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LRH 2013-640-GMR

Published Jan. 29, 2014
Expiration date: 2/27/2014

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. Jason Wisniewski

                                    Grand Communities, Ltd.

                                    3940 Olympic Boulevard, Suite 100

                                    Erlanger, Kentucky 41018

 

LOCATION:  As depicted on the attached “Site Location Map” (Sheet 1 of 5), the proposed project would be located within the watershed of an unnamed tributary of Shaker Creek (Latitude 39.449793, Longitude -84.299924), south of Greentree Road, west of State Route 741, north of State Route 31, and east of Union Road in Turtlecreek Township, Warren County, Ohio.  Shaker Creek is a perennial relatively permanent water and an indirect tributary to the Great Miami River, a traditional navigable water of the United States.    

PROJECT HISTORY:  On February 28, 2005, the Corps-Louisville District authorized Shaker Land Development, LLC to discharge dredged and/or fill material into 141 linear feet (0.006 acre) of intermittent stream in conjunction with Phase 1 (See Sheet 2 of 5) of the Shaker Run residential development under the Nationwide Permit program described in the January 15, 2002 Federal Register, Final Notice of Issuance of Nationwide Permits (67 FR 2020).  This project consisted of constructing 170 homes on approximately 55 acres.  The original design of the development included two independent construction phases.  Portions of the Phase I and II sites include the Shaker Run Golf Course and utility easements.  The previously authorized discharge of dredged and/or fill material into waters of the United States was completed prior to the expiration of the aforementioned nationwide permits.  Phase I of the residential development is nearing completion and most lots have been developed. 

 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested DA authorization to discharge dredged and/or fill material into approximately 0.61 acre of wetlands and 2,442 linear feet of streams in association with the construction of Phase II of the Shaker Run planned community development (See Sheet 3 of 5) as shown on the attached Table 1.  Public street access to Phase II goes through Phase I.  Phase II would have its own utilities separate from Phase I’s utilities.  Cumulatively, Phase I and Phase II would involve discharges of dredged and/or fill material into a total of 0.61 acre of wetlands and 2,612 linear feet of streams.  The proposed 100 acre Phase II development would include 437 residential lots, 17 roads and cul-de-sacs, and landscaped areas integrated with the existing golf course layout, 15.7 acres of future greenspace areas, and existing utility easements.  Plans (Sheets 1 through 5) of the proposal are attached to this notice.

 

ALTERNATIVES ANALYSIS: A total of approximately 0.61 acre of wetlands and 2,442 linear feet of streams 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.  As indicated on the attached Table 2, approximately 1.83 acres of wetlands, 3,715 linear feet of perennial stream, 4,932 linear feet of intermittent streams, 293 linear feet of ephemeral streams and 1.24 acre of open water pond were identified on the approximate 100 acre property.  Sheet 4 of 5 depicts the locations of the on-site aquatic resources. 

Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed development project.  The applicant’s preferred development alternative design would involve the discharge of dredged and/or fill material into 1.70 acres of wetlands (93% of the on-site wetlands) and 7,105 linear feet of streams (80% of the on-site streams).  Under the applicant’s minimum degradation alternative (the proposed action), the applicant redesigned its project footprint, reduced the available lots by 18% (535 to 437), and reduced wetland impacts to 0.61 acre (Wetlands B, E, H, I and portions of D) and 2,442 linear feet of intermittent and ephemeral streams (Streams 4, 5, 6, 7, 8, and 9) as shown on the attached Table 1.  Therefore, as indicated on the attached Table 2, approximately 1.22 acres (67% of the on-site wetlands) of wetlands, 6,498 linear feet (75% of the on-site streams) of streams and 1.24 acres of open water pond (100%) would be avoided by the proposed project. 

