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LRH 2010-930-MUS

Published Oct. 29, 2014
Expiration date: 11/27/2014

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. Claude W. Imler

                                    Sergeant Stone, Inc.

                                    Post Office Box 2086

                                    Zanesville, Ohio 43702-2086


LOCATION:  The proposed project is bisected by State Route 555 and is located within the watershed of Bennett Run (N38°42’00”and W81º01’50”) approximately 2.5 miles south of Deavertown and 1.5 miles north of Porterville, in the Bearfield Township of Perry County, Ohio.  Bearfield Township Roads 201 and 454 run adjacent to the proposed project site.  The proposed discharges of dredged and/or fill material would take place within unnamed tributaries to Bennett Run and adjacent wetlands.  Bennett Run is an indirect tributary to the Muskingum River, a traditional navigable water of the United States.  Sheet 1 of 6 depicts the proposed project location. 


DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge dredged and/or fill material into waters of the United States in conjunction with the construction of a 69.8 acre industrial limestone mine, known as the Deavertown Limestone Mine Site.  The project would include the extraction of approximately 150,000 tons of limestone via contour mining techniques annually for an approximate 10 year period.  All surface waters proposed to be affected by the proposed project are underlain by recoverable limestone.  Extraction of limestone, subsequent backfilling and grading and/or haulroad and sediment pond construction would permanently impact 0.38 acre of jurisdictional wetlands and 2,734 linear feet (0.11 acre) of jurisdictional streams as indicated on the attached Table 1.  Material that would be discharged into the on-site wetlands and streams would be soft shale and cohesive soil overburden.  The applicant has obtained an Ohio Department of Natural Resources (ODNR) Industrial Minerals Permit 2429.  The purpose of the project is to recover limestone for commercial sale.  Reclamation activities would involve backfilling, grading, re-distribution of resoiling material, revegetation, and mitigation of affected aquatic features.  Plan view maps (Sheets 2A to 2H) of the proposed site layout and associated impacts to waters of the United States are attached to this public notice. 

ALTERNATIVES ANALYSIS:  A total of approximately 0.38 acre of jurisdictional wetlands and 2,734 linear feet of jurisdictional streams 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 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 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.  A total of approximately 1,059 linear feet of one perennial stream, 713 linear feet of one intermittent stream, 4,256 linear feet of ten ephemeral streams and 0.38 acre of emergent wetlands, subject to Section 404 Clean Water Act regulation, exists within the project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project.  The applicant initially proposed to permanently discharge dredged and/or fill material into 0.38 acre of six jurisdictional wetlands and 4,969 linear feet of 10 jurisdictional streams.  The applicant’s proposed project would avoid 1,059 linear feet (100%) of the on-site perennial stream, 713 linear feet (100%) of the on-site intermittent stream, and 1,522 linear feet (35.8%) of the on-site ephemeral streams.  Agricultural land uses have dominated the project site for the last 40 years.  As shown on Sheet 3 of 6, the applicant proposes to use an existing crossing currently used by farming purposes to access the site.  Sediment ponds, diversion ditches and other drainage controls would be constructed to minimize sedimentation and turbidity in receiving waters.  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 performing on-site wetland establishment and stream re-establishment.  Approximately 0.70 acre of emergent wetlands would be established within the floodplain area of Bennett Run.   Relatively impermeable material (i.e. shale or clay) would be obtained on-site and placed in the bottom of the mitigation wetland.  This material would be placed in nine inch uncompacted lifts and then compacted by repetitious phases of heavy equipment to form an 18 inch thick layer.  A 12 inch thick layer of uncompacted organic material or previously stockpiled topsoil soils would be placed on the clay layer.  Natural recruitment of native plants would be allowed in the on-site wetland mitigation area.  Re-distributed organic material would serve to provide a seed base for natural regeneration of hydrophytic vegetation.  A maximum water depth of six inches would be maintained above the top of the hydric soils.  A 50-foot buffer would be established around the wetland would be planted according to the riparian/wetland planting plan.  Trees and shrubs would be slightly staggered to increase shade coverage.   Sheet 4 of 6 provides details regarding the wetland mitigation site. 




The applicant also proposes to re-establish the affected ephemeral streams using natural stream design techniques at the time of backfilling and grading.  Once the stream corridors are graded, they would be resoiled during the first appropriate planting/growing season.  Pools and riffles would established at the outside meander bends and runs and eddy rocks and woody debris would be installed at various other locations to provide additional aquatic habitat and cover.  All re-established stream channels would exhibit surface water connections to tributary systems of Bennett Run.  Sheet 5 of 6 shows details of the proposed stream re-establishment.  The applicant proposes to permanently protect the wetland mitigation area, including its surrounding upland buffer area via a conservation easement.  The wetland mitigation site would be monitored for a minimum period of five years.  Sheet 6 of 6 depict the location of the proposed wetland mitigation site.

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification will 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.  Additional resources were reviewed including the Ohio Archaeological Inventory, the Ohio Historic Inventory, recorded cemeteries, county atlases/maps, county histories, and Cultural Resource Management survey files.  No previously recorded archaeological or historic sites are located within the proposed project area.  No historic buildings are located within the proposed project area.  No historic significance was noted associated with the owners of the land denoted on the historic atlases.  Agricultural land uses have dominated the project site for the last 45 years.  We have determined the proposed project would have no effect on historic properties.  A copy of this public notice will be furnished to the 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), the proposed endangered northern long-eared bat (Myotis septentrionalis), the endangered snuffbox mussel (Epioblasma triquetra), the endangered American burying beetle (Nicrophorus americanus), the endangered Fanshell mussel (Cyprogenia stegaria), and endangered Pink mucket pearly mussel (Lampsilis abrupta).


No suitable habitat is present within the proposed project area for the above-mentioned federally-protected mussel species.  We have determined the proposed project would have no effect on federally-protected mussel species.  


The project site consists predominately of agricultural fields with small wooded areas.  The small wooded areas may contain suitable summer roosting and foraging habitat for the Indiana bats or the northern long-eared bats.  Similar forested habitat appears to be abundant in the adjacent landscape.  The applicant has agreed to conduct timber removal operations between September 30 and April 1 to minimize effects on the Indiana bats or the northern long-eared bats.  We have determined the proposed project may affect, but would not likely adversely affect either the Indiana bat or the northern long-eared bat. 


Regarding the American burying beetle, the proposed project would have no effect on this insect species because its range does not currently extend into proposed project area; its range is limited to the southern portion of Bearfield and Deerfield Townships. 


Based on this information, the 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 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-2010-930-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.