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LRH 2011-646-OHR

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 Permit under the provisions of Section 10 of the Rivers and Harbors Act of 1899 and 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 to act on Section 401 Water Quality Certification for the following application.  

APPLICANT:  Ohio Department of Transportation (ODOT)

1980 West Broad Street, Mail Stop 4170

Columbus, Ohio 43223


LOCATION:  The applicant has submitted a proposal for construction of Phase 2 and Phase 3 of the Portsmouth Bypass Project in Scioto County, Ohio.  Phase 2 is located in Valley, Jefferson, and Madison Townships; Phase 3 is located in Harrison and Porter Townships.  Phase 2 would be 7.4 miles of new roadway to connect United States (U.S.) Route 23 just north of Lucasville to the previously authorized Phase 1 Lucasville-Minford Road interchange.  Phase 3 would be 5.6 miles of new roadway to link the previously authorized Phase 1 Shumway Hollow Road interchange to U.S. 52 near Wheelersburg, Ohio.

Termini of the proposed Phase 2 alignment are as follows:

North terminus:   Latitude 38.89644 North and Longitude 83.00214 West

South terminus:   Latitude 38.86338 North and Longitude 82.89588 West

Termini of the proposed Phase 3 alignment are as follows:

North terminus:   Latitude 38.83645 North and Longitude 82.85430 West

South terminus:   Latitude 38.73905 North and Longitude 82.86663 West

Waters of the U.S. within the Phase 2 project area include 66 direct and indirect tributaries to the Scioto River or Little Scioto River, both of which are Section 10 and traditional navigable waters (TNWs) for 175 miles and 1.7 miles respectively, 17 jurisdictional wetlands, and one jurisdictional ditch.  Waters of the U.S. within the Phase 3 project area include the Little Scioto River, 59 direct and indirect tributaries to the Little Scioto River or Ohio River (TNWs), 20 jurisdictional wetlands, two jurisdictional ditches, and two jurisdictional ponds.

DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge fill material into waters of the U.S. to construct, over a period of five years, approximately thirteen miles of limited access highway on a new alignment.  The applicant has indicated discharges of fill material into 126 streams, 37 wetlands, three ditches, and two ponds are necessary to achieve the desired elevations for the highway, to construct bridges, to install new culverts at stream crossings, and to replace culverts where appropriate.  The Corps anticipates the proposal consists of multiple single and completed projects.  The Corps intends to review the various single and complete projects under one permit evaluation.

Under their Preferred Alternative, the applicant proposes to permanently discharge fill material into a total of 6,039 linear feet (lf) of perennial streams, 33,003 lf of intermittent streams, 28,493 lf of ephemeral streams, 6.54 acres (ac) of jurisdictional wetlands, 0.07-ac of jurisdictional ditches, and 1.04 ac of jurisdictional ponds.  In addition, the applicant proposes temporary discharges of fill material into 1,400 lf of streams for construction access and dewatering.

The typical 4-lane roadway section would consist of two lanes in each direction that would be 12 feet wide and include a 22-foot wide median with concrete barrier and 10-foot wide shoulders.  Phases 2 and 3 would include the construction of 9 bridges, 3 full interchanges, 1 partial interchange, and local road improvements.  New bridges are proposed at U.S. 23, Flatwood-Fallen Timber Road, Morris Lane Blue Run Road, Blue Run Road, and Lucasville-Minford Road, SR 335 at the Little Scioto River, the CSX Railroad near Slocum Avenue, SR 140, and U.S. 52.  Full interchanges are proposed at U.S. 23, Lucasville-Minford Road, and U.S. 52.  A partial interchange is proposed at SR 140.  See the attached Tables 1-3 for summaries of proposed discharges.  Maps of the proposal are also attached to this public notice.

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA):  The Federal Highway Administration (FHWA) is the lead Federal agency for this project.  On August 10, 2005 the FHWA approved the SR 823, Portsmouth Bypass Project, Final Environmental Impact Statement (EIS).  The Corps procedures for implementing NEPA (30 CFR 230) allows the Corps, Huntington District Commander to adopt another agency’s NEPA document to support Corps’ decisions if it that document is found to be technically and procedurally adequate per Corps regulations.  The Corps has reviewed FHWA’s EIS.  To the extent possible, the Corps will either: adopt the EIS, tier off the EIS, or prepare a supplemental EA to fulfill any NEPA responsibilities associated with our permit action.

