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Published Dec. 18, 2012
Expiration date: 1/19/2013

PUBLIC NOTICE: The purpose of this public notice is to inform you of a proposal for work in which you might be interested. It is also to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process.

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department of the Army Permit under the provisions of Section 10 of the Rivers and Harbors Act and Section 404 ofthe Clean Water Act. This notice serves as the Corps of Engineers' request to the Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application.


The Dayton Power and Light Company (DP&L) J.M. Stuart Station

P.O. Box 488, U.S. Route 52

Aberdeen, OH 45101

LOCATION: The proposed project is located in Elk Run and two adjacent wetlands north of the Ohio River and south ofU.S. Route 52 in Sprigg Township, Adams County, Ohio. The project is located near latitude 38.6377 and longitude -83.6483. A project location map is attached to this notice.

DESCRIPTION OF PROPOSED WORK: The applicant proposes to discharge fill material into waters of the United States in association with the expansion of an existing commercial development. The stated purpose of the project is to allow access to DP&L's property on the east side of Elk Run for the purposes of harvesting clean borrow fill (clay) within an approximate ±88-acre site. The ±88-acre site is described as a combination of four tracts, Tracts #1-4. The harvested borrow fill would be used for current and future operations at the existing fly ash landfill at DP&L's J.M. Stuart Electric Generating Station.

The proposed project area contains the aquatic resources described in Tables 1 and 2 below. Implementation of the proposal would include the construction of a 35-foot wide, single-lane roadway. The proposed roadway would include a culverted crossing within Stream 1 (Elk Run).

The applicant is considering two design options for the culverted crossing: a 120-inch reinforced concrete pipe or a 12-foot x 9-foot reinforced concrete box culvert. Implementation of either proposal would result in the discharge of 350 cubic yards of fill material into 170 linear feet of Elk Run and 0.32 acres of one adjacent wetland referred to as Wetland 1. Approximately 200 cubic yards of fill material would be placed within Wetland 2 to facilitate soil excavation and construction of the clay borrow area. Proposed stream and wetland fills are summarized in Tables 1 and 2 below.


Table 1

Proposed Stream Fill

Stream Name

Flow Regime

Length On-Site (lf)

Proposed Impact (lf)

Stream 1 (Elk Run)




Stream 2 (UnTrib Ohio River)




Total Proposed Stream Fill

170 linear feet

Table 2

Proposed Wetland Fill

Wetland ID


Size (Acres)

Impact (Acres)

Wetland 1




Wetland 2




Wetland 3




Total Proposed Wetland Fill

0.38 acres


The applicant proposes to phase clay harvesting within the project area, beginning with Tract #1. Plans of the proposal are attached to this notice. If permitted, the permit would be for a 20-year duration. The applicant has indicated construction of the Elk Run crossing would begin immediately after receipt of the required authorization.

ALTERNATIVES ANALYSIS: As a result of the proposal, fill material would be discharged into 0.38 acres of jurisdictional wetland. The project does not require access or proximity to or siting within the wetlands to fulfill its basic purpose and is considered a non-water dependent activity. The Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise. The applicant is required to provide an alternatives analysis that must overcome the presumption prior to receiving authorization for the placement of fill material. The applicant has submitted the required alternatives analysis and it is currently under review. A complete copy of the alternative analysis can be reviewed, by appointment, at the following location:

United States Army Corps of Engineers

502 Eighth Street Huntington,

West Virginia 25701

(304) 529-5610

No permit will be issued until our review of the alternative analysis clearly shows that upland alternatives are not available to achieve the applicant's purpose and need for the proposed project.

AVOIDANCE AND MINIMIZATION: In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on these sites. The applicant has indicated Stream 2 and Wetland 3 would be avoided. To allow for access to Tract 4, the applicant has indicated Wetland 3 would be spanned with a bridge structure. The remaining 0.12 acres of Wetland 1 would also be avoided.

According to the applicant, alternative roadway designs were considered. The applicant's preferred alternative consisted of the construction of a 50-foot wide, two-lane roadway, which would have resulted in the discharge of fill material into 225 linear feet of Elk Run and 0.44 acres of Wetland 1. In order to minimize the impacts to this stream and wetland, the applicant reduced the roadway width to a single-lane road. This resulted in avoidance of 75 additional linear feet of Elk Run and 0.12 acres of Wetland 1. The applicant has indicated aquatic resources have been avoided and impacts have been minimized to the maximum extent practicable and has indicated that the proposed impacts are unavoidable. Given the proposed project is the expansion of an existing facility, off-site alternatives were not considered.

