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LRH 0-52798-WAL

Published May 16, 2014
Expiration date: 6/16/2014

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 the Section 401 Water Quality Certification for the following application.

 

APPLICANT:   Mr. Jeffrey Kendra

                        The Scotts Company (Scotts)

                        3875 South Elyria Road

                        Shreve, Ohio 44676

 

LOCATION:  As depicted on the attached Sheet 1 of 8, the project site is located in Kiser Ditch, unnamed tributaries to Kiser Ditch and adjacent wetlands, within a 161.3-acre site located at 3875 South Elyria Road, in Shreve Township, Wayne County, Ohio.  Kiser Ditch is a perennial stream that flows into Muddy Fork of Lake Fork of the Mohican River, a traditional navigable water of the United States.

 

PROJECT HISTORY:  On July 6, 1990, the Corps issued a 20-year Department of the Army (DA) permit to O.M. Scott and Sons for the discharge of dredged and/or fill material into wetlands associated with the harvesting and production of organic peat for commercial use.  The original Shreve Facility project site consisted of a 181-acre wetland system and a 40-acre upland processing plant and storage area.  The original project was authorized to discharge dredged and/or fill material into a wetland system adjacent to Lake Fork of the Mohican River, approximately 2.5 miles above the mouth of Kiser Ditch.  Parceled into harvest cells, the peat harvesting activity was proposed to occur in 166 acres of the total 181-acre wetland system.  As compensatory mitigation, O.M. Scott and Sons was required to restore 17% of the harvested wetlands.  Due to operational delays associated with frequent flooding in the Kiser Ditch river valley, O.M. Scott and Sons were unable to complete the peat harvesting operation within the permitted 20-year timeframe.  Mitigation for the completed authorized impacts was fulfilled in accordance with the July 6, 1990 DA permit.  On May 29, 2013, the Corps issued Scotts a DA Individual Permit to discharge dredged and fill material into waters of the United States, including 24.9 acres of wetland, 4.63 acres of deep water habitat and 160 linear feet (0.03 acre) of perennial stream in conjunction with the expansion of peat harvesting and production activities at the existing Shreve Facility.  See Tables 1, 2 and 3 below for a list of the authorized discharges of dredged and/or fill material into waters of the United States. 

Regulated activities within 24.9 acres of wetland include the:  discharge of dredged material associated with the excavation and in-water stockpiling of 237,175 cubic yards of native soil for the eventual processing; discharge of 32,300 cubic yards of native soil for the wetland restoration; discharge of 6,900 cubic yards of native soil for the access road construction; and discharge of 325 cubic yards of clean rock for the berm cuts.

A total of 4.63 acres of open water would be affected by the discharge of dredged and fill material.  Regulated activities within open water habitat include:  discharge of dredged material associated with the excavation of 30,100 cubic yards of the native soil for the eventual processing; discharge of 2,900 cubic yards of native soil to raise the bottom elevations; and discharge of 225 cubic yards of native soil for the access road construction.

A total of 160 linear feet of stream was authorized to be affected by the discharge of fill material.  Regulated activities within 25 linear feet of Stream E/B include the temporary discharge of 60 cubic yards of fill material along with two 72 inch concrete culverts to construct a temporary crossing during the soil excavation operations.  Regulated activities within 135 linear feet of the Kiser Ditch include the construction of three berm cuts to allow for the lowering of the water levels within the wetlands. 

The previously authorized work would be conducted in three phases in the Cells B, E, and I and would be sequenced to allow the construction of mitigation areas concurrent with the harvesting operation (see Sheet 2 of 8).  The harvesting of peat from each cell requires the excavation of an opening in the eastern berm, along the Kiser Ditch, to promote the release of water from the cell.  Peat within the actively mined cell would be disked, dewatered and stockpiled within the wetland for a period of 24 hours or less to allow drainage.  The stockpiled peat would then be hauled to the existing upland processing plant to be stockpiled and processed for sale.  This DA permit will expire on December 31, 2033.  Harvesting operations began at the site in September of 2013.  All harvesting was conducted in the Cell I (See Sheet 3 of 8) and resulted in the discharge of dredged and/or fill material into 4.03 acres of the overall 24.9 acre previously authorized wetland impact. 

