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LRH 2013-744-GMR

Published June 9, 2014
Expiration date: 7/8/2014

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. John Niehaus

                                    Legendary Ridge Developers, LLC

                                    5175 Michael Anthony Lane

                                    Cincinnati, Ohio 45247


LOCATION:  As depicted on the attached Sheet 1 of 5, the proposed project would be located within the watershed of Jordan Creek (Latitude 39.1675N, Longitude 84.7201N), on the north side of Legendary Ridge Lane in Miami Township, Hamilton County, Ohio.  The proposed discharges of dredged and/or fill material would take place within eight ephemeral streams and two intermittent streams.  These streams are tributaries of Jordan Creek, which is a tributary of the Great Miami River, a traditional navigable water of the United States.     

PROJECT HISTORY:  The subject 56 acre property was part of a larger property that was permitted for development by the Corps’ Louisville District.  The original permittee is not the same organization as the applicant.  The DA permit authorized the discharge of dredged and/or fill material into 170 linear feet of intermittent stream for the construction of a stormwater detention basin and 290 linear feet of ephemeral stream for the construction of a road crossing. 


DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge 402 cubic yards of dredged and/or fill material into approximately 3,390 linear feet (0.18 acre) of eight ephemeral streams and 250 linear feet (0.04 acre) of two intermittent streams in association with the construction of the Legendary Ridge Residential Development Project (see attached Table 1 and Sheets 2-5 of 5).  The proposed development would consist of 97 single family homes with associated roadways, utilities, and stormwater management systems.  The proposed impacted sections of the ephemeral and intermittent streams are on the north, east and south sides of the property.  These ephemeral and intermittent streams would be affected by the discharge of dredged and/or fill material associated with the initial grading to prepare the site for the construction of homes, roadways, and the other attendant features.  A 150 foot long 18 inch diameter concrete pipe would be installed permanently in Stream A just upstream from Stream A-5 and downstream from Stream A-6.  Fill material would be discharged over the pipe.  This area would be used as a construction-phase stream crossing to move cut/fill material between the ridgetops on the property.  Once earthmoving is completed, the pipe and the overlying fill material would be used to support a post-construction aerial sanitary sewer crossing.  The plans (Sheets 1-5) for the proposed project are attached to this notice.


ALTERNATIVES ANALYSIS:  A total of approximately 3,390 linear feet (0.18 acre) of eight ephemeral streams (Streams A-4, A-5, A-5-A, A-6, A-7, A-7-A, A-8, and A-9) and 250 linear feet (0.04 acre) of two intermittent streams (Streams A and A-7) would be filled as a result of the proposal.  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 office determines practicable upland alternatives 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.  Approximately 5,560 linear feet of ephemeral streams and 3,195 linear feet of intermittent streams are located within the proposed project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project.  The applicant’s project would avoid 39% of the on-site ephemeral streams and 92% of the on-site intermittent streams.  Stormwater management planning would incorporate best management practices and water pollution controls necessary to maintain compliance with the Federal Water Pollution Control Act and Ohio Water Pollution Control Act.  Construction activities would be performed during low flow stream conditions.  Stormwater management and erosion control systems would be implemented during construction, including silt fences, mulch and/or earthen berms, temporary seeding, hay bales, inlet protection, temporary collection basins, diversion ditches, and construction entrances.  Grassy swales and rip rap-lined ditches would also be established on the project site to serve as the development’s post-construction stormwater management system.  Stormwater generated during the construction phases of the proposed project would be directed to a series of temporary on-site sedimentation basins.  The previously constructed stormwater detention basin on the adjacent site would be used to manage stormwater for the proposed development.  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 project, the applicant proposes to establish 2,600 linear feet of grassy swales and rip rap-lined ditches on-site (See Sheets 4 and 5 of 5) and to preserve 2,170 linear feet of the avoided ephemeral streams (A-1, A-2, A-3, A-8 and A-9) and 1,975 linear feet of the avoided intermittent streams (A, A-5, A-8, and A-9) (See Sheets 3-5 of 5). 

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 there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  The majority of the project area has been used as agricultural land, except for the lower slopes along Stream A in the northern portion of the property.  Cleared areas in the southern corner of the property were used as borrow/fill areas during the earlier development of the Legendary Ridge Lane.  To the east, the property is bordered by residential properties along Bridgetown Road.  To the west, the property is bordered by residential properties along Legendary Ridge Lane.  To the north, the property is bordered by residential properties along St. Cloud Way and Normandy Drive.  To the south, the property is bordered by residential properties along Legendary Ridge Lane and Bridgetown Road.  The project area consists of northwest to southeast oriented ridgetops and wooded hillsides that slope to the north and west toward the main intermittent stream (Stream A).  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), endangered running buffalo clover (Trifolium stoloniferum), endangered fanshell mussel (Cyprogenia stegaria), endangered pink mucket pearly mussel (Lampsilis abrupta), endangered rayed bean mussel (Villosa fabalis), endangered sheepnose mussel (Plethobasus cpyhyus), and endangered snuffbox mussel (Epioblasma ).  The proposed project would not directly impact any of the habitat types for the aforementioned mussels.  As indicated above, the applicant would use best management practices and implement a storm water pollution prevention plan for the site.  We have determined the proposed project would have no effect on the aforementioned mussels. 

The majority of the 56-acre property is undeveloped.  Several areas of the property had been previously cleared and/or graded in association with the residential development project authorized by the Corps’ Louisville District in 2004.  A total of 44 acres of the property are wooded.  Several large dead/dying trees with peeling bark are present on the property within the middle, lower and upper slopes.  Approximately 29 acres of the total wooded area would be removed in preparation for the development.  Approximately 16 acres of the total wooded area would remain undisturbed.  The majority of the trees that are potential Indiana bat nesting and roosting habitat are located within the 16 acres that would not be disturbed by the proposed project.  The applicant has agreed to conduct tree clearing operations prior to April 1 and after September 1, as recommended by the United States Fish and Wildlife Service (USFWS), to minimize effects on the Indiana bat and the northern long-eared bat.  We have determined the proposed project may affect, but would not likely adversely affect either the Indiana bat or the northern long-eared bat. 

The upper slopes and ridgetops on the property have a dense undergrowth of amur honeysuckle (Lonicera mackii), or are cleared, and are not potential habitat for running buffalo clover (Trifolium stoloniferum).  The lower and middle slopes on the property contain potential running buffalo clover habitat.  A running buffalo clover survey was conducted on the property during the month of May.  The survey revealed no running buffalo clover is present within the proposed project area.  The majority of the areas where suitable running buffalo clover habitat is present is located in the 15 acres of forested terrain that would be set aside as greenspace (see Sheet 3 of 5).  We have determined the proposed project may affect, but would not likely adversely affect the running buffalo clover. 


This Public Notice serves as a request for concurrence from the USFWS with the aforementioned effect determinations and 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 the protection and the 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, the Federal, state, and local agencies and officials, the 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-2013-744-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.