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LRH 2013-751-BCR

Published Nov. 21, 2013
Expiration date: 12/20/2013

PUBLIC NOTICE: The District Engineer has received a mitigation plan to establish a wetland and/or stream compensatory mitigation bank for Federal and State permits as described in this Public Notice.  Issuance of a public notice regarding proposed mitigation banks is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 332).  The purpose of this public notice is to inform you of the proposed mitigation bank and 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.

INTERAGENCY REVIEW TEAM: As indicated in the U.S. Army Corps of Engineers (Corps) regulations [33 CFR 332.8(b)], the District Engineer has established an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments.  The Corps Huntington District (Regulatory Division) is the lead district for the state of West Virginia (WV) and chairs (or leads) the WV IRT.  The WV IRT consists of the following federal and state resource agencies: Corps Huntington and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA), U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS), West Virginia Department of Environmental Protection (WVDEP) and West Virginia Division of Natural Resources (WVDNR).

REGULATORY PROGRAM: Since its early history, the Corps has played an important role in the development of the nation's water resources.  Originally, this involved construction of harbor fortifications and coastal defenses.  Later duties included the improvement of waterways to provide avenues of commerce.  An important part of our mission today is the protection of the nation's waterways through the administration of the Corps Regulatory Program.

SECTION 10: The Corps is directed by Congress under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition or capacity of navigable waters of the U.S.  The intent of this law is to protect the navigable capacity of waters important to interstate commerce.

SECTION 404: The Corps is directed by Congress under Section 404 of the Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the U.S., including wetlands.  The intent of the law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical and biological integrity.

TO WHOM IT MAY CONCERN: 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 this proposed mitigation bank.

BANK SPONSOR:    Mountain State Mitigation Credits Company

PO Box 294

Man, West Virginia  25635

LOCATION: The proposed mitigation bank site is located on an approximately 230-acre parcel on Big Horse Creek east of Woodville on the border between Boone and Lincoln Counties, West Virginia.  The mitigation bank site includes Big Horse Creek and unnamed tributaries to Big Horse Creek, Gunnel Branch and unnamed tributaries, adjacent floodplains and upland corridors.  Big Horse Creek is a tributary to the Little Coal River.

DESCRIPTION OF THE PROPOSED WORK: The Sponsor, Mountain State Mitigation Credits Company (MSMCC), received approval for the Mountain State Mitigation Credits Company Umbrella Mitigation Banking Instrument (UMBI) on September 15, 2011 (LRH-2009-153-GUY).  Under the UMBI, the Corps also approved the Buffalo Creek Mitigation Bank located on Buffalo Creek and unnamed tributaries to Buffalo Creek along Buffalo Creek Road east of Saunders, Logan County, West Virginia.  As defined in 33 CFR 332.8, an umbrella mitigation banking instrument is a single mitigation banking instrument which provides for future authorization of additional mitigation bank sites.  As additional sites are selected, they must be included in the mitigation banking instrument as modifications.  Therefore the current proposal is being considered a modification to MSMCC’s UMBI.

MSMCC has submitted a Mitigation Site Plan to the Huntington District Corps of Engineers and the other members of the WV IRT to develop and operate a stream mitigation bank to be known as the Big Horse Creek Mitigation Bank.  The purpose of the mitigation bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts (including the discharges of fill material) to streams within the specified service area.  The proposed bank will involve the enhancement, restoration, and preservation of stream channels and their associated riparian buffers.

Mitigation banks are defined as a site, or suite of sites, where resources (e.g. wetlands, streams, riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by Department of the Army permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act.  In general, units of restored, established, enhanced, or preserved streams (or wetlands) are expressed as “credits” which may be subsequently withdrawn to offset “debits” incurred at a project development site.  The Corps is responsible for authorizing the use of a particular mitigation bank on a project-specific basis and determining the number and availability of credits required to compensate for proposed impacts.  Decisions rendered by the Corps will fully consider all comments submitted as part of the permit evaluation process.  In areas where a functional or condition assessment or other suitable metric is not available, a minimum one-to-one acreage (for wetlands) or linear foot (for streams) compensation ratio must be applied in order to achieve a federally mandated “no net loss of aquatic resources.”  Wetland credits would correlate with wetland acreage and classification (i.e. emergent, scrub-shrub and forested).  Stream credits would correlate with linear feet (lf) or acceptable forms of assessments and classification of streams.  Acceptable forms of assessments would include those based upon best available science that can be measured or assessed in a practicable manner.

This mitigation bank would provide compensatory mitigation options to counties in West Virginia which may receive development-type pressures within the surrounding area.  The Big Horse Creek Mitigation Bank would implement restoration measures and conserve the aquatic environment and upland buffer areas in an effort to provide ecological benefits including improvements to water quality, fish and wildlife habitat, erosion control, and flood conveyance and storage within the watershed.  The primary Geographic Service Area (GSA) would be the Coal River Watershed as defined by the 8-digit Hydrologic Unit Code (HUC) No. 05050009.  The sponsor has also proposed a secondary GSA, which would be the Upper Guyandotte River Watershed (HUC 05070101).

