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LRH-2009-318-OHR

Published Feb. 28, 2013
Expiration date: 3/29/2013

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. This notice serves as the United States Corps of Engineers' (Corps) request to the Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application.

 

APPLICANT:

Mr. Larry Lang

Larry Lang Excavating, Incorporated

19371 State Route 60

Beverly, Ohio 45715

 

LOCATION: The proposed project is within the Duck Creek watershed in Marietta, Washington County, Ohio as depicted on Figure 1. Proposed discharges of dredged and/or fill material would occur in the unnamed tributary of Duck Creek. The unnamed tributary to Duck Creek is an indirect tributary to the Ohio River, a traditionally navigable water. The project site is located at latitude 39.40647°N and longitude -81.41404°W.

 

PROJECT HISTORY: On August 11, 2009, the Corps authorized under Nationwide Permit 29 under the March 12, 2007 Federal Register, Notice of Reissuance of Nationwide Permits (72 FR 11092) for the applicant to discharge dredged and/or fill material into 54 linear feet of an unnamed tributary of Duck Creek in conjunction with the installation of a concrete box culvert associated with Phase I of the First Colony project. Phase I of the project involved the construction of a hotel and 1,190 linear feet of public roadway. In 2012, the applicant provided information to the Corps indicating an additional 450 linear feet of the unnamed tributary of Duck Creek had been impacted by the discharge of dredged and/or fill material. The applicant has requested an after-the-fact (ATF) DA authorization for this unauthorized work.

As required by the rules and regulations governing the DA permit program, it was determined that since the unauthorized work did not present an immediate threat to life or property, and the applicant had signed a tolling agreement, an ATF application would be accepted and processed. All investigations and legal proceedings have been suspended pending the outcome of the permit review process. This DA application is being evaluated on its own merits and no consideration has been given to the applicant's unauthorized work activities or prior expenditures.

 

DESCRIPTION OF THE PROPOSED WORK: The applicant has also requested DA authorization for the additional discharge of dredged and/or fill material into 1,085 linear feet linear of waters of the United States to facilitate the construction of Phase II of the commercial development as depicted on Figure 2. The overall 26.3 acre commercial development would involve discharges of dredged and/or fill material into a total of 1,445 linear feet of waters of the United States and would include eighteen (18) lots, two (2) public roadways and associated utilities as depicted on Figure 3. Plans of the proposal are attached to this notice.

 

ALTERNATIVE ANALYSIS: The project is not considered to be water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require the discharge of dredged and/or fill material into waters of the United States, are not available that would achieve the applicant's overall project purpose. No permit will be issued until our review of the alternative analysis clearly shows that 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 this site. If waters of the United States cannot be avoided, impacts must be minimized. A total of2,038 linear feet of the unnamed tributary to Duck Creek, subject to Section 404 Clean Water Act regulation, exists on the project site. Avoidance and minimization efforts were incorporated into the proposal. The applicant has indicated that impacts would be minimized by staging construction and implementing proper erosion and sediment control devices to reduce downstream impacts. The proposed project has been designed to completely avoid impacts to the remaining 953 linear feet of the unnamed tributary to Duck Creek on-site. The applicant would be required to obtain stormwater permits and implement stormwater protection plans as needed for site construction following the requirements of the National Pollutant Discharge Elimination System program.

COMPENSATORY MITIGATION PLAN: The applicant has submitted a conceptual compensatory mitigation statement to compensate for completed and proposed losses of waters of the United States regulated by the Corps. To compensate for permanent impacts to waters of the United States, the applicant proposes to mitigate in the unnamed tributary to Duck Creek watershed by utilizing stream restoration, enhancement and establishment methods. 

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 AND CULTURAL RESOURCES: The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP which would be indirectly or directly affected by the project. A copy of this public notice will be furnished to the Ohio State Historic Preservation Office for their review. Comments concerning archeological sensitivity of the project area should be based upon collection data.

 

ENDANGERED AND THREATENED SPECIES REVIEW: The project is located within the known or historic range of the following endangered species: Indiana bat (Myotis soda/is); Fanshell mussel (Cyprogenia stegaria); Pink mucket pearly mussel (Lampsilis abrupta); Sheepnose mussel (Plethobasus cyphyus); and the Snuffbox mussel (Epioblasma triquetra). The Huntington District has consulted the most recently available information and has determined  that no suitable habitat for the Indiana bat or aforementioned mussel species is present within the proposed project area. We have determined the proposed project would have no effect on Indiana bat or the aforementioned mussel species.

Based on this information, the 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 United States Fish and Wildlife Service 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).

 PUBLIC INTEREST REVIEW AND COMMENT: 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)(l) of the Clean Water Act (40 CFR 230). 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; 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 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.

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:

 

United States Army Corps of Engineers

ATTN:  CELRH-RD-N

Public Notice No. LRH-2009-318-0HR

502 Eighth 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 Mr. Christopher L. Carson of the North Branch at 304 399-5210, by mail at the above address, or by email at christopher.l.carson@usace.army.mil.