 

DESCRIPTION OF PROPOSED WORK:  The permittee has requested the DA permit be modified to reflect changes to the soil harvesting operation.  These proposed changes and their associated discharges of dredged and/or fill material into waters of the United States are described below and are shown on the Tables 1, 2 and 3 below and the attached Sheets 2 and 4 through 8. 

 

Proposed Wetland Berm (Cell I) and Culvert (Cell K) – The permittee proposes to construct a berm across the existing open water area of Cell I, west of the existing access road.  This is within an area that is approved for wetland mitigation in the May 29, 2013 DA permit.  The purpose of the berm is to reduce the amount of water entering the area during seasonal flooding of the Kiser Ditch.  This would reduce the total area that requires dewatering for the soil harvesting operations, and would provide better working conditions for the fill placement and plantings associated with the approved wetland mitigation in this area.  The berm would be constructed on the west side of the existing access road on its northern end, and would continue west from the access road joining to an existing wetland area.  The berm would be constructed of clay soils excavated from Cell I, and would be approximately 200 feet long, 10 feet wide (at the top), and 6 feet high.  The top of the berm would be set at the approximate elevation of 944, which is the elevation of much of the existing wetland area on the property. 

A 12-inch diameter culvert would be installed at the southern end of the open water area and would be trenched across the existing access road to allow surface water to drain to the open water area east of the existing access road, which is approximately two feet lower in elevation.  The berm and culvert details are included on the attached Sheets 4, 5 and 6 of 8.  

The permittee has indicated the berm and culvert is proposed to be installed in 2015.  Since the top of the berm is at the elevation of much of the existing wetland area on the property, it would be considered a permanent feature and would be included in the wetland mitigation acreage required for this project.  The applicant has indicated the culvert would remain in place through 2016 when soil harvesting and wetland mitigation work are proposed to be completed in the Cells I and K.

Construction of the berm and the culvert would temporarily impact an additional 0.11 acre of wetland area (Wetland 2) that was not authorized under the May 29, 2013 DA permit.  All other disturbance would be within the work limits of the existing validated DA permit.  Wetland mitigation would occur at 1.5 to 1 ratio, and would be accomplished at the Corps-approved wetland mitigation area along the east side of the existing access road (see Sheet 3 of 8).

 

Proposed Kiser Ditch Cut (Cell K) – As shown on the attached Sheet 3 of 8, the permittee proposes to construct a new berm cut on the Kiser Ditch at the lower end of Cell K.  The purpose of the berm cut is to reduce the dewatering effort required for the soil harvesting operations, and to improve long-term drainage to reduce the duration of inundation in this area occurring as a result of the seasonal flooding of the Kiser Ditch.  This is predicted to benefit the future wetland mitigation efforts in this area by providing better conditions for the establishment of rooted vegetation.  It is anticipated construction of the new berm cut would take place in 2015.  A berm cut detail is provided in the attached Sheet 7 of 8.  The proposed berm cut would be constructed with the same methods authorized in the May 29, 2013 DA permit for the three upstream berm cuts.  Construction of the new berm cut would result in the discharge of dredged and/or fill material into approximately 0.3 acre of wetland (Wetland 2) and 45 linear feet (0.01 acre) of the Kiser Ditch that was not authorized in the May 29, 2013 DA permit.  Wetland mitigation would occur at the approved wetland mitigation area along the east side of the existing access road (see attached Sheet 3 of 8).  An additional stream monitoring location (SP-5) would be located on the Kiser Ditch at the location of the new berm cut. 

Proposed Additional Peat Harvest/Clay Borrow and Push Access (Cells I and K) – As shown on the attached Sheet 3 of 8, the permittee proposes to harvest the peat and clay from the open water portions of Cells I and K that were partially harvested under the 1990 DA permit.  Work in this open water area was not authorized in the May 29, 2013 DA permit because the permittee had assumed that all peat had been excavated from this area.  During the peat harvesting operations in 2013, the permittee determined approximately 47,200 cubic yards of usable material was still present in approximately 8.2 acres of this open water area.  Once the site is dewatered and the remaining peat is removed, the permittee proposes to strip clay from this area (8.2 acres) and the remaining open water portion of the Cell K (18.2 acres) and use that material to fill the approved wetland mitigation area to the east and west of the existing access road to desired elevations.  It is expected approximately 53,240 cubic yards of clay would be excavated and placed within the wetland mitigation area to reach desired elevations.  This would be conducted in lieu of trucking soil material from the Elser parcel on the western edge of the property.

