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LRH 2021-267-SCR

CELRH-RD-N
Published Sept. 16, 2021
Expiration date: 10/16/2021

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. 

 

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 3, the proposed project would be located within the watershed of the Scioto River (Latitude 40.0763, Longitude -82.7626) south of E. Dublin-Granville Road and west of Beech Road SW in the City of New Albany, Franklin and Licking Counties, Ohio County, Ohio.  The waters on-site flow to an unnamed tributary to Blacklick Creek and an indirect tributary to the Scioto River, a navigable water of the United States.

PROJECT HISTORY:  On May 7, 2021, the Corps authorized the applicant to discharge of 0.30 acre of one (1) emergent wetland and 222 linear feet (0.061 acre) of one (1) perennial stream for the first phase of the development (see attached Table 1) under a Nationwide Permit 39 verification.  All applicable compensatory mitigation for those impacts has been completed.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge dredged and/or fill material into approximately 1.38 acres of three (3) wetlands, 122 linear feet (0.033 acre) of one (1) perennial stream, 85 linear feet (0.007 acre) of two (2) intermittent streams, and 2.23 acres of open water ponds in conjunction with the proposed commercial development, known as Project Charger (see attached Table 2).  The overall project would include the development of an approximately 1.1 million-square foot campus on an approximate 177 acres to expand the commercial development.  The expansion would include the construction of nine (9) buildings along with associated parking areas, paved storage areas, site entrances and drives, stormwater facilities, and related infrastructure.  See attached Sheet 2 of 3 for a copy of the development plan.  Cumulatively, the overall project would impact 1.68 acres of four (4) wetlands, 344 linear feet (0.094 acre) of one (1) perennial stream, 85 linear feet (0.007 acre) of two (2) intermittent streams, and 2.23 acres of open water ponds

ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into waters of the United States as described above and in the attached Table 2.  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 4,033 linear feet (1.11 acres) of one (1) perennial stream, 275 linear feet (0.02 acre) of two (2) intermittent streams, 4.50 acres of 10 wetlands, and 2.23 acres of two (2) open water features are located within the proposed project area.  The applicant has proposed to impact 122 linear feet (0.033 acre) of one (1) perennial stream, 85 linear feet (0.007 acre) of two (2) intermittent streams, 1.38 acres of three (3) forested wetlands, and 2.23 acres of two (2) open water features in conjunction with the proposed project.  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, 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.  After construction, any temporary fill material would be removed in its entirety and the affected areas returned to pre-construction elevations and revegetated, as appropriate. 

COMPENSATORY MITIGATION PLAN (CMP):  To compensate for the loss of waters of the United States associated with the proposed project, the applicant proposes to preserve 2.5 acres of Category 3 forested wetlands, to enhance 3.24 acres of existing Category 2 forested wetlands, and to restore approximately 1.6 acres of forested Category 2 wetland within a 43-acre forested preserve directly adjacent to the project site.  Approximately 34.6 acres of forested upland buffer would be preserved on the site surrounding the wetlands.  Additionally, the applicant plans to utilize 0.58 acre of forested wetland credits from the Rocky Fork Pooled Mitigation Site.  Compensatory mitigation for the stream impacts would be accomplished through the use of 423 credits from the Approved Rhodes Ditch Phase II Mitigation site.  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 on this project until the Section 401 WQC has been issued or waived.

HISTORIC AND CULTURAL RESOURCES:  The Corps is required 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.  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.  The majority of the project area has been used as agricultural land.  The project area is surrounded by active agriculture fields, single-family residential developments, industrial developments, and roadways.  A Phase I Cultural Resources Survey for the approximate 177ac Project Charger in the City of New Albany, Franklin/Licking Counties, Ohio was completed and coordinated with the Ohio History Connection, the Ohio State Historic Preservation Office (SHPO).  Through a literature review, visual inspection, surface collection and shovel test unit excavations a total of five (5) archaeological sites were located within the project area ([33-LI]-2562, 2720, 2267, 2268, and 2556).  Two (2) resources 50 years of age or older were identified within the area of potential effects.  It has been previously determined that these resources are not eligible for listing in the NRHP.  The Corps has determined no historic properties eligible or potentially eligible for inclusion on the NRHP would be affected by the proposed undertaking.  A copy of this Public Notice will be furnished to 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 NHPA 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) and the threatened northern long-eared bat (Myotis septentrionalis).  The proposed project area is comprised of active agriculture fields, portions of forested habitat, 4,033 linear feet (1.11 acres) of one (1) perennial stream, 275 linear feet (0.02 acre) of two (2) intermittent streams, 4.50 acres of 10 wetlands, and 2.23 acres of two (2) open water features.  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.  This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determination 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:  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. Cecil Cox by email at cecil.m.cox@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, Huntington District

ATTN:  CELRH-RD-N Public Notice:  LRH-2021-267-SCR

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. Cecil Cox of the North Branch, at 304-399-5274, by mail at the above address, or by email at cecil.m.cox@usace.army.mil.

Table 1. Prior Discharge of Dredged and/or Fill Material into Waters of the United States Associated with Project Charger Nationwide Permit Verification

Aquatic Resource ID

Aquatic Resource Type

Wetland Impact

(Acres)

Stream Impact

(Linear Feet/Acres)

Stream 1

Perennial Stream

 

222/0.061

Wetland 32

Emergent Wetland

0.3

 

Total

 

0.3

222/0.061

 

 

Table 2.  Proposed Discharge of Dredged and/or Fill Material into Waters of the United States Associated with the Project Charger Commercial Development.

Aquatic Resource ID

Aquatic Resource Type

Wetland Impact (Acres)

Open Water (Acres)

Stream Impact

(Linear Feet/Acres)

Stream 1

Perennial Stream

 

 

122/0.033

Stream 2

Intermittent Stream

 

 

48/0.004

Stream 4

Intermittent Stream

 

 

37/0.003

Wetland 1

Forested Wetland

0.71

 

 

Wetland 42

Forested Wetland

0.50

 

 

Wetland 44

Forested Wetland

0.17

 

 

Pond 3

Open Water Pond

 

0.99

 

Pond 6

Open Water Pond

 

1.24

 

Total

 

1.38

2.23

207/0.04