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LRH 2020-903-LMR

Published Dec. 14, 2020
Expiration date: 1/12/2021

TO WHOM IT MAY CONCERN:  The following application has been submitted to the United States Army Corps of Engineers’ (Corps) Huntington District for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act. 


APPLICANT:           Mr. Michael McNamara

      Clermont County CIC, Inc

                                    101 E. Main Street

                                    Batavia, Ohio 45103


LOCATION:  As depicted on the attached Sheet 1 of 2, the proposed project would be located within the watershed of the Little Miami River (Latitude 39.059681, Longitude -84.090001) south of State Route 32, east of Half-Acre Road, and north of the Norfolk and Western Railway in Williamsburg Township, Clermont County, Ohio.  The waters on-site flow to Kain Run, an indirect tributary to the Little Miami River, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge dredged and/or fill material into 1.56 acres of one (1) forested wetland in conjunction with the proposed South Afton Industrial Park Rail Spur Project (See Table 1 and Sheet 2 of 2).  The rail spur would be constructed to provide railway access to the Purina PetCare's new facility on the existing South Afton Industrial Park industrial and manufacturing center via the existing Norfolk Southern line.  The rail spur would be approximately 1,250 linear feet in length and 80 linear feet in width.

ALTERNATIVES ANALYSIS:  As a result of the proposal, fill material would be discharged into 1.56 acres of one (1) forested wetland as described above and in the attached Table 1.  The project does not require access or proximity to or siting within special aquatic sites 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 special aquatic sites 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.  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.  A total of 37.1 acres of one (1) forested wetland, 500 linear feet of one (1) perennial stream, and 600 linear feet of two (2) ephemeral streams are located within the proposed project area.  The applicant has proposed to avoid 35.54 acres of one (1) forested wetland, 500 linear feet of one (1) perennial stream, and 600 linear feet of two (2) ephemeral streams.  The applicant has avoided and minimized impacts to waters of the United States to the maximum extent practicable.  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.  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 (CMP):  To compensate for the loss of waters of the United States associated with the proposed project, the applicant proposes to purchase 3.9 acres of forested wetland mitigation credits from a federally approved mitigation bank or in-lieu fee program. The applicant’s CMP is currently under review.  After review of all the submitted information, the Corps will make a determination of the appropriate compensatory mitigation in the event a decision is made to issue a DA authorization.

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 Water Quality Certification (WQC) from the Ohio Environmental Protection Agency assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued for this project until the Section 401 WQC has been issued or waived and the 401(a)(2) process, if required, as described in the “Clean Water Act Section 401 Certification Rule” (Rule, 85 Federal Register 42,210 [July 13, 2020]) has been completed.   

HISTORIC AND CULTURAL RESOURCES:  The Corps is mandated by the National Historic Preservation Act (NHPA) to ensure no federal undertaking, including a Corps permit action, which may affect historic resources, is commenced before the impacts of such action are considered and the Advisory Council on Historic Preservation and the State Historic Preservation Office (SHPO) are provided an opportunity to comment as required by the NHPA, 36 CFR 800, and 33 CFR 325, Appendix C.  A Phase I Cultural Resource Management Survey for the South Afton Commerce Park Rail Spur Located in Williamsburg Township, Clermont County, Ohio dated November 24, 2020 was completed by EMH&T, Inc. on behalf of the applicant.  The Phase I survey failed to identify resources within or immediately adjacent to the permit area that have been listed or that have been determined eligible for inclusion on the National Register of Historic Places.  Therefore, the Corps has determined no historic properties would be affected by the proposed undertaking.  A copy of this public notice will be furnished to the Ohio SHPO for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.  No DA permit will be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled. 

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 fanshell mussel (Cyprogenia stegaria), the endangered Rayed Bean mussel (Villosa fabalis), the endangered pink mucket pearly mussel (Lampsilis abrupta), the endangered sheepnose mussel (Plethobasus cyphyus), the endangered snuffbox mussel (Epioblasma triquetra), and the endangered running buffalo clover (Trifolium stoloniferum).  The proposed project area is comprised of agricultural field, 37.1 acres of one (1) forested wetland, 500 linear feet of one (1) perennial stream, and 600 linear feet of two (2) ephemeral streams.  The proposed project area could provide potential habitat for the Indiana bat and the northern long-eared bat.  The applicant has agreed to conduct tree clearing operations associated with the proposed project 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 the Indiana bat or the northern long-eared bat.  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 fanshell mussel, the rayed bean mussel, the pink mucket pearly mussel, the sheepnose mussel, the snuffbox mussel, and the running buffalo clover.  The Corps has determined the proposed project would have no effect on the fanshell mussel, the rayed bean mussel, the pink mucket pearly mussel, the sheepnose mussel, the snuffbox mussel, and the running buffalo clover.  This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determinations 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).  No DA permit will be issued until the Corps has verified that all obligations under Section 7 of the Endangered Species Act have been fulfilled.

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:  Comments should be submitted electronically to Mr. Zack Abbott by email at 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, Huntington District

ATTN:  CELRH-RD-N Public Notice:  LRH-2020-903-LMR

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 names, addresses, and comments submitted 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. Zack Abbott of the North Branch, at 304-399-5336, by mail at the above address, or by email at

Table 1.  Proposed discharge of dredged and/or fill material into Waters of the United States associated with the South Afton Industrial Park Rail Spur Project, Williamsburg, Clermont County, Ohio (Latitude 39.059681, Longitude -84.090001) – LRH-2020-903-LMR

Aquatic Resource

Latitude & Longitude

(°N)            (°W)

Flow Regime or Cowardin Class

Estimated amount of aquatic resource in review area

Linear Feet (lf) and/or Acres (ac) of Fill

Other Pertinent Information

Rail Spur Construction




Forested Wetland

37.1 acres

1.56 acres

Rail Spur Construction

Total Permanent Wetland Impacts

1.56 ac