ALTERNATIVES ANALYSIS: The various single and complete projects do not require access to or siting within special aquatic sites to fulfill their basic purpose and are considered non-water dependent activities.  The Section 404(b)(1) Guidelines state 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 discharge of fill material.  The applicant has submitted an alternatives analysis that is currently under review.

The alternatives described in the Final EIS include a Preferred Alternative, a Minimal Degradation Alternative, and a Non-Degradation Alternative.   The applicant’s Preferred Alternative described above is a modified version of the “Hill Alignment” from the EIS.  The discharge of fill material into waters of the U.S. under the Minimal Degradation Alternative would be reduced from the Preferred Alternative by avoiding approximately 23,908 lf of streams and 2.56 ac of wetlands.  This would be accomplished by constructing 25 additional bridges at various locations along the proposed mainline and interchange ramps.  The Non-Degradation Alternative is a “no build” alternative.  Under the Non-Degradation Alternative, no discharge of fill material into waters of the U.S. would occur.  The applicant has indicated the Non-Degradation Alternative would not meet the project purpose.

A complete copy of the alternatives analysis can be reviewed, by appointment, at the location described at the beginning of this Public Notice.  No permit would 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:  If a project area includes waters of the U.S., consideration must be given to avoidance of waters of the U.S.  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 approximately 5,459 lf of perennial streams, 35,020 lf of intermittent streams, 29,590 lf of ephemeral streams, 10.55 ac of wetlands, 0.07-ac of jurisdictional ditches, and 1.14 ac of jurisdictional ponds subject to Corps jurisdiction exist within the alignments for Phases 2 and 3.  According to the applicant, alternatives were considered as described above, and avoidance and minimization efforts were incorporated into this proposal.

To the extent practicable, the applicant’s Preferred Alternative includes the use of oversized culverts, adjustments in the alignment to allow for perpendicular stream crossings, and avoidance of lateral stream encroachments.  In addition, the proposed median width was reduced from 60 feet to 22 feet to minimize the overall project footprint.  To avoid the discharge of fill material into the Little Scioto River, a high quality resource, the piers for the proposed bridge over the river were relocated above the ordinary high water mark of this high quality resource.

If a permit were issued, avoidance of high quality aquatic resources would be accomplished through the designation of no-build zones within the proposed construction limits.  Minimization of adverse effects to aquatic resources would also be achieved through adherence to the applicant’s Construction and Material Specifications and the implementation of construction Best Management Practices for sediment and erosion control.  Such measures may include the installation of silt barriers, silt fence, ditch checks, and temporary sediment basins or other retention structures appropriately placed prior to construction.

COMPENSATORY MITIGATION PLAN:  To compensate for the discharge of fill material into 66,219 lf of streams within the Scioto River, Little Scioto River and Ohio River watersheds, the applicant proposes to preserve 36,029 lf of high quality headwater streams and riparian buffers in the Lower Scioto River (05060002) watershed at the General Electric Test Operations Facility in the Village of Peebles, Adams County, Ohio.  The Ohio Department of Natural Resources would be the third party easement holder for long-term protection.

The applicant is also exploring an opportunity, with a qualified third party, to secure additional stream mitigation credit within the Lower Scioto River and Little Scioto-Tygart (05090103) watersheds.  ODOT would provide a minimum of 65,296 lf of additional stream mitigation credit, of which 70% (45,707 lf) would be stream preservation and 30% (19,589 lf) would be stream restoration.

To compensate for the discharge of fill material into 6.54 ac of wetlands, the applicant proposes to preserve 2.52 ac of high quality wetlands in Green Township, Ross County, Ohio.  The preservation wetlands are located in the Lower Scioto River (05060002) watershed on a 51-acre tract identified as the Rupiper Property, which would be protected in perpetuity through an agreement with the Ross County Park District.  In addition, the applicant proposes to purchase a minimum of 11.44 ac of wetland mitigation credits at the Red Stone Farm Wetland Mitigation Bank in the adjacent Ohio Brush-White Oak (05090201) watershed in Perry Township, Pike County, Ohio. 

