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LRH 2021-428-OHR

Published June 21, 2021
Expiration date: 7/21/2021

TO WHOM IT MAY CONCERN: The district engineer has received a prospectus to establish a mitigation bank to provide compensatory mitigation 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.

INTERAGENCY REVIEW TEAM: As indicated in the 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 (ILF) Programs. The Corps, Huntington District (Regulatory Division) is the lead district for the State of Ohio and chairs the Ohio IRT on all statewide or multiple District proposals. The Ohio IRT is presently comprised of the Corps (Buffalo, Huntington, and Pittsburgh Districts), the U.S. Environmental Protection Agency (USEPA), the U.S. Fish and Wildlife Service (USFWS), the U.S. Department of Agriculture-Natural Resources Conservation Service, the Ohio Department of Natural Resources, and the Ohio Environmental Protection Agency (Ohio EPA).

SPONSOR:    The Nature Conservancy

Ohio Mitigation In-Lieu Fee Program

6375 Riverside Drive, Suite 100

Dublin, Ohio 43017


LOCATION: The sponsor proposes the establishment and management of the Baker Swamp ILF Mitigation Site, involving a 37.7-acre tract east of Scaggs Road within Westfield Township, Jackson County, Ohio (latitude 38.953217 °, longitude -82.614574 °). 

DESCRIPTION OF PROPOSED ACTIVITY: The sponsor has submitted a mitigation plan to the Corps, Huntington District detailing the proposed establishment of the Baker Swamp ILF Mitigation Site. A complete copy of the Baker Swamp In-Lieu Fee Mitigation Plan; Racoon-Symmes Watershed (HUC 05090101) Jackson County, Ohio; March 2021 is available for review upon request.

The sponsor proposes to generate approximately 2,000 stream credits and 5.4 wetland credits through the restoration and re-establishment of streams, wetlands, and their associated buffers. The credits produced by the project may be utilized to fulfill as compensatory mitigation obligations assumed by the sponsor through the sale of advance mitigation credits for the offset of unavoidable impacts (including the discharge of dredged and/or fill material) to aquatic resources resulting from activities authorized under Sections 401 and 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 within the associated service area.

The program instrument indicates that ILF mitigation sites will have a service area that corresponds to the Racoon-Symmes (HUC 05090101) and Little Scioto-Tygarts (05090103) subbasins but may also fulfill advance credits within the associated HUC 6 basin as well.  Once all advance credits obligations are fulfilled, the sponsor proposes a service area for released credits represented by the HUC 6.  Use of the site to offset impacts outside the identified service area may be approved on a case-by-case basis as determined by the USACE and/or Ohio EPA project manager.


The sponsor states that the primary objective of the Baker Swamp In-Lieu Fee Mitigation Project is the restoration of wetlands, wetland buffers, streams, and riparian buffers. Our goal is to institute an ecologically sound, well-developed and feasible restoration plan. The plan will generate in-kind mitigation credits to replace advanced mitigation credits that have been sold in the Raccoon – Symmes Creek (HUC 05090101) and Little Scioto-Tygarts Watersheds (HUCs 05090101 and 05090103, respectively), as compensation for activities authorized by the United States Army Corps of Engineers (USACE) and the Ohio Environmental Protection Agency (OEPA) through the issuance of permits.

As proposed, the ILF mitigation site would involve the enhancement of approximately 2,000 linear feet of stream and re-establishment of wetlands beyond the existing 18.23 acres of wetlands. The sponsor indicates the ILF mitigation site would be constructed, maintained, and monitored based on consideration of specific performance standards. In addition, the mitigation plan includes a proposed credit release schedule along with success criteria for the release of all credits produced by the proposed mitigation activities. A financial assurance would be provided in the form of a construction performance bond initially and then transitioned to an escrowed project contingency fund equal to 5% of the construction costs and further supplemented by a program contingency fund structured as 5% of all credit sales.

The sponsor proposes to provide long-term protection of the ILF mitigation site though an environmental covenant and then relinquish to the Ohio Department of Natural Resources as the permanent land holder.  The sponsor has provided a preliminary long-term management plan with minimum components and indicates that an expanded long-term management plan and steward will be identified within subsequent submittals or at a later date.  A non-wasting endowment would be established by the sponsor and transferred to a long-term steward once identified and approved by this office.

 Location and details of the proposed ILF mitigation site are shown on the attached documents (Sheets 1 through 5).

DEPARTMENT OF THE ARMY PERMITS:  The establishment and management of the proposed ILF mitigation site would be conducted under the sponsors existing program instrument.  Additionally, a Department of the Army permit would be required under Section 404 of the Clean Water Act for the project activities proposed within the mitigation work plan. The proposed activities would be evaluated under the Nationwide Permit No. 27 described in the January 6, 2017 Federal Register, Issuance and Reissuance of Nationwide Permits (82 FR 1860).

WATER QUALITY CERTIFICATION:  A Section 401 Water Quality Certification may be required from the Ohio EPA.

HISTORIC AND CULTURAL RESOURCES:  This undertaking must be reviewed to determine any potential effect to properties that may be eligible for or listed on 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 NRHP within the area to be affected by the proposed ILF mitigation project.  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.  If you wish to provide comments or objections regarding the effect of the proposed ILF mitigation project on historic properties, please provide this information to our office prior to the close of the comment period.

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).  One (1) federally-listed threatened species [northern long-eared bat (Myotis septentrionalis)] and two (2) federally-listed endangered species [Indiana bat (Myotis sodalist) and the Running Buffalo Clover (Trifolium stoloniferum)] have the potential to occur within the vicinity of the project area.

The proposed activities would be expected to result in both stream and wetland habitat improvements. Based on the nature of the proposed project, this office has determined the proposed project may affect but would not likely adversely affect Indiana bat or 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 areas which would be affected by the activities, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

PUBLIC INTEREST REVIEW AND COMMENT:  This proposal 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 activities 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.  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 proposed ILF mitigation site 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 activities. A Department of the Army (DA) permit may be required under Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act for activities in conjunction with the establishment of this ILF mitigation site. If required, the proposal would be evaluated for compliance with the terms and conditions of Nationwide Permit No. 27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities or, 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 the ILF mitigation site will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activities 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 proposals must be balanced against their reasonably foreseeable detriments.  All factors that may be relevant to the proposals 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 the proposed ILF mitigation site. 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 these proposals.  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 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:

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2021-00428-OHR – UT to Black Fork

502 Eighth Street

Huntington, West Virginia 25701-2070

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