The permittee proposes to cut an approximate 50-foot wide notch in the existing access road, so soil can be pushed from the clay borrow area into the wetland mitigation area.  The new push access would temporarily discharge dredged and/or fill material into 0.05 acre of wetland area that was not authorized in the May 29, 2013 DA permit.  Topsoil would be preserved during the soil harvesting activities, and then it would be placed at a depth of no less than six inches over the clay fill to provide suitable conditions for the establishment of rooted vegetation.  Although the clay harvesting would lower bottom elevations in existing open water areas, it would not result in a loss or change of aquatic habitat type other than the 0.7 acre of open water area that is proposed to be filled to fulfill the wetland mitigation for wetland impacts associated with this permit modification request. 

The permittee has indicated the additional peat and clay harvesting from the Cells I and K would begin in 2015 and would continue when the soil harvesting and the wetland mitigation work have been completed in the Cells I and K. 

The plans (Sheets 1 through 8) for the proposed project are attached to this notice.

 

ALTERNATIVES ANALYSIS: A total of approximately 0.46 acre of jurisdictional wetland, 27.1 acres of open water habitat and 45 linear feet of perennial stream would be filled as a result of the proposed modifications.  The project requires siting within the wetlands to fulfill its basic purpose and is considered a water dependent activity.  No permit will be issued until our office determines that other practicable alternatives, with fewer impacts on the aquatic environment, are not available to achieve the overall project purpose based upon the applicant’s alternative analysis. 

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, then the impacts must be minimized.  A total of 88.03 acres of wetlands, 10,725 linear feet (6.34 acres) of perennial streams and 39.53 acres of deep water habitat, subject to Section 404 Clean Water Act jurisdiction, were identified on the project site.  The applicant has undertaken numerous revisions in an effort to minimize the footprint of the project.  Initially, under the previous 2013 Corps permit review, the applicant proposed to discharge dredged and fill material into 47.1 acres of wetlands.  Scotts maximized the excavation of peat where it occurs at its greatest depth (generally 7-14 feet) while avoiding those wetland areas where peat is shallow (less than 7 feet).  By focusing the peat harvesting operation in locations where peat is the deepest, Scotts minimized their impact footprint on-site.  The modified development plan has been designed to avoid discharges of dredged or fill material into approximately 71% (62.67 acres) of wetlands, 98.1% (10,525 linear feet) of streams and 17.7% (7 acres) of open water habitat present on the project site.  These avoided stream and wetlands and their surrounding riparian and/or upland buffer areas would be preserved as part of the applicant’s compensatory mitigation plan. 

 

COMPENSATORY MITIGATION PLAN:  To offset the loss of 0.46 acre of Category 2, non-forested wetland associated with the proposed modifications, the permittee proposes to restore 0.7 acre of wetland by discharging additional clay fill and topsoil to match the elevations of the previously approved wetland mitigation areas along the east side of the existing access road (see Sheet 3 of 8). 

 

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 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 modifications.  A Phase I archaeological survey was performed for the subject property, where the previously authorized and proposed activities would be conducted.  Based upon our review of the survey, the on-site investigation failed to identify any cultural deposits.  The Corps has determined the proposed project would have no effect on historic properties 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 threatened eastern prairie fringe orchid (Platanthera leucophaea).  The Corps has consulted the most recently available information and information provided by the applicant to make an effect determination. 

Although the project site contains stands of mature trees within the river valley, including one tree exhibiting the characteristics of suitable habitat, no trees are proposed to be removed during soil excavation activities.  Therefore, we have determined the proposed modifications would have no effect on the Indiana bat or the northern long-eared bat.

