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LRH 2020-00573-HOC

Published Aug. 11, 2022
Expiration date: 9/11/2022

TO WHOM IT MAY CONCERN: The district engineer has received a mitigation plan proposing the establishment of 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] Parts 332).  The purpose of this Public Notice is to inform you of the proposed ecological restoration work 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 United States (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:    The Nature Conservancy

6375 Riverside Drive, Suite 100

Dublin, Ohio 43017

LOCATION: The sponsor proposes the establishment and management of the Gifford State Forest ILF Mitigation Project, involving a 193.2-acre site along State Route 377, in Bern Township, Athens County, Ohio (39.442091 ° N, -81.903813 ° W).  See Sheet 1.

DESCRIPTION OF PROPOSED ACTIVITY: The sponsor has submitted a compensatory mitigation plan to the Corps, Huntington District detailing the proposed development of the Gifford State Park ILF Site. A complete copy of the Gifford State Park In-Lieu Fee Mitigation Plan; July 2022 is available for review with the submission of a supporting Freedom of Information Act (FOIA) request.

The sponsor proposes to generate 18.14 wetland mitigation credits through the re-establishment and rehabilitation of wetlands and their associated buffers along with 26,319 stream mitigation credits through the restoration of stream channels and their associated riparian buffers.  The credits produced by the project may be utilized to fulfill compensatory mitigation obligations transferred to the sponsor through the sale of advance mitigation credits and used 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 (CWA) and Section 10 of the Rivers and Harbors Act (RHA) of 1899.

The sponsor’s existing ILF Program Instrument, identifies a primary service area of the Hocking subbasin (Hydrologic Unit Code [HUC] 05030204) and a secondary service of the Upper Ohio-Little Kanawha basin (HUC 050302) for the fulfillment of advance mitigation credits.  Should any excess, or fully released credits, be produced by the site, the sponsor proposes a service area of the Hocking subbasin (05030204) in accordance with the existing ILF Program Instrument.  In addition, excess or fully released credits may be considered for compensatory mitigation of impacts outside the defined service areas by the Corps and the Ohio EPA on a case-by-case basis.

The sponsor has identified that the primary objective is the restoration of wetlands, streams and associated buffers to fulfill advance mitigation credits used to offset unavoidable adverse impacts to aquatic resources in conjunction with permit activities authorized by the Corps and/or the Ohio EPA.

As proposed, the sponsor states the ILF mitigation site would involve the restoration of 34.99 acres of wetlands and their associated upland buffers along with 25,928 linear feet of stream and associated riparian buffers.  The sponsor indicates the 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 that are generated by the proposed mitigation activities.  A financial assurance would be provided totaling the estimated construction, maintenance and monitoring costs for a period of 10 years.  The sponsor will secure the site by recording a permanent environmental covenant or conservation easement to protect the ILF mitigation site.

The site consists of parcels owned by the ODNR as well as adjacent privately owned parcels. The sponsor has indicated the project is being developed in partnership with the ODNR and that the project area would be transferred to the ODNR as the long-term steward of the ILF project area. Long-term management of the site would be completed in accordance with a long-term management agreement and funded by an endowment provided by the sponsor.

The intent is for the sponsor to transfer the property to a long-term steward at the completion of active monitoring and management in conjunction with the site release and/or closure.  A draft long-term management plan will be developed prior to any potential approval and finalized based upon the findings and concerns identified during monitoring period.  The final long-term management plan shall be consistent with the site protection and overall mitigation goals.  The sponsor will establish an endowment to fund long-term management and it would be transferred to the steward upon approval from the Corps.  Until such time that a long-term steward and management plan are finalized and approved by the Corps, the sponsor shall retain all long-term management obligations. Location and details of the proposed site are shown on the attached documents (Sheets 1-4).

DEPARTMENT OF THE ARMY (DA) PERMITS:  The establishment and management of the proposed ILF mitigation site would be considered in conjunction with the sponsor’s existing ILF program instrument.  Additionally, a DA permit would be required under Section 404 of the CWA 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 December 27, 2021, Federal Register, Reissuance and Modification of Nationwide Permits (86 FR 73522).

WATER QUALITY CERTIFICATION:  A CWA 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 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 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).  Two (2) federally listed threatened species (northern long-eared bat [Myotis septentrionalis] and American burying beetle [Nicrophorus americanus]) 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 habitat improvements.  Based on the nature of the proposed project, this office has initially determined the proposed project may affect but would not likely adversely affect either the Indiana bat, the northern long-eared bat, and American burying beetle.  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 project 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.  As indicated above, the discharge of dredged or fill material associated with 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 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 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 (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. Comments should include the identifying public notice number (LRH-2020-00573-HOC) and project name (Gifford State Forest ILF Mitigation Project) 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


Public Notice No. LRH-2020-00573-HOC – Gifford State Forest ILF Mitigation Project

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 FOIA.  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.