The proposed development would be integrated around the existing fairways and open water ponds on-site.  All avoided waters of the United States on-site would be clearly demarcated with highly visible material to protect these resources from inadvertent impacts beyond those which are proposed to be authorized.  This material would be maintained throughout construction.  Construction activities would be performed during low flow or no flow conditions.  Stormwater management planning would incorporate best management practices and other techniques necessary to maintain compliance with the Federal Water Pollution Control Act, Ohio Water Pollution Control Act, and the City of Lebanon Stormwater Management Ordinances for stormwater discharges associated with construction activity.  Stormwater management planning would address issues related to both water quantity and water quality as stipulated by the Phase II National Pollutant Discharge Elimination System requirements.  Stormwater pollution control plans would be prepared as various phases of the site are developed.  These plans would incorporate non-structure preservation methods, erosion prevention practices, sediment controls, runoff controls, post-construction stormwater management, surface water protection, non-sediment pollution controls, and ongoing maintenance plans.  Existing ponds present in the central and western portions of the site would also be used for stormwater management.  Properly-sized culverts would be installed to convey flow where intermittent stream impacts (Streams 4, 5, and 8) are unavoidable at the site.  The new culverts would be of sufficient size to accommodate bankfull discharge and would be installed at a similar streambed slope in order to allow for passage of aquatic organisms.  No area for which grading has been completed would be unseeded for longer than 14 days.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities. 

 

COMPENSATORY MITIGATION PLAN:  To compensate for the proposed losses of waters of the United States associated with the proposed development, the applicant proposes to:  purchase 1.2 mitigation credits from a Federally-approved wetland mitigation bank; restore 1,400 linear feet of perennial Stream 1; and enhance 2,100 linear feet (4.8 acres) of Stream 1 and Stream 3.  Restoration efforts would include the following activities: 

 

  • stabilizing the toes of the slopes; regrading existing banks to a minimum slope of 2.5:1;
  • installing j-hooks or similar in-stream habitat structures to divert erosive force associated with the thalweg away from the toe-of-slopes; and
  • re-vegetating the banks and riparian areas using erosion control matting, native seed mixes, and live stake species. 

Enhancement efforts would include removing invasive plant species and revegetating native plant species within the streams’ riparian areas.  Existing, desirable tree and shrub species would be preserved.  The riparian buffer widths would range between 50 and 100 feet and would include both sides of each stream.  The restored and enhanced streams and their associated riparian buffers would be protected in perpetuity through a conservation easement.  Sheet 4 of 5 depicts the locations of the on-site mitigation areas.  A final compensatory mitigation plan, once it has been submitted, will be available for review. 

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.  A cultural resource literature review was completed by the applicant for the proposed project area.  No structures are on-site or in the immediate vicinity except a golf course clubhouse.  The development would include residential construction around existing golf course fairways and other facilities.  Two NRHP properties (Armco Mounds I and II) are situated between 1.6 km (~0.99 mile) and over 2 km (~1.24 miles) to the northeast of the center of the project area.  These sites are not within the viewshed and would not be impacted by the proposed project.  Prior to the development of the site as the Shaker Run Golf Course, the Union Village Shaker community, established in 1805, used the site for farmland and pasture.  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), proposed endangered northern long-eared bat (Myotis septentrionalis), endangered running buffalo clover (Trifolium stoloniferum), and endangered rayed bean mussel (Villosa fabalis).  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 active agricultural land (~30%), active golf course/mowed grass areas (~20%), multiple headwater streams, a pond, wetlands and some forest areas.  Two maintained utility corridors (~10%) cross through the middle of the site and intersect near the center.  The on-site streams, wetlands and some forest areas, comprising approximately ~40% of the site, may provide foraging areas.  However, most of the wetlands and streams occurring on the site are either densely vegetated with shrubs or mowed completely and do not provide good flight corridors or use for foraging.  The forested areas, consisting of American elm, hickory, honey locust and maple ranging from 10 to 20 inches in diameter at breast height, may provide roosting habitat for the Indiana bat and northern long-eared bat.  The interior of the woodlots have thick understories dominated by honeysuckle, grape, and rose. 

A bat mist-net survey was performed on the 100 acre project site in August 2013 to determine if endangered bats use the project area for travel, foraging, or roosting.  Mist-netting procedures used for the survey followed protocols approved by the United States Fish and Wildlife Service (USFWS).  Acoustic calls were also identified during the survey efforts.  No Indiana bats or northern long-eared bats were captured during the mist-net survey efforts.  In addition, neither species were detected during the acoustic survey.  As indicated above, approximately 1.22 acres (67%) of wetlands and 6,498 linear feet (75%) of streams would be avoided by the proposed project.  The applicant has indicated that trees would be preserved wherever possible in order to maintain a forested setting for the new homes.  Due to the applicant’s avoidance and minimization measures, the Corps has determined that the proposed project may affect, but would not likely adversely affect the Indiana bat or northern long-eared bat. 