The applicant’s proposed compensatory mitigation plan is open to comment and is subject to change based on comments received. After review of all submitted information, the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit.


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 AND CULTURAL RESOURCES:  FHWA is the lead Federal agency for this project and is responsible for compliance with the Section 106 of the National Historic Preservation Act.  The applicant completed reports titled Phase I Archaeological Reconnaissance Survey for the Proposed Portsmouth Bypass (SCI-823-0.00 [PID 19415] in Porter, Harrison, Madison, Jefferson and Valley Townships, Scioto County, Ohio and Phase II History/Architecture Evaluation of 532 Fairground Road (SCI-600-03) for the Proposed Portsmouth Bypass (SCI-823-0.00; PID 19415) in Porter, Harrison, Madison, Jefferson and Valley Townships, Scioto County, Ohio.  The Ohio State Historic Preservation Office concurred with the findings of these reports on October 28, 2004 and December 3, 2004, respectively.  The applicant completed additional field work on March 14, 2006 in response to adjustments to the proposed construction limits.  No new archaeological sites were identified.

The applicant completed a Phase I History/Architecture Reevaluation Survey  for Phases 2 & 3 of the SCI-823 Portsmouth Bypass project (SCI-823-0.00; PID: 19415) in Harrison, Jefferson, Madison, Porter, and Valley Townships, Scioto County, Ohio, dated March 21, 2013.  The applicant determined, on behalf of FHWA, the subject undertaking would have no adverse effect on any historic property.  In support of our independent permit decision, the Corps intends to rely upon the information collected and the consultation performed on behalf of FHWA regarding the effects to historic properties.  A copy of this Public Notice will be sent to the Ohio State Historic Preservation Office for their review.  Comments concerning archaeological sensitivity of a project area should be based upon collected data.

THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the following endangered (E), proposed endangered (PE), or threatened (T) species:

·       Fanshell mussel (Cyprogenia stegaria) (E)

·       Pink mucket pearly mussel (Lampsilis abrupta) (E)

·       Running buffalo clover (Trifolium stoloniferum) (E)

·       Clubshell mussel (Pleurobema clava) (E)

·       Sheepnose mussel (Plethobasus cyphyus) (E)

·       Snuffbox mussel (Epioblasma triquetra) (E)

·       Rayed bean mussel (Villosa fabalis) (E)

·       Indiana bat (Myotis sodalis) (E)

·       Northern riffleshell mussel (Epioblasma torulosa rangiana) (E)

·       Northern long-eared bat (Myotis septentrionalis) (PE)

·       Small whorled pogonia (Isotria medeoloides) (T)

·       Virginia spiraea (Spiraea virginiana) (T)


FHWA is responsible for compliance with Section 7 of the Endangered Species Act.  The applicant determined the project may affect, but is not likely to adversely affect the Indiana bat, rayed bean mussel, running buffalo clover, small whorled pogonia, and Virginia spiraea.  By letters dated March 12, 2012 and September 12, 2013, United States Fish and Wildlife Service (USFWS) concurred with these determinations.  The applicant has agreed to conduct tree cutting during the Indiana bat’s hibernation period (prior to April 1 and after September 30).  The applicant has determined the project would not affect any other federally listed mussels or their habitats.  The applicant has initiated a Biological Assessment for the Northern long-eared bat, which will be coordinated with the USFWS upon completion. 

In support of our independent permit decision, the Corps intends to rely upon the information collected by or on behalf of the FHWA, and consultation performed by or on behalf of FHWA, regarding the effects to threatened or endangered species.

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 which 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.  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 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.  The Corps reviewed the FHWA EIS.  To the extent possible, the Corps will either: adopt the EIS, tier off the EIS, or prepare a supplemental EA to fulfill any NEPA responsibilities associated with our permit action.  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. 

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, Huntington District

ATTN: CELRH-RD-S-OT Public Notice No. LRH-2011-00646-OHR

Building 10 / Section 10

PO Box 3990

Columbus, OH 43218-3990


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, may be 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 Brett Latta of the South/Transportation Branch, at (614) 692-4654, by mail at the above address, or by email at Brett.C.Latta@usace.army.mil.