COMPENSATORY MITIGATION PLAN: The applicant has submitted a conceptual mitigation plan to compensate for the discharge of fill material into 170 linear feet of stream and 0.38 acres of wetland. As stream mitigation, the applicant proposes to restore and enhance an upstream reach of Elk Run. Stream mitigation would be performed at a minimum ratio of 2: 1. As wetland mitigation, the applicant proposes to purchase wetland mitigation credit from the Red Stone Farm Mitigation Bank, an approved wetland mitigation bank located in Pike County, Ohio. Wetland mitigation would be performed at a ratio of2:1. The proposed stream mitigation measures would consist of restoration, riparian enhancement and bioengineering bank stabilization on approximately 290 linear feet of Elk Run upstream of the proposed project area.

The applicant proposes to install root wads, log toe, soil lifts, large woody debris structures, three J-Hooks and bank protection within Elk Run. Native riparian trees and herbaceous species would be planted within the riparian buffer and invasive species would be removed. The applicant proposes to permanently preserve the 290 linear foot stream mitigation area, an additional 800 linear feet of Elk Run and a ±50 foot riparian buffer.

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification is required for this project. It is the applicant's responsibility to obtain certification from the Ohio Environmental Protection Agency.

HISTORIC & CULTURAL RESOURCES: The National Register ofHistoric Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the Register which would be directly affected by the proposed work. The applicant has performed cultural resource surveys within the proposed project area. Based on the findings of the surveys, the proposed project area contains the following archaeological and architectural sites: 33AD57, 33AD58, 33AD61, 33AD413, 33AD414, and ADA-558-12. The submitted information indicates these sites are potentially eligible for the NRHP. The Corps has determined the proposed project would have an adverse effect on these sites.

The purpose of this Public Notice is also to solicit comments regarding the proposed adverse affects to potential historic properties within the proposed project area and to identify potential consulting parties that wish to participate in addressing the proposed adverse effects to historic properties.

As mitigation for the proposed adverse effect to properties potentially eligible for the NRHP, the applicant has proposed to conduct archaeological data recovery at sites 33AD57, 33AD58, 33AD61, 33AD413, and 33AD414. The applicant has also proposed to prepare Historic American Building Survey (HABS) documentation of architectural resource ADA-558-12. The archaeological data recovery would be phased and performed prior to any work within Tracts # 1- 4.

Comments concerning archeological or historic concerns should be based upon collected data.

THREATENED & ENDANGERED SPECIES: The project is located within the known or historic range of the following threatened (T) or endangered (E) species: Indiana bat (E), running buffalo clover (E), fanshell mussel (E), pink mucket pearly mussel (E), rayed bean mussel (E), sheepnose mussel (E), and snuffbox mussel (E).

The Corps has determined suitable habitat for the Indiana bat is limited within the project area. The applicant has indicated clearing of potential Indiana bat roost trees is not anticipated. If there is a need to remove suitable roost trees, provided they are cut between September 30 and April 1, the Corps has determined the proposed project may affect, but is not likely to adversely affect the Indiana bat. The Corps has determined the proposed project would have no effect on running buffalo clover.

 The proposed project is within the range of the following mussel species: fanshell mussel, pink mucket pearly mussel, rayed bean mussel, sheepnose mussel, and snuffbox mussel. The applicant has conducted a mussel survey within Elk Run. During the survey, the substrate in the area was characterized as soft clay and silt approximately 1.0 to 1.5 feet thick. Only one live common freshwater mussel, a giant floater (Pyganodon grandis) was found during the survey. No threatened or endangered mussel species were identified. Based on the findings of the mussel survey and given the substrate within the proposed project area, the Corps has determined the project may affect, but would not likely adversely affect, the listed mussel species.

The Corps has determined the proposed project is not likely to adversely affect the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat of such species which has been determined to be critical. 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 area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended). The Corps is also requesting the USFWS concur with the Corps endangered species determinations described above.

PUBLIC INTEREST REVIEW AND COMMENT: Any person who has an interest that may be adversely affected by the issuance of a permit 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 activity. This application will be reviewed in accordance with 33 CFR 320-332, the Regulatory Program ofthe 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)(l) of the CW A. Interested parties are invited to state any objections they may have to the proposed work. The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity 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 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; 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. A permit will be granted unless its issuance is found to be contrary to the public interest.

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 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.

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:

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:

United States Army Corps of Engineers

Attn: CELRH-RD-E Public Notice: LRH-2011-00769-0HR

502 8th Street Huntington,

West Virginia 25701-2070

Please note names and addresses of those who submit comments in response to this public notice become part of our administrative record and, as such, are 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 Ms. Susan Fields of the Energy Resource Branch at (304) 399-5325.