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LRH 2019-502-MUS

CELRH-RD-E
Published July 14, 2021
Expiration date: 8/14/2021

TO WHOM IT MAY CONCERN: The district engineer has received a prospectus to establish an in-lieu fee mitigation site 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 Code of Federal Regulations [CFR] § 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 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 (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:    Stream+Wetlands Foundation

123 South Broad Street, Suite 238

P.O. Box 369

Lancaster, Ohio 43130

LOCATION: The sponsor proposes the establishment and management of the Bloody Run Swamp ILF Mitigation Site, involving a 74.8-acre tract located on the east side of Swamp Road, south of U.S. 40 (National Rd.), and north of  Interstate 70, in Union Township, Linking County, Ohio (latitude 39.949575 °, longitude -82.565915 °). 

DESCRIPTION OF PROPOSED ACTIVITY: The sponsor has submitted a mitigation plan to the Corps, Huntington District detailing the proposed establishment of the Bloody Run Swamp ILF Mitigation Site. A complete copy of the Bloody Run Swamp Wetland and Stream In-Lieu Fee Mitigation Site; June 2021 is available for review upon request.

The sponsor proposes to generate approximately 4,270 stream credits and 57.5 wetland credits through the re-establishment, rehabilitation, and restoration of wetlands, streams and their associated buffers. The credits produced by the project may be utilized to fulfill as compensatory mitigation obligations transferred to the sponsor through the sale of advance mitigation credits to offset 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.

As defined by program instrument, the ILF mitigation site will have a geographic service area involving a primary service area of the Tuscarawas subbasin (HUC 05040001) and secondary service area of the Muskingum basin (HUC 050400) and its associated subbasins (Mohican (05040002), Walhonding (05040003), Muskingum (05040004), Wills (05040005), and Licking (05040006)) for the fulfillment of advance mitigation withdraws or debits.

Once all advance credits obligations are fulfilled, for excess credits (or released credits), the sponsor proposes a service area as defined by the approved program instrument. In addition, released credits may be used for non-jurisdictional, state isolated wetland impacts to offset impacts to isolated Category 1 wetlands of any size and isolated Category 2 wetlands of 0.5 acre or less, for the entire Ohio portion of the Huntington Corps District (Ohio Revised Code [ORC] §6111.022) as well as for impacts to isolated Category 2 wetlands greater than 0.5 acre, isolated Category 3 wetlands of any size, and ephemeral streams, within the associated service area as defined by approved program instrument.  

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 Corps and/or Ohio EPA project manager.

The sponsor has identified that the primary objective is to provide compensatory mitigation to offset unavoidable adverse impacts separately authorized by Clean Water Act Sections 404 and 401 permits, Section 10 of the Rivers and Harbors Act permits, and/or isolated wetlands and ephemeral streams authorized by the ORC §6111.

As proposed, the sponsor states the ILF mitigation site would involve the restoration of 2,817 linear feet of stream, the rehabilitation of 0.4 acre of wetlands, and the re-establishment of 64.3 acres. The sponsor indicates the ILF mitigation site would be constructed, maintained, and monitored based on specific performance standards. The mitigation plan includes a proposed credit release schedule along with success criteria for the release of credits yielded by the proposed mitigation activities. A financial assurance would be provided in the form of a construction performance bond in the amount of the projected construction costs along with estimated the maintenance and monitoring costs for Year 1. The sponsor will secure annual maintenance bonds during the remaining monitoring years to cover the remaining maintenance and monitoring.

The sponsor has purchased and owns the ILF mitigation site in fee simple. The sponsor proposes to provide long-term protection of the ILF mitigation site through the recordation of a deed of conservation easement and right of access, or another form of suitable site protection as approved by the Corps. The easement shall be perpetual and held by an approved third party that meets the requirements of ORC 5301.69 and approved by the Corps and the Ohio EPA. The sponsor shall serve as the easement holder until such time that an acceptable third party is identified. Potential long-term stewards have been identified but no agreements have been executed at this time. The sponsor has provided a preliminary long-term management plan indicating that a detailed long-term management plan that is consistent with the conservation easement and overall mitigation goals will be developed for Corps’ review and approval prior to implementation. A long-term management fund will be established and transferred to the approved steward endowment would be established by the sponsor and transferred to the approved long-term steward upon the release of monitoring.

Location and details of the proposed ILF mitigation site are shown on the attached documents (Sheets 1 through 3).

DEPARTMENT OF THE ARMY PERMITS:  The establishment and management of the proposed ILF mitigation site would be conducted under the sponsor’s 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 known 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 AND ENDANGERED SPECIES: This Public Notice will serve as initial 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 one (1) federally-listed endangered species [Indiana bat (Myotis sodalis)] 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 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 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 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 Department of the Army permit pursuant to the procedures outlined at 33 CFR 325.2 would be required. For individual Department of the Army 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 (1) of this Public Notice.  If no comments are received by that date, it will be considered that there are no objections.  Comments should be submitted electronically to Mr. Wes Barnett by email at wes.barnett@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-E

Public Notice No. LRH-2019-00502– UT to South Fork Licking River

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 aquatic 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.