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LRH 2014-237-GMR

Published April 3, 2014
Expiration date: 5/2/2014

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. Justin Leyda

                                    Liberty South Development, LLC

                                    4016 Townsfair Way, Suite 201

                                    Columbus, Ohio 43219


LOCATION:  As depicted on the attached Sheet 1 of 3, the proposed project would be located on approximately 37 acres of land within the watershed of an unnamed tributary of Gregory Creek (Latitude 39.368816, Longitude -84.371398), at 7451 Liberty Way south of Liberty Way Road, bisected by Tylers Place Boulevard and west of I-75 in West Chester, Butler County, Ohio.  The project is bounded by residential properties to the south and west, I-75 to the east, and Liberty Way to the north.  Gregory Creek is a perennial relatively permanent water and an indirect tributary to the Great Miami River, a traditional navigable water of the United States.    

DESCRIPTION OF PROPOSED WORK:  The applicant has requested DA authorization to discharge dredged and/or fill material into approximately 1.35 acres of jurisdictional wetlands, 1.07 acres of open water pond and 267 linear feet (0.03 acre) of intermittent stream in association with the construction of a 37 acre mixed-use, planned unit development known as the Liberty South Development Project.  Table 1 attached to this Public Notice lists each individual discharge of dredged and/or fill material into waters of the United States.  The proposed development would consist of 169,500 square feet of commercial retail space, 26,700 square feet and 50 units of mixed-use commercial retail and residential space, 30 units of residential space, 21,000 square feet of restaurant space, 34,500 square feet of mixed-use commercial retail and office space, and two 110-room hotels.  In addition, the applicant proposes to discharge dredged and/or fill material into 0.02 acre of isolated wetland, which is not subject to Section 404 of the Clean Water Act.  Sheet 2 of 3 depicts the overall proposed site plans, including the building footprint and attendant features (i.e. roads, parking lots, and access points).  Plans (Sheets 1 through 3) of the proposal are attached to this notice.

ALTERNATIVES ANALYSIS: A total of approximately 1.35 acres of jurisdictional wetlands, 1.8 acres of open water pond and 267 linear feet of intermittent stream 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 1.35 acres of jurisdictional wetlands, 1.8 acres of open water pond and 267 linear feet of intermittent stream were identified on the approximate 37 acre property.  The attached Sheet 3 of 3 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.  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 Butler County Stormwater District for stormwater discharges associated with construction activity.  The applicant proposes to install subsurface detention units as well as implement Phase II required post-construction water quality best management practices to help offset the expected water quality impacts associated with the proposed project.  The stormwater basins would be used for collecting discharged sediment associated with construction activities as well as collecting post-construction runoff volumes and peak flows from impervious surfaces after construction.  The basins would be designed with outlet structures that meet local flood control requirements and ensure all post construction runoff up to the water quality storm event (0.75 inches) would be detained and released within a period of 24-48 hours. 

The on-site Stream 1 would be enclosed via a pipe in order to maintain stream flows.  The pipe 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.  The applicant is also required to obtain an Earthmoving Permit from the Butler Soil and Water Conservation District and implement a storm water pollution prevention plan.  Some of the features of this plan include temporary and permanent seeding as soon as disturbed areas of the site are able to be stabilized and the use of structural best management practices such as gravel construction entrances, velocity dissipation devices with concentrated flow areas, sediment basins and temporary sediment traps to collect concentrated flow, silt fencing, mulch berms, and inlet drain protection.  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 losses of waters of the United States associated with the proposed development, the applicant proposes to purchase 2.1 acres of wetland mitigation credits, 400 linear feet of stream mitigation credits, and 2.0 acres of riparian buffer credits from a federally-approved mitigation bank.

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.  The fallow agricultural fields and woodlots within the project area were subjected to shovel test excavations.  The Phase I survey did not identify any new prehistoric or historic archaeological sites.  The proposed project would have no effect on historic properties listed on, eligible or potentially eligible for inclusion 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), 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 a combination of old field, scrub/shrub, and palustrine emergent wetlands.  Old field vegetation comprises the entire western portion of the study area and substantial portion of the study area located east of Tylers Place Boulevard.  Dominant vegetation within this vegetation assemblage consists of Amur Honeysuckle, Canadian Goldenrod, Yellow Sweet-Clover, and Fuller's Teasel.  Scrub/Shrub vegetation was identified within upland areas east of Wetland 1 and west of I-75.  Dominant vegetation within this vegetation assemblage consists of Bradford pear, Russian Olive, Amur Honeysuckle, and Allegheny Blackberry.  Three palustrine emergent wetlands were identified within the survey area.  Dominant species within this vegetation assemblage consists of Black Willow, Narrow-Leaf Cat-Tail, Cut Grass, Common Fox Sedge, Swamp Milkweed, and Blunt Spike-Rush.  Based on a field reconnaissance and habitat assessment completed on the project site by the applicant’s consultant, the trees existing on the property contain mean diameter heights ranging from four to eight inches with less than five percent greater than twenty-four inches.  Stream 1, an intermittent stream, flows south to north for approximately 267 linear feet onsite before flowing offsite under Liberty Way.  Dominant substrate predominantly includes gravel.  A stormwater detention basin is located west of Tyler’s Place Boulevard and north of Preserve Place.  Dominant substrate within the stormwater detention basin predominantly includes silt. 

Suitable habitat for the rayed bean mussel is not present on-site and the Corps has determined based on the applicant’s proposal to implement sediment and erosion control measures, the proposed project would have no effect on the rayed bean mussel.   The applicant proposes to perform tree clearing operations prior to April 1 and after September 30 to minimize effects on the Indiana bat and the northern long-eared bat.  The Corps has determined that the proposed project may affect, but would not likely adversely affect the Indiana bat or northern long-eared 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 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-2014-237-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 Liberty South

Mixed-Use, Planned Unit Development


Aquatic Resource Feature ID

Aquatic Resource Type

Area (acres) of Wetland or Open Water Impact

Linear Feet of Stream Impact

Cubic Yards of Dredged and/or Fill Material

Grade establishment and drainage relocation for the 110 unit hotel, multiple restaurant and/or retail pads and associated parking areas

Wetland 1

Palustrine Emergent Wetland; ORAM Score of 27; Category 1




Grade establishment and drainage relocation for hotel parking area

Wetland 2

Palustrine Emergent Wetland; ORAM Score of 28.5; Category 1




Grade establishment and drainage relocation for hotel parking area

Stream 1

Intermittent Stream; HHEI Score of 46; Class II




Grade establishment and drainage relocation for multiple retail pads, a office area, and associated parking area

SW 1







Table 2. Aquatic Resources at the Liberty South

Mixed-Use, Planned Unit Development Project Review Site

Aquatic Resource ID



Flow Regime or Cowardin Class

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

Jurisdictional or Isolated

Stream 1

39.36918, -84.37428


267 feet


Wetland 1

39.36855, -84.37110

Palustrine Emergent

1.31 acres


Wetland 2

39.36896, -84.37416

Palustrine Emergent

0.04 acre


Wetland 3

39.36848, -84.375415

Palustrine Emergent

0.02 acre


SW 1

39.36839, -84.37354


1.8 acres