According to the USFWS, there are no known records of the running buffalo clover within five miles of the project site.  Based on the existing site conditions, no suitable habitat for the running buffalo clover is present.  Thus, the Corps has determined that the proposed project would have no effect on running buffalo clover.  According to the USFWS, there are known records of the rayed bean mussel within five miles of the project site.  Streams 6, 7 and 9 are dry ephemeral channels dominated by silt substrate.  Stream 5 exhibits an intermittent flow regime and is dominated by gravel and sand substrate with lesser amounts of silt and leaf packs/woody debris.  Stream 8 exhibits an intermittent flow regime and is dominated by sand and silt with lesser amounts of gravel, cobble, and leaf packs/woody debris.  The applicant would use best management practices as indicated above to minimize erosion and sedimentation and to avoid impacts to aquatic species.  Thus, the Corps has determined that the proposed project may affect, but would not likely adversely affect the rayed bean mussel. 

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 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 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-2013-640-GMR

                                                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.                                                    

                                                                                                     

                                                                                                                      

Table 1.  Proposed Discharges of Dredged and/or Fill material into

Waters of the United States at the Phase II Shaker Run Planned Community Development

Activity

Aquatic Resource Feature ID

Aquatic Resource Type

Area (acres) of Wetland Impact

Linear Feet of Stream Impact

Lot Development

Wetland B

Modified Category 2 Palustrine Emergent and Scrub-Shrub, persistent, seasonally flooded/saturated (PEM/SS1E)

0.37

 

Lot Development/Road Construction

Wetland D

Category 1 PEM1E

0.02

 

Lot Development

Wetland E

Category 1 PEM1E

0.04

 

Lot Development/Road Construction

Wetland H

Category 2 PEM/SS1E

0.13

 

Lot Development

Wetland I

Modified Category 2 PEM/SS1E

0.05

 

Road Construction

Stream 4

Intermittent Stream

0.003

40

Lot Development/Road Construction

Stream 5

Intermittent Stream

0.19

1414

Lot Development/Road Construction

Stream 6

Ephemeral Stream

0.003

59

Lot Development

Stream 7

Ephemeral Stream

0.003

56

Lot Development/Road Construction

Stream 8

Intermittent Stream

0.06

695

Lot Development/Road Construction

Stream 9

Ephemeral Stream

0.01

178

 


 

Table 2. Aquatic Resources at the Phase II Shaker Run

Planned Community Development Review Site

Aquatic Resource ID

Latitude

Longitude

Flow Regime or Cowardin Class

Estimated Length and/or acreage of aquatic resource in review area

Estimated Length and/or acreage of aquatic resource avoided

Stream 1

39.453331

-84.310588

Perennial

3,715

3715

Stream 2

39.45393249

-84.30907

Intermittent

513

513

Stream 3

39.4535713

-84.309618

Intermittent

117

117

Stream 4

39.45120556

-84.309831

Intermittent

990

950

Stream 5

39.45039044

-84.303305

Intermittent

2,417

1003

Stream 6

39.45063538

-84.301586

Ephemeral

59

0

Stream 7

39.4505504

-84.3045

Ephemeral

56

0

Stream 8

39.44996682

-84.30602

Intermittent

895

200

Stream 9

39.44963711

-84.305407

Ephemeral

178

0

Wetland A

39.45394305

-84.308944

PEM/SS1E

1.01

1.01

Wetland B

39.45159643

-84.309965

PEM/SS1E

0.37

0

Wetland C

39.45076348

-84.308487

PEM/SS1E

0.04

0.04

Wetland D

39.45162065

-84.307595

PEM

0.09

0.07

Wetland E

39.45097576

-84.30721

PEM

0.04

0

Wetland F

39.44989952

-84.308629

PEM

0.01

0.01

Wetland G

39.45102689

-84.301252

PEM/SS1E

0.09

0.09

Wetland H

39.45028739

-84.306768

PEM/SS1E

0.13

0

Wetland I

39.44967813

-84.305623

PEM/SS1E

0.05

0

Open Water Pond

39.4508561

-84.307929

open water pond

1.24

1.24