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LRH-0-57347-WAL

Published April 26, 2013
Expiration date: 5/28/2013
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 Army Corps of Engineers' (Corps) request to the Ohio Environmental Protection Agency (OEPA) to act on Section 401 Water Quality Certification for the following application.

 

APPLICANT:               Mr.Kenneth Holland

The Olen Corporation

4755 South High Street

Columbus, Ohio  43207

 

LOCATION: The 445-acre project site is located (40.7556° North, 81.9510° West) in unnamed tributaries o fKillbuck Creek and adjacent wetlands located north of Messner Road and west of Prairie Lane, south of the City of Wooster, in Wayne County, Ohio (See attached Sheet 1 of 9). The unnamed tributaries of Killbuck Creek are indirect tributaries to the Walhonding River, a traditional navigable water (TNW) of the United States.

PROJECT HISTORY: On August 29, 1994, this office granted a DA Section 404 Clean Water Act individual permit to Prairie Land Corporation for the discharge of dredged and/or fill material into 24.9 acres of wetlands for the expansion of the sand and gravel mining operation on-site, at the location specified above.  Compensatory mitigation included the preservation and donation of 18 acres of existing wetlands to the Ohio Department of Natural Resources (ODNR) and restoration of 10.4 acres of wetlands in the southern part ofthe property.  Monitoring ofthe restoration area was completed in 1999.

DESCRIPTION OF PROPOSED WORK: The applicant has requested DA authorization for completed and proposed discharges of dredged and/or fill material into 9.07 acres of wetlands (6.18 acres unauthorized; 2.89 acres proposed) and 8,210 linear feet of unnamed tributary to Killbuck Creek (4,363 linear feet unauthorized; 3,847 linear feet proposed) (See attached Sheets 2 through 6 of 9). Approximately 6.18 acres of wetlands (Wetlands 5, 11, 12 and 15) adjacent to unnamed tributaries o fKillbuck Creek and 4,363 linear feet of unnamed tributaries to Killbuck Creek (Open Ditches 5, 6 and 7 and Impact Ditch) have been impacted by the unauthorized discharge of dredged and/or fill material associated with the on-going aggregate (sand and gravel) mining activities on­ site.

The applicant has requested after-the-fact authorization to maintain the completed discharges of dredged and/or fill material into the aforementioned waters of the United States. As required by the rules and regulations governing the Department of the Army permit program, our office has determined that, since the completed work does not present an immediate threat to life or property, an after-the-fact application would be accepted and processed. All investigations and legal proceedings regarding this unauthorized activity will be suspended pending the outcome of the permit review process. This application will be evaluated on its own merits and no consideration will be given to the applicant's unauthorized work activities or prior expenditures.

The applicant has also requested DA authorization to discharge dredged and/or fill material into 2,836 linear feet (1.95 acre) of Open Ditch 1 and 1,011 linear feet (0.46 acre) of Open Ditch 12 for the construction and expansion of gravel access roads (See attached Sheets 2 through 5 of 9). Fill material would also be discharged into 2.89 acres of wetlands (Wetlands 4, 5, 12 and Open Water 2 Fringe Wetland) as a result of topsoil removal activities, which would be conducted via bulldozer (See attached Sheets 2, 4 and 5 of 9). Once the topsoil is removed, the 2.89 acres of wetland would be excavated via a clamshell excavator operated from a barge for the expansion of the sand and gravel mining operation. In addition, approximately 900 linear feet (0.21 acre) of Open Ditch 9 would be excavated for the expansion of the sand and gravel mining operation (See attached Sheets 2 and 5 of 9).  The excavation of material from Open Ditch 9 would not result in a discharge of dredged or fill material and is not subject to Section 404 of the Clean Water Act.  Similarly, clamshell excavation from a barge would be conducted in Open Water 1 (See attached Sheets 2 and 4 of 9). This activity would not result in a discharge of dredged or fill material and is not subject to Section 404 of the Clean Water Act.

Further, the applicant proposes to discharge dredged and/or fill material into 0.1 acre of isolated Wetland 2 and 0.6 acre of isolated Open Water 2. These two aquatic resources are not subject to jurisdiction under Section 404 of the Clean Water Act. However, isolated waters are regulated by the OEPA.

The applicant has requested a 40-year DA permit to complete the work based on local demand for the aggregate. The mining operation is also regulated by the Ohio Department of Natural Resources (ODNR), Division of Mineral Resources under the Industrial Minerals Program (permit number IM-547). Plans ofthe proposal are attached to this notice.

