main channel, the establishment of forested riparian buffers, and the removal of detrimental land use activities (i.e. timbering) in appropriate riparian corridors.  The restoration of the dimension, pattern and profile of these reaches is proposed to improve the overall channel condition, to stabilize channel banks, and to re-establish hydraulic connectivity to flood prone areas.

Enhancement: The bank sponsor proposes to enhance approximately 21,259.7 lf of streams. Enhancement activities may include, but are not limited to, natural channel design techniques, bank stabilization and bioengineering techniques, grade control and in-stream structures, supplemental plantings, and the establishment of forested riparian buffers.

Establishment: The bank sponsor proposes to establish approximately 3448.0 lf of streams in areas impacted by past/current land use activities.  Establishment activities may include, but are not limited to, natural channel design techniques, channel cross section and pattern establishment, bank stabilization and bioengineering techniques, grade control and in-stream structures, the connection of contributing streams to the main channel, and the establishment of forested riparian buffers.

Preservation: The bank sponsor proposes to preserve approximately 9980.1 lf of streams along with riparian buffers. The 2.131 acres of wetlands on-site would also be preserved as part of the overall mitigation bank.

Figure 1 of 4 shows the location of the proposed mitigation bank, Figure 2 of 4 depicts the proposed service area for the proposed mitigation bank, Figure 3 of 4 shows the existing conditions and current resources, and Figure 4 of 4 depicts the proposed resource development for the proposed mitigation bank.  

In accordance with the Rule, performance standards and success criteria, established by the application of conditional assessments and/or suitable metrics, would be outlined and implemented as requirements.  The full Mitigation Plan is available for review upon request.

WATER QUALITY CERTIFICATION: A general Section 401 Water Quality Certification from the West Virginia Department of Environmental Protection Agency has been issued for actions qualifying under Nationwide Permit No. 27. If determined an individual permit would be required, then an individual Section 401 Water Quality Certification from the West Virginia Department of Environmental Protection Agency would be required.

HISTORIC AND CULTURAL RESOURCES: This undertaking must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The NRHP has been consulted and it has been determined there are no historic properties currently listed on the National Register within the area proposed to be affected by the project.

The State Historic Preservation Office at the West Virginia Division of Culture and History (WVDCH) was consulted regarded the proposed project. In a letter dated March 4, 2020, the WVDCH determined the project would have no effect on archaeological historic properties, and there are no architectural properties eligible for or included on the NRHP within or adjacent to the proposed project area. The Corps has determined the proposed project would have no potential to effect historic properties.  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 potential effects on historic properties. Comments concerning archaeological sensitivity of the project area should be based on collected data.

 

THREATENED & ENDANGERED SPECIES: This Public Notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended).  Three (3) federally-listed endangered species, the Indiana bat (Myotis sodalis), snuffbox mussel (Epioblasma triquetra) and the clubshell mussel (Pleurobema clava), and one (1) federally threatened species, the northern long-eared bat (Myotis septentrionalis), may occur within the proposed project area.

 

The project would involve stream restoration and preservation work performed within forested areas as well as the restoration and protection of stream-side riparian corridors.  The proposed project area is not located within a USFWS designated critical habitat.  No known Indiana bat or northern long-eared bat hibernacula or roosts exist within the work areas.  The project would involve the removal of trees to facilitate access and restoration activities; however, the site, including areas that are currently non-forested, would be replanted with native tree species. The proposed activities would be expected to result in stream and riparian corridor improvements. 

Based on the nature of the project, we have determined the proposed project may affect, but would not likely adversely affect either the Indiana bat or the northern long-eared bat. 

 

The project involves streams that are not suitable to support freshwater mussels or their habitat. However, the site drains to Middle Island Creek which is known to provide suitable habitat. The project would be conducted during low flows to the maximum extent practicable while utilizing best management practices to reduce and limit soil erosion or increases to suspended solids downstream. The project goal is to construct and improve channels to improve the existing incised stream and eroding banks that are contributing to erosion and sedimentation. The site would be replanted and vegetated to further reduce erosion and sediment input with the proposed activities of the overall project expected to result in stream and riparian improvements. Based on the nature of the proposed work, we have determined the proposed project may affect, but would not likely adversely affect either the clubshell mussel or the snuffbox mussel.

 

This Public Notice serves as a request for concurrence from the USFWS regarding the aforementioned effect determinations and/or 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: 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.  In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, USEPA, under the authority of Section 404(b) of the Clean Water Act (40 CFR part 230).  Interested parties are invited to state any objections they may have to the proposed work.  Any person who has an interest that may be adversely affected by the approval of this mitigation bank may request a public hearing.  The request must be submitted in writing to the District Engineer on or before the expiration date of this notice and must clearly set forth the interest which may be adversely affected and the manner in which the interest may be adversely affected by the activity.  Authorization of the proposed mitigation bank is being evaluated under the Nationwide Permit No. 27 described in the January 6, 2017 Federal Register, Issuance and Reissuance of Nationwide Permits (82 FR 1860).

 

If determined necessary, an individual DA permit pursuant to the procedures outlined at 33 CFR 325.2 would be required. For individual DA permits, the decision whether to approve this mitigation bank will be based on an evaluation of the probable impact, 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 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.  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.

 

 

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 this proposed mitigation bank.  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 comments received will be considered by the Corps to determine whether to approve, modify, condition or deny 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.

 

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 that date, it will be considered that there are no objections. 

 

COMMENT SUBMISSION:  Comments and requests for additional information should be submitted electronically to Mr. Wes Barnett by email to wes.barnett@usace.army.mil.

 

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

 

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2019-00830-OHR

502 Eighth Street

Huntington, West Virginia 25701-2070.

 

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 the comments received 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. Wes Barnett at the above address, by telephone at (304) 399-6905, or by email at wes.barnett@usace.army.mil.