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LRH 2006-533-WAB

Published Sept. 30, 2013
Expiration date: 10/29/2013

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 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. Richard Swarts

                                    Southshore Acres, Inc.

                                    1901 North Roselle Road, Suite 711

                                    Schaumburg, Illinois 60195

 

LOCATION:  As depicted on the attached Figure 1, the proposed project would be located (Latitude 40° 30’ 30”, Longitude -84° 27’ 15”) north of Koehn Road between the Mercer-Auglaize County line Road and Shroeder Road, on two parcels totaling 42 acres, on the southern shore of Grand Lake St. Marys and its adjacent wetlands in Auglaize County, Ohio.  Grand Lake St. Marys is a traditional navigable water of the United States. 

PROJECT HISTORY:  On October 30, 2009, the Corps issued a DA permit pursuant to Section 404 of the Clean Water Act to Southshore Acres, Inc. for the proposed discharges of dredged and/or fill material into waters of the United States discussed below.  This DA permit expired on December 31, 2012.  None of the previously authorized discharges of dredged and/or fill material into waters of the United States at the project site had occurred prior to the expiration of the DA permit. 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested DA authorization to discharge dredged and/or fill material into approximately 1.92 acres of wetlands and approximately 1 acre of Grand Lake St. Marys in association with the construction of the Water Color Estates single family residential housing development.  The proposed development would include commons areas, 41 single family lots, 18 condominium units and channels to the lake with other attendant features including roads, utilities, seawalls, and boat slips. 

To facilitate the construction of the development, approximately 3,100 cubic yards of clean native soil consisting of a mix of gravel, sand, silt and clay would be discharged into 0.24 acre emergent, 0.45 acre scrub-shrub and 1.23 acres of forested wetlands in association with fill and grading activities for lot development and road construction.  In addition, the applicant proposes to discharge approximately 2,000 cubic yards of a mixture of native soil and gravel into approximately 1 acre of Grand Lake St. Marys to adjust the shoreline and relocate an existing channel to facilitate the construction of the proposed development.  An estimated 500 cubic yards of rip rap would be discharged along the shoreline and 200 cubic yards of concrete would be discharged along existing channels for the construction of seawalls.  Table 1 lists each individual discharge of dredged and/or fill material associated with each activity for the proposed project. 

 

Table 1.  Proposed Discharges of Dredged and/or Fill material into Waters of the United States

Activity

Aquatic Resource Feature

Area (acres) of Impact

Lot development and road construction

Wetland A

0.449

Lot development and road construction

Wetland B

0.062

Lot development and road construction

Wetland C

0.172

Lot development and road construction

Wetland W1

0.36

Lot development and road construction

Wetland W2

0.82

Lot development and road construction

Wetland W3

0.05

Shoreline leveling, stabilization of shoreline, channel fill and seawalls

Grand Lake St. Marys

0.99

 

Plans (Figures 1 - 2) of the proposal are attached to this notice.

ALTERNATIVES ANALYSIS: A total of approximately 1.92 acres of wetlands and 0.99 acre of Grand Lake St. Marys 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 of the United States cannot be avoided, impacts must be minimized.  A total of approximately 5.133 acres of wetlands, 1.33 acres of Grand Lake St. Marys and 1.002 acres of pond, subject to jurisdiction under Section 404 of the Clean Water Act, exist within the project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed development project.  The initial project design involved the discharge of dredged and/or fill material into 4.14 acres of wetlands and 1.33 acres of Grand Lake St. Marys.  The applicant redesigned its project footprint and reduced it from 48 acres to 42 acres.  As a result, proposed wetland impacts were reduced by 2.22 acres and lake impacts were reduced by 0.33 acre.  No in-water work would occur in Grand Lake St. Marys between April 15 to June 30 to reduce impacts to aquatic species and their habitat.  Additionally, storm water pollution prevention control measures would be utilized throughout the course of the proposed project to avoid the creation of unnecessary turbidity.   

COMPENSATORY MITIGATION PLAN:  To compensate for the proposed losses of waters of the United States associated with the development construction, the applicant’s previously approved and executed compensatory mitigation plan involved the:  preservation of 2.22 acres of existing forested wetland, 1.002 acre pond and 2.78 acres of upland buffer on-site within the 6-acre parcel of land located south of Koehn Road; rehabilitation of 1.1 acres of existing emergent wetland and re-establishment of 2.8 acres of wetlands adjacent to Little Chickasaw Creek off-site on a 5-acre parcel of fallow cropland located north of State Route 219 and just west of Mercer Auglaize County Line Road in Mercer County, Ohio; and extension of existing channels and creation of shallow lake habitat on-site in the backwaters of the proposed channels.  As indicated above, the applicant implemented their mitigation work plan prior to commencing the construction of the development project.  Rehabilitation of 1.1 acres of existing emergent wetland involved planting varieties of willow, oak and maple to repair the wetland’s historic function as a forested wetland, similar to the forested wetland just north of the property.  A 50-foot upland buffer has been created along the south and east of the 2.8 acres of re-established wetlands; a scrub-shrub community exists to the west and an existing forested wetland is located just north of the site.  The wetlands and buffer would be protected in perpetuity through a conservation instrument held by an independent third party.  Monitoring of the site indicates the mitigation areas have become well established and are processing as predicted in the approved compensatory mitigation plan.  No corrective measures have been required by the Corps to date. 

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.  In a letter dated June 29, 2007 in response to the original public notice issued for the previously authorized project, the Ohio State Historic Preservation Office stated their opinion that there will be no historic properties affected by the proposed project and no further coordination with their office was necessary for this project unless there is a change in the scope of the work.  There have been no changes in the scope of the previously authorized activities.  Thus, the Corps has determined that the proposed project would have no effect on a historic property listed on, or eligible for listing on, the NRHP.  A copy of this public notice will be furnished to Ohio 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 endangered Indiana bat (Myotis sodalis).  The Corps has consulted the most recently available information and information provided by the applicant to make an effect determination.  The proposed project site contains areas of forested habitat that may be suitable for

the Indiana bat.  The applicant has indicated that trees would be preserved wherever possible in order to maintain a forested setting for the new homes.  The applicant has also indicated that those trees that cannot be avoided would only be cut prior to April 1 and after September 30 when bats would not be using such habitat.  Therefore, due the applicant’s avoidance and minimization measures, 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) of the 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 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 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-2006-533-WAB

                                                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 Teresa Spagna of the North Branch at (304) 399-5210, by mail at the above address, or by email at: teresa.d.spagna@usace.army.mil.