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LRH 2014-33-MUS

Published Aug. 25, 2014
Expiration date: 9/24/2014

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. Kevin Cooperrider

                                    Shelly Materials, Inc.

                                    80 Park Drive

                                    Thornville, Ohio 43076


LOCATION:  As depicted on the attached Sheet 1 of 5, the proposed project would be located within the watershed of an unnamed tributary to the North Fork of the Licking River (Latitude 40.156212N, Longitude 82.414591W), east of Mount Vernon Road and west of Horns Hill Road, at Saint Louisville, in Licking County, Ohio.  The proposed discharges of dredged and/or fill material would take place within an unnamed tributary to the North Fork of the Licking River.  The North Fork of the Licking River is a direct tributary of the Muskingum River, a traditional navigable water of the United States.     

PROJECT HISTORY:  On February 3, 2006, this office authorized discharges of dredged and/or fill material into approximately 1,835 linear feet of stream under a Standard Permit in association with the construction of an aggregate (sand and gravel) mining operation.   Via a letter dated April 4, 2014, this office issued a preliminary jurisdictional determination for the location specified above and stated 6,944 linear feet of the on-site perennial stream would be evaluated as waters of the United States. 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge dredged and/or fill material into approximately 300 linear feet of perennial stream in association with the expansion  of the existing sand and gravel operation (see attached Sheets 2-5 of 5 of 5).  The existing operation would be expanded to the south and would consist of access roads, an existing processing plant site, two mining impoundments, a diversion channel, and a temporary diversion channel. 

A new mining impoundment, Mining Impoundment 1, would be constructed in the northwestern portion of the site, west of Stream 1. Topsoil would be excavated and hauled to create site barriers around the proposed active mining area. The subsoil/overburden would then be excavated, hauled and used as fill for slopes around the mining impoundment. Slopes would be graded and grass seeded to prevent erosion.  A diversion channel from the existing mining impoundment would be constructed on the northwestern portion of the site to divert flow from the existing mining impoundment to Mining Impoundment 1.

After approximately five years following the construction of Mining Impoundment 1, another mining impoundment, Mining Impoundment 2, would be constructed in the central portion of the Site, east and south of Stream 1.  Topsoil would be excavated and hauled to create site barriers around the proposed active mining area.  The subsoil/overburden would then be excavated, hauled and used as fill for slopes around the mining impoundment. Slopes would be graded and grass seeded to prevent erosion.  A temporary cut would result in the temporary discharge of dredged and/or fill material into 100 linear feet of Stream 1 in order to float the suction dredge to the eastern side of Stream 1 to Mining Impoundment 2.  The approximately 100 linear feet of stream would be restored to original grade approximately five days after the cut is made.  

Two access roads would be constructed and would result in the permanent discharge of fill material into 200 linear feet of perennial stream.  The access road to the northern boundary of the site would provide access to the site.  The second access road would be constructed to gain access between the proposed impoundments 1 and 2.  

Material would be extracted from Mining Impoundments 1 and 2 via suction dredge and pumped to the processing plant where material would be separated and stored in piles to be marketed.  Once mining has ceased, all slopes would be sloped towards the impoundments at a 3:1 slope, graded, grass seeded and effective drainage practices used.  Overburden from the mining operations would be placed in designated areas throughout the site.  Effluent from the mining operations would continue to be directed into the existing mining impoundment.  The plans (Sheets 1-5) for the proposed project are attached to this notice. 


ALTERNATIVES ANALYSIS:  A total of approximately 300 linear feet of perennial stream 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 6,944 linear feet of perennial stream is 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 6,644 linear feet (96%) of the on-site perennial stream.  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.  The applicant has obtained a National Pollutant Discharge Elimination System permit from the Ohio Environmental Protection Agency.  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:  The applicant has indicated the loss of waters of the United States associated with the proposed project would be offset by enhancing 200 linear feet of the North Fork of the Licking River adjacent to the existing mining impoundment.  Enhancement of the river would include planting woody vegetation within the riparian zone, stabilizing the banks, and installing in-stream habitat structures to improve overall aquatic resource functions  The mitigation site would be monitored for five years and would be protected in perpetuity via a real estate instrument.  Sheet 2 of 5 depicts the location of the proposed mitigation site.  In addition, the 100 linear feet of temporarily affected stream channel would be restored back to its pre-disturbance conditions and planted with native vegetation. 

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 has been consulted and it has been determined there are no properties currently listed on the National Register of Historic Places that would be indirectly or directly affected by the proposed work.  A Phase I Cultural Resources Management review was conducted for the project site.  One site was identified and evaluated as part of the individual permit review for the original project discussed above under “PROJECT HISTORY.”  This site was determined to be eligible for inclusion on the National Register of Historic Places and is preserved within a 3.479 acre easement required as part of the previously issued individual permit.  The applicant’s proposed activities would not be conducted within the protected easement area.  A Phase I archaeological survey was conducted within the proposed expansion area and identified two sites that may contain information making them eligible for inclusion in the National Register of Historic Places.  The applicant has agreed to avoid impacts to these potentially eligible sites.  We have determined the proposed project would have no effect on historic properties.  A copy of this public notice will be furnished to the Ohio 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) and the proposed endangered northern long-eared bat (Myotis septentrionalis).  The majority of the site consists of active agricultural and fallow fields with a small portion of the site consisting of an upland forested area.  As indicated above, one perennial stream is also present on-site. Trees within the forested area include American elm, black locust, black walnut, box elder, green ash, and American sycamore.  Surrounding land use in the general area consists of farmland, residential properties, and mining land.  One potential roost tree is located along the forested area. 

The applicant has agreed to conduct tree clearing operations prior to April 1 and after September 30 to minimize effects to 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.  This Public Notice serves as a request for concurrence from the United States Fish and Wildlife Service 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 Teresa Spagna of the North Branch at teresa.d.spagna@usace.army.mil or at the following address:


                                                United States Army Corps of Engineers

                                                ATTN: CELRH-RD-N

                                                Public Notice No. LRH-2014-33-MUS

                                                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.