ALTERNATIVES ANALYSIS: A total of 9.07 acres of wetland and 8,210 linear feet of unnamed tributary to Killbuck Creek would be filled as a result of the proposal. 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 this presumption prior to receiving authorization for the discharge of fill material. The applicant has submitted the required alternatives analysis and it is currently under review.  A complete copy of the applicant's alternatives analysis can be reviewed by appointment at the above address.  No permit will be issued until our review of the alternatives 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 ofthe United States cannot be avoided, impacts must be minimized. A total of approximately 36.53 acres of wetlands, 19,703 linear feet of unnamed tributaries, and 61.60 acres of deep water habitat, subject to jurisdiction under Section 404 of the Clean Water Act exist within the project area (See attached Sheet 7 of 9). Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed mining project. In particular, under the applicant's minimal degradation alternative, approximately 27.46 acres of wetlands, 10,593 linear feet of unnamed tributaries and 54.50 acres of deep water habitat would be avoided as part of the overall operation. Additionally, storm water pollution prevention control measures, such as the use of the on-site storm water retention basin, would be utilized to prevent secondary effects to Killbuck Creek through the discharge of silt laden water.

COMPENSATORY MITIGATION PLAN: To compensate for the unauthorized and proposed losses of waters of the United States associated with the continued mining on-site, the applicant has proposed to perform off-site mitigation on the ODNR Killbuck Marsh Wildlife Area (See attached Sheets 1 and 9 of 9). The applicant has proposed to restore 13.2 acres of wetland in the Killbuck Marsh Wildlife Area through the construction of a levee. The levee is intended to increase hydrology on-site and aid in the formation of prairie sedge meadow wetlands that may serve as feeding and nesting habitat for the Sandhill Crane.

The applicant also proposes to protect, in perpetuity, the remaining portion of Wetland 4 (3.7 acre) and the avoided Wetland 8 (0.8 acre), Wetland 9 (0.8 acre), Wetland 10 (3.0 acre) and Wetland 11 (12.6 acre). These areas would be protected by deed restriction with a 25-foot vegetated buffer around the perimeters of each wetland. (Wetland 9 is a non-jurisdictional, isolated wetland.) To compensate for the impacts to the Open Ditches, the applicant proposes to preserve the remaining Open Ditches, at a rate of 1:1, for a total of 4.05 acres. Lastly, the applicant is seeking credit for a 3.0-acre portion of wetland mitigation that was performed under the 1994 DA permit, but for which the previously authorized impacts to waters of the United States were not completed.

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification may be required for this project. It is the applicant's responsibility to obtain certification from the OEPA.

HISTORIC AND CULTURAL RESOURCES: The National Register of Historic Places (NRHP) has been consulted and it has been determined that there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work. Coordination with the Ohio Historic Preservation Office (OHPO) was completed under the 1994 DA permit review. Under the 1994 DA permit review, the OHPO concurred that the proposed project would have no effect on any historic properties listed in, or eligible for listing in, the NRHP. The current proposal would expand the mining operation on-site, but would not affect potentially sensitive areas identified in the 1994 permit review. Thus, the Corps has determined that the proposed project would have no effect on a historic property listed in, or eligible for listing in, the NRHP. ;A copy of this public notice will be furnished to the State Historic Preservation Office for their review. Comments concerning archaeological sensitivity of the project area should be based on collected data.

THREATENED AND ENDANGERED SPECIES: The proposed project is located within the known or historic range of the following federally-protected species:  Indiana bat (Myotis soda/is) (Endangered) and eastern prairie fringed orchid (Plantanthera leucophaea) (Threatened).  The Corps has consulted the most recently available information and information provided by the applicant to make an effect determination.  The project site contains poor quality, degraded and disturbed, emergent wetlands invaded by non-native plant species that do not appear to provide suitable habitat for the eastern prairie fringed orchid.  Thus, the Corps has determined that, due to the poor quality of habitat on-site, the proposed project would have no effect on the eastern prairie fringed orchid.  The proposed project site contains some forested habitat in the northern portion of the site.  This forested area would be avoided by the proposed mining expansion.  Should tree-cutting activities be required, the applicant has proposed to minimize the potential impact to the Indiana bat through the implementation of a seasonal tree-clearing restriction (prior to April 1 and after September 30). Therefore, due to limited habitat on-site, the avoidance of potentially suitable habitat, and the implementation of a tree-clearing  restriction, the Corps has determined that the proposed project is not likely to adversely affect the Indiana bat.  Based on this information, 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 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) ofthe Endangered Species Act of 1972 (as amended).

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 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 ofthe 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 ofthis 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 ofthe comment period listed on page one ofthis 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-0-57347-WAL

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 Megan Oberst of the Dover Regulatory Field Office at (330) 364-6177, by mail at the above address, or by email at: megan.c.oberst@usace.army.mil.