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LRH 2021-632-SCR

Published Aug. 11, 2021
Expiration date: 9/11/2021

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).

BANK SPONSOR:               Stream+Wetlands Foundation

P.O. Box 369

123 Broad Street, Suite 238

Lancaster, Ohio 43130


LOCATION: The bank sponsor proposes the establishment and management of the Whetstone Mitigation Bank involving a 182.5-acre site located at 2234 Ford Road South, Concord and Liberty Townships, in Delaware County, Ohio (latitude 40.247281°, longitude -83.110772°). 

DESCRIPTION OF PROPOSED ACTIVITY: The Bank Sponsor has submitted a prospectus to the Corps, Huntington District detailing the proposed establishment of the Whetstone Mitigation Bank. A complete copy of the prospectus (Whetstone Highlands Wetlands Mitigation Bank; Delaware County, Ohio; July 2021) is available for review upon request.

The objective of the proposed mitigation bank is to generate compensatory mitigation credits by conducting ecological restoration work to yield both functional and areal increases of aquatic resources within the bank site. The mitigation bank would serve as a third-party compensatory mitigation option for permittees; approved credits may be used to offset unavoidable losses to wetlands authorized under Sections 404 and/or 401 of the Clean Water Act.

The bank sponsor proposes to generate approximately 148.6 wetland credits through the re-establishment of wetlands along with their associated buffers. The credits produced by the project may be utilized to serve as compensatory mitigation for 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 bank’s service area.

The sponsor proposes a Geographic Service Area (GSA) is identified as the Upper Scioto watershed (8-digit Hydrologic Unit Code (HUC) 05060001) for permitted impacts to federally jurisdictional aquatic resources. The GSA would include a service area of the entire Ohio portion of Huntington District Corps Regulatory Boundary for impacts to isolated Category 1 wetlands of any size, isolated Category 2 wetlands of 0.5 acre or less. For impacts to isolated Category 2 wetlands greater than 0.5 acre and isolated Category 3 wetlands of any size, the serviceable area would be Upper Scioto watershed (05060001). The use of approved mitigation credits from the bank to compensate for impacts outside the defined GSA may be considered by federal or state agencies for impacts under Section 401 and 404 of the Clean Water Act on a case-by-case consistent with state and federal regulations, laws including 33 CFR §332, ORC §6111, and OAC §3745-1-54. Mitigation credits generated by the project can be considered for use by in-lieu fee program sponsors to fulfill mitigation obligations for impacts located within the Service Area, and outside of the Service Area, on a case-by-case basis as approved by the Corps and/or Ohio EPA.

As proposed, the mitigation bank would involve an estimated 172.1 acres of re-established wetlands. The sponsor states the mitigation bank would be constructed, maintained, and monitored in consideration of specific performance standards. The sponsor indicates that credits be considered for release based upon achievement of prescribed performance standards and based on the proposed credit release schedule. The sponsor states that an approved financial assurance would be secured to ensure compliance and completion of the site in the event of default. Should aspects of the site fail to achieve established performance standards of the approved mitigation bank instrument and site plan, adaptive management plan would be developed with the IRT with remedial actions implemented following approval from the Corps.

The sponsor indicates that a Deed of Conversation Easement would be recorded to ensure adequate long-term protection of the site. Prior to the conclusion of monitoring and active management by the sponsor, a qualified long-term steward may be approved to oversee and implement the approved long-term management plan. Upon the final credit release, approval of a long-term steward, finalized long-term management plan, the site, and the long-term management funds will be transferred to the steward.

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

DEPARTMENT OF THE ARMY PERMITS: The establishment and management of the proposed mitigation bank site would also require the development of a single mitigation bank 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 mitigation bank 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 mitigation bank 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 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 two (2) federally-listed endangered species (Indiana bat (Myotis sodalist) and running buffalo clover (Trifolium stoloniferum)) have the potential to occur within the proposed mitigation bank project area.

The proposed activities would be expected to result in habitat improvements. Based on the nature of the proposed project, this office anticipates the proposed project may affect but would not likely adversely affect Indiana bat, northern long-eared bat, or running buffalo clover. 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 mitigation bank project 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 mitigation bank project. 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 mitigation bank project 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 mitigation bank project. 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-2021-00632-SCR

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.