The eastern prairie fringed orchid is found in wet prairies, sedge meadows, and moist roadside ditches.  The proposed project is composed of emergent vegetation that may be suitable habitat for the eastern prairie fringed orchid, and all townships in Wayne County are considered to be sensitive for the orchid.  However, the project area is dominated by Phalaris, an invasive species that tends to form monotypic stands.  Due to the low quality of the wetlands on-site and previous disturbance in the project area, the Corps has determined that the proposed modifications would have no effect on the eastern prairie fringed orchid.

Based on this information, the proposed modifications are 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-0-52798-WAL

                                                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. Previously Authorized and Proposed

Discharges of Dredged and/or Fill Material into Wetlands

 at the Scott Company’s Shreve Facility

Location

 Acreage

Peat/Clay extraction (cubic yards)

Fill Material Discharged

(cubic yards)

Previously Authorized (PA) or Modification (M)

Cell I excavation (northern portion)

5.7

54,900

*

PA

Cell I access road

0.1

0

675

PA

Cell I berm cut and stabilization

0.3

215

105

PA

Cell B excavation

5.5

63,800

*

PA

Cell B access road

2.6

325

3,845 clay

1,925 clean rock

PA

Cell B berm cut and stabilization

0.3

225

110

PA

Cell E excavation

9.3

116,200

*

PA

Cell E access road

0.8

1,290

455

PA

Cell E berm cut and stabilization

0.3

220

110

PA

Cell I Wetland Berm

0.03

65

M

Cell I Push Access

0.05

100

100

M

Cell K Temporary Culvert

0.08

25

25

M

Cell K Kiser Ditch Berm Cut

0.30

220

110

M

TOTAL (Previously Authorized)

24.9

237,175

7,225

 

TOTAL (Modifications)

0.46

345

300

 

TOTAL (Previously Authorized/Modifications)

25.36

237,520

7,525

 

 * The excavation operations would result in the redistribution of topsoil in the excavated areas. This redistribution of topsoil constitutes a redeposit of dredged (excavated) material into waters of the United States and is subject to regulation under Section 404 of the Clean Water Act. 

 


  

Table 2. Previously Authorized and Proposed

Discharges of Dredged Material into Open Water Habitat

at the Scott Company’s Shreve Facility

Location

Acreage

Peat/Clay extraction

(cubic yards)

Dredged Material Discharged

(cubic yards)

Previously Authorized (PA) or Modification (M)

Cell I excavation (northern portion)

1.6

2,600

*

PA

Cell B excavation

0.5

6,500

*

PA

Cell E excavation

2.5

21,000

*

PA

Cell I access road

0.03

0

225

PA

Cell I Peat & Clay Harvest

6.8

58,310

M

Cell K Peat & Clay Harvest

19.6

42,130

M

Cell I Additional Wetland Mitigation

0.2

29,940

970

PA

M

Cell K Additional Wetland Mitigation

0.5

20,390

1,940

PA

M

TOTAL (Previously Authorized)

4.63

30,100

50,555

 

TOTAL (Modifications)

27.1

100,440

 

2,910

 

TOTAL (Previously Authorized/Modifications)

31.73

130,540

53,465

 

 * The excavation operations would result in the redistribution of topsoil in the excavated areas.  This redistribution of topsoil constitutes a redeposit of dredged (excavated) material into waters of the United States and is subject to regulation under Section 404 of the Clean Water Act. 

 


 

Table 3. Previously Authorized and Proposed

Discharges of Dredged and/or Fill Material into Streams

 at the Scott Company’s Shreve Facility

Stream

Impact 

Length / Area

Fill Discharged (cubic yards)

Previously Authorized (PA) or Modification (M)

Ditch E/B (temporary crossing)

25 ft / 0.01 acre

60

PA

Kiser Ditch (three berm cuts)

135 ft / 0.02 acre

35

PA

Kiser Ditch Permanent Berm Cut (Cell K)

45 ft / 0.01 acre

12

M

TOTAL (Previously Authorized)

160 ft / 0.03 acre

95

 

TOTAL (Modifications)

45 ft / 0.01 acre

12

 

TOTAL (Previously Authorized/Modifications)

205 ft / 0.04 acre

107