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LRH 2020-135-SCR

Published May 29, 2020
Expiration date: 6/27/2020

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 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 (OEPA) to act on the Section 401 Water Quality Certification for the following application.

 

APPLICANT:           Mr. Brent Bradbury

                                    MBJ Holdings, LLC

                                    8000 Walton Parkway, Suite 120

                                    New Albany, Ohio 43054

             

LOCATION:  As depicted on the attached Sheet 1 of 4, the proposed project would be located west of Beech Road Southwest and south of Ganton Parkway in the City of New Albany, Licking County, Ohio (40.064104 latitude, -82.758520 longitude). The waters on site flow into an unnamed tributary to Blacklick Creek, which is an indirect tributary of the Scioto River, a traditional navigable water of the United States.  

PROJECT HISTORY: The applicant was previously authorized, under a Nationwide Permit No. 39 verification dated March 19, 2020, to discharge dredged and/or fill material into 272 linear feet (0.05 acre) of one (1) intermittent stream in conjunction with the construction of an industrial development referred to as Beech Road SW Site C. This development consisted of one (1) data center building and its associated attendant features. 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge dredged and/or fill material into an additional 1,739 linear feet (0.30 acre) of two (2) streams in order to expand the development by constructing a second data center building and its associated infrastructure (Sheet 2 of 4). As proposed, the overall project would cumulatively result in the discharge of dredged and/or fill material into 2,011 linear feet (0.35 acre) of intermittent and ephemeral stream channels.

ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into 1,739 linear feet (0.30 acre) of intermittent and ephemeral stream channels. No wetlands or other special aquatic sites would be affected by 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 or by submitting a request in accordance with the Freedom of Information Act.  No permit will be issued until our review of the alternative 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 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 4,318 linear feet of five (5) streams and 0.38 acre of one (1) wetland are located within the site.   According to the information provided, a total of 0.38 acre of forested wetland (100% of wetland) and 2,190 linear feet of streams (53% of streams) on-site would be avoided.  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. The applicant has proposed to reconfigure the original stormwater basin plan in order reduce impacts to the streams on-site.  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 loss of waters of the United States associated with the proposed project, the applicant has proposed to utilize 2,376  linear feet of previously approved mitigation on-site (Rhodes Ditch Restoration) (Sheet 3 of 4). In addition, the applicant has proposed to restore an additional 515 linear feet of stream at the Avis Road Pooled Mitigation Site, which is located approximately 0.7 mile southwest of the impact site (Sheet 4 of 4). 

The Avis Road Pooled Mitigation Site, as proposed, would provide an excess of mitigation credit. In order to complete the restoration and enhancement activities at the Avis Road Pooled Mitigation Site, the applicant has proposed to discharge dredged and/or fill material into approximately 1,300 linear feet (0.20 acre) of intermittent stream. The fill activities would include channel realignment at the restored stream tie in point, stabilization, and the installation of riffles.  

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 OEPA. 

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 that would be indirectly or directly affected by the proposed work.  A Phase I Cultural Resources Survey for the approximately 56-acre Beech Road Site C in New Albany, Licking County, Ohio (report) was completed on the project site prior to the first stage of the development. Twelve (12) previously unrecorded archaeological resources were identified within the project area and were determined to be ineligible for inclusion onto the NRHP. By letter dated March 13, 2020, the Ohio State Historic Preservation Office (Ohio SHPO) concurred with this determination and stated that the project would not affect historic properties (2020-LIC-47633-1). The proposed expansion would not extend outside of the previously surveyed area.

A Phase I Cultural Resources Survey for the 106 ac. Avis Road Pooled Mitigation Site in Plain Township, Franklin County, Ohio (report) was completed for the off-site mitigation area as part of a previously approved wetland mitigation project. Three (3) previously unrecorded archaeological sites were identified within the mitigation area and were determined to be ineligible for inclusion onto the NRHP. In addition, five (5) properties 50 years of age or older were identified within the viewshed of the mitigation area and were determined to be ineligible for inclusion onto the NRHP.  By letter dated November 21, 2019, the Ohio SHPO concurred with this determination and stated that the project would not affect historic properties (2019-FRA-46717). The proposed expansion would not extend outside of the previously surveyed areas.

Based on this information, the Corps has determined that no historic properties listed on, or eligible for listing on the NRHP would be affected by the proposed development activities and mitigation activities. A copy of this Public Notice will be furnished to Ohio SHPO 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), and the threatened eastern massasauga (Sistrurus catenatus). 

