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Published May 16, 2013
Expiration date: 6/16/2013

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army Permit under the provisions of Section 404 of the 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.


APPLICANT:                 Mr. Alan Wood

                                    Ohio Power Company dba AEP

                                    1 Riverside Plaza, 22nd Floor

                                    Columbus, Ohio  43215


LOCATION:  The proposed project is located within unnamed tributaries to Turkey Run and unnamed tributaries to Stingy Run, and within wetlands abutting these tributaries, in Cheshire, Gallia County, Ohio. Turkey Run and Stingy Run flow into Kyger Creek, a tributary to the Ohio River, a Section 10 navigable waterway.  The project is located near latitude 38.9583 and longitude -82.1459.  A project location map is attached to this notice as Drawing 1 of 9.


DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge fill material into waters of the United States (U.S) in association with the expansion of the existing Gravel Hill Landfill.  The landfill is used for the disposal of coal combustion byproduct waste (residual waste) generated at the applicant’s Gavin Power Plant, a coal-fired electric generating station.  The Gavin Power Plant generates a yearly rate of 2.6 million cubic yards of residual waste per year.  The existing landfill is expected to reach its capacity in 2015.  Under the current proposal, the landfill would be expanded vertically and laterally to increase the existing 246-acre landfill by approximately 187 acres.  The proposed project would include new disposal cells, leachate and stormwater conveyances, treatment ponds, access roads, and monitoring wells. 

To expand the landfill and construct the attendant features, the applicant proposes to place fill material into 3.433 acres of four wetlands and 1,805 linear feet of three streams as described in Tables 1 and 2 below.  Plans of the proposal are attached to this notice.

Table 1 - Proposed Wetland Fill


Wetland ID


Size (Acres)

Fill Area (Acres)

Drawing No.

Wetland 6




6 of 9

Wetland 7




6 of 9

Wetland 23




2 of 9

Wetland 28




6 of 9

Total Wetland Fill

3.433 acres


Table 2 - Proposed Stream Fill


Stream ID

Flow Regime

Length Delineated (lf)

Fill Length (lf)

Drawing No.

Stream 3




6 of 9

Stream 4




6 of 9

Stream 13




2 of 9

Total Stream Fill

1,805  linear feet

ALTERNATIVES ANALYSIS:   As a result of the proposal, fill material would be discharged into 3.433 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.  In addition to evaluating the expansion of the existing landfill, the applicant has indicated they have gone through a systematic process to identify additional landfill sites.  The applicant conducted a siting study on ten off-site locations within a 5-mile radius of the Gavin Power Plant.  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 location indicated at the beginning of this notice.  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 U.S., consideration must be given to avoiding these areas.  If waters of the U.S. cannot be avoided, the discharge of fill material into waters of the U.S. must be minimized.  A total of 3.503 acres of four wetlands and 3,657 linear feet of three streams subject to jurisdiction under Section 404 of the Clean Water Act exist within the project area.

According to the applicant, due to the large area needed for a landfill, the discharge of fill material into wetlands and streams is unavoidable.  The applicant has indicated they initially considered expansion projects that would be lateral (horizontal or outward) only.  The applicant has indicated the discharge of fill material into waters of the U.S. was minimized through the development of a plan that includes both the lateral and vertical expansion of the existing landfill.  By expanding the landfill vertically in conjunction with a lateral expansion, the applicant has indicated approximately 1.7 acres of wetland and more than 1,000 linear feet of stream were avoided in comparison to the plans that only involved a lateral expansion.  The applicant has indicated the discharge of fill material into waters of the U.S. has been avoided and minimized to the maximum extent practicable and has indicated that the proposed discharges of fill material into wasters of the U.S. are unavoidable. 


COMPENSATORY MITIGATION PLAN:  As mitigation for the proposed discharge of fill material into jurisdictional wetlands, the applicant has submitted a conceptual mitigation plan that includes the creation of a 10.32-acre low-gradient, riverine wetland with a 2.12 acre wetland buffer within a mitigation site located approximately 2.4 miles from the proposed project area.  This area is referred to as Mitigation Area A and is shown in the attached Drawing 1 of 9. 

As mitigation for the proposed stream fill, the applicant proposes stream preservation and riparian enhancement within three mitigation areas, referred to as Mitigation Area A, Mitigation Area B, and Mitigation Area C on the attached Drawing 1 of 9.  Proposed stream mitigation measures are described further in Table 3 below.


Table 3 – Proposed Stream Mitigation


Mitigation Area

Mitigation Activity

Mitigation Length

(linear feet)

Mitigation Area A

Stream preservation and riparian enhancement along Kyger Creek


Mitigation Area B

Stream preservation and riparian enhancement along an unnamed tributary to Kyger Creek


Mitigation Area C

Stream preservation and riparian enhancement along Stingy Run and an unnamed tributary to Stingy Run


Total Stream Mitigation Length

2,790 linear feet


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 of Historic 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 completed a Phase I Cultural Resources Management (CRM) Survey for an approximate 220-acre study area that may include all or a portion of the proposed project area.  No historic properties were identified in the study area for the CRM survey.  The Corps is currently reviewing the survey to ensure it is technically adequate and to determine if additional CRM surveys are required.  A copy of this public notice, the Phase I CRM report and the Corps’ determination regarding effects to historic properties will be furnished to the State Historic Preservation Office for their review and response.  Comments concerning archaeological sensitivity of the project area should be based on 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), fanshell mussel (E), pink mucket pearly mussel (E), sheepnose mussel (E), and snuffbox mussel (E). 

The applicant has indicated suitable habitat for the Indiana bat is limited within the project area and has indicated implementation of the proposal would result in approximately 20 acres of tree clearing in four separate areas measuring four (4) to seven (7) acres.  The proposed project area is heavily disturbed due to historic strip mining and existing landfill operations.  The applicant proposes to remove any suitable habitat for the Indiana bat during the winter, when bats are in hibernation.  Provided suitable Indiana bat habitat is removed 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.  Due to the project size and location, the Corps has determined the proposed project would have no effect on the mussel species listed above. 

The Corps 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 U.S. Fish and Wildlife Service (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.  Requests for public hearings shall state, with particularity, the reasons for holding 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 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 CWA.  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:


                        United States Army Corps of Engineers

                        Attn: CELRH-RD-E   Public Notice: LRH-2011-00531-OHR

                        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 Porter of the Energy Resource Branch at (304) 399-5325.