The goal of the Bank is to restore and preserve self-sustaining, functional stream corridors to replace the functions and values lost due to unavoidable adverse impacts to streams from current and historic coal mining and road construction activities.  The Bank is anticipated to include the channel of Big Horse Creek, Gunnel Branch and unnamed tributaries to Big Horse Creek and Gunnel Branch, and riparian buffers.  Some of the targeted functions include improvements to wildlife habitat, water quality, flood conveyance and storage, and erosion control through the implementation of natural channel design and the reestablishment of riparian buffers.  The Bank Sponsor proposes to meet the Bank’s goals through restoration and preservation of contributing perennial, intermittent and ephemeral stream channels as summarized below:

Restoration:  Restoration is proposed for 6,600 lf of perennial stream channel (main stem of Big Horse Creek).  The restoration of dimension, pattern, and profile of this reach is proposed to improve the overall channel condition and establish fish habitat through the creation of pools.  The restoration would be accomplished through mitigation work proposed at twenty (20) “Improvement Points” scattered throughout the length of the reach.  Stable natural areas within the same stream would be analyzed and used as reference in this design process.  Additionally, supplemental plantings would be installed along the uppermost left-descending bank (few hundred feet) and along some of the banks of the Improvement Points to provide additional stream bank stabilization and supplemental riparian buffer plantings.  The majority of the existing riparian buffer of this stream reach, however, is in relatively good condition with dense forest on both banks.

Preservation: A 100-foot riparian buffer (50 feet from each bank) is proposed along both banks of all restored and enhanced streams (including ephemeral stream channels) within the project boundary.  A total of 3,066 lf of intermittent stream and 1,468 lf of ephemeral stream are proposed for preservation only (i.e. no restoration or enhancement activities are proposed for these streams).

Figures 1 and 2 of 7 show the location of the proposed mitigation bank.  Figure 3 of 7 is a map of the mitigation streams with the associated proposed riparian buffer.  Figure 4 of 7 shows the location of all the proposed Improvement Points along Big Horse Creek.  Figures 5 through 7 of 7 show typical cross sections of the proposed work along Big Horse Creek.

Preliminary design plans of the proposed mitigation activities are attached to this notice.  The full mitigation work plan is available for review upon request.

WATER QUALITY CERTIFICATION: In accordance with Nationwide Permit No. 27 [under the February 21, 2012 Federal Register, Reissuance of Nationwide Permits (77 FR 10184)], a general Section 401 Water Quality Certification with special conditions applies.  Prior written approval is required from the WVDEP Division of Water and Waste Management in concurrence with the WVDNR.

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The National Register of Historic Places has been consulted and it has been determined there are no historic properties currently listed on the National Register within the area to be affected by the project.  Based on the limited amount of ground disturbance proposed, the Corps has determined the proposed project would have no effect on properties listed on or eligible for listing on the National Register.

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 potential effects on historic properties.  If you wish to provide comments or objections regarding the effect of the proposed project on historic properties, please provide this information to our office prior to the close of the comment period.

THREATENED & ENDANGERED SPECIES: This public notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended).  Three (3) federally listed endangered species, the Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis) and eastern cougar (Felis concolor cougar) may occur within the proposed project area.

The project would involve stream restoration and preservation work performed within forested areas as well as the restoration and protection of stream-side riparian corridors.  No known Indiana bat or northern long-eared bat hibernacula exists and no adverse impacts, like timber removal, would be conducted upon the proposed bank site.  The proposed activities would be expected to result in stream and riparian corridor improvements.  Based on the nature of the project, this office has determined the proposed project may affect (in a positive aspect), but would not likely adversely affect the Indiana bat and northern long-eared bat.  No critical habitat for the eastern cougar has been identified within the state of West Virginia.  Any stream restoration activities would not be expected to disrupt or alter the habitat or mobility of the eastern cougar.  Therefore, this office has determined the proposed project would have no effect on the eastern cougar.  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).

PUBLIC INTEREST REVIEW AND COMMENT: Any person who has an interest that may be adversely affected by the approval of this mitigation bank 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 of the Corps, and other pertinent laws, regulations, and executive orders.  Interested parties are invited to state any objections they may have to the proposed work.  The decision whether to approve this mitigation bank 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.  Any person may submit cumulative impact information, which is substantive and specifically associated with the proposed action.  In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, USEPA, under the authority of Section 404(b) of the Clean Water Act.  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.

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 this proposed mitigation bank.  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 approve, modify, condition or deny 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:

U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2013-751-BCR

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 call Mr. James Spence at (304) 399-5610.