Suitable habitat for the eastern massasauga may be present anywhere preferred habitat is found in Licking County, Ohio.  Habitat includes wetlands, wet prairie, wet meadow, and nearby woodland or shrub edge.  The proposed project area does not include suitable habitat for the eastern massasauga.  Additionally, the proposed project area is not located within the Ohio Division of Wildlife’s hexagon shapefile for the eastern massasauga.  Therefore, the Corps has determined the proposed project would have no effect on the eastern massasauga.

Suitable habitat for the Indiana bat and the northern long-eared bat may be present anywhere preferred habitat is found in Ohio. The Corps is not aware of any caves or abandoned mines in the proposed project area.  The Corps is also not aware of any abandoned railroad tunnels in the project area that could provide winter habitat for the Indiana bat or the northern long-eared bat. Approximately five (5) acres of forested habitat were cleared on site to accommodate the first phase of construction (Tails: 03E15000-2019-TA-1820).  The applicant has indicated that an additional five (5) acres of forest would need to be cleared as part of the proposed expansion. All tree clearing would occur within the recommended timeframe of October 1 and March 31 to minimize potential impacts to federally listed bat species. Based on this information, the Corps has determined that the proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.

The Avis Road Pooled Mitigation Site (Tails: 03E15000-2019-TA-1034) is located within the known of historic range of the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), the endangered Scioto madtom (Noturus trautmani), the endangered clubshell mussel (Pleurobema clava), the endangered northern riffleshell mussel (Epioblasma torulosa rangiana), the endangered rayed bean mussel (Villosa fabalis), the endangered snuffbox mussel (Epioblasma triquetra), the threatened rabbitsfoot mussel (Quadrula cylindrica cylindrical), and the endangered running buffalo clover (Trifolium stoloniferum).

Suitable habitat for the above mentioned mussel and fish species may be present anywhere preferred habitat is found in Franklin County, Ohio.  The intermittent stream located within the Avis Road Pooled Mitigation site is an unnamed tributary to Ackerburg Ditch.  This feature is not expected to support habitat for listed species. Based on this information, the Corps has determined that construction at the proposed mitigation site would have no effect on the Scioto madtom, the clubshell mussel, the northern riffleshell mussel, the rayed bean mussel, and the  snuffbox mussel. 

Suitable habitat for the running buffalo clover may be present anywhere preferred habitat is found in Franklin County, Ohio.  Habitat includes partly shaded sites in or near woodlands, hilltops, trails, old logging roads, or in old cemetery or lawn sites that may be periodically mowed. The Avis Road Pooled Mitigation Site does not include suitable habitat for the running buffalo clover.  Therefore, the Corps has determined the construction at the proposed mitigation site would have no effect on the running buffalo clover.

The Corps is not aware of any caves or abandoned mines at the Avis Road Pooled Mitigation Site.  The Corps is also not aware of any abandoned railroad tunnels at the Avis Road Pooled Mitigation Site that could provide winter habitat for the Indiana bat or the northern long-eared bat. The applicant has indicated that approximately one (1) acre of tree clearing would need to occur in order to facilitate a tie in the restored channel and install the bank stabilization materials and riffles. All tree clearing would occur within the recommended timeframe of October 1 and March 31 to minimize potential impacts to federally listed bat species. Based on this information, the Corps has determined that construction at the proposed mitigation site may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.

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 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 (preferably via email if possible) 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, either physical or electronic, 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:  Comments and requests for additional information should be submitted electronically to Katie Samples by email at Katie.E.Samples@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:

 

United States Army Corps of Engineers

ATTN:  CELRH-RD-N

Public Notice:  LRH-2020-135-SCR

502 Eighth Street

Huntington, WV 25701-2070

 

Comments 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. 

 

Table 1.  Proposed Discharges of Dredged and/or Fill material into Waters of the United States associated with the Beech Road SW Site C Project.

Aquatic Resource

Latitude & Longitude

(°N)            (°W)

On-site

Avis Road Pooled Mitigation Site

Flow Regime or Cowardin Class

Estimated amount of aquatic resource in review area

Linear Feet (lf) of Fill

Stream 10

40.063373

-82.757233

X

 

Intermittent

2,190 lf

1,797 lf

Stream 12

40.064472

-82.755029

X

 

Ephemeral

147 lf

147 lf

Stream 1

 

40.057896

 

-82.788351

 

 

X

Intermittent

2,039 lf

1,300 lf (enhancement activities)

Total for construction of Beech Road SW Site C

1,944 lf  

Total for Avis Road Pooled Mitigation Site

1,300 lf