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LRH 2014-406-SCR

Published Nov. 10, 2014
Expiration date: 12/9/2014
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:    Brett Smollen
                         The Kroger Company
                          4111 Executive Parkway
                         Westerville, Ohio 43081


LOCATION:  As depicted on the attached Sheets 1 and 2 of 5, the proposed project would be located in three unnamed tributaries to Mill Creek at 1475 West Fifth Street in Marysville, Union County, Ohio (40.240069 N, -83.395675 W).  Mill Creek is a direct tributary to the Scioto River, a traditional navigable water of the United States. 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA permit authorization to discharge dredged and/or fill material into waters of the United States, as described on the attached Table 1, in conjunction with the construction of a supermarket and fuel
center (124,000 square foot) and an associated 529 space parking area.  This facility would replace the existing Kroger Company location at 1095 West Fifth Street in Marysville, Union County, Ohio.  Approximately 356 linear feet of Stream 1 would be affected by the installation of a 30 foot long culvert and the discharge of fill material.  Approximately 308 linear feet of Stream 2 would be affected by the installation of a 30 foot long culvert and the discharge of fill material.   Approximately 28 linear feet of Stream 3 and 4.1 acres of Pond 1 would be affected by the discharge of fill material.  The plans (Sheets 1-4 of 5) for the proposed project are attached to this notice. 

ALTERNATIVES ANALYSIS:  A total of approximately 38 linear feet of intermittent stream, 284 linear feet of ephemeral stream and 4.1 acres of pond would be impacted by the discharge of fill material 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 4.1 acres of pond, 568 linear feet of ephemeral stream and 950 linear feet of intermittent stream 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 proposed project would avoid 154 linear feet (27%) of the on-site ephemeral stream and 642 linear feet (68%) of the on-site intermittent 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.  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 proposes to offset the loss of waters of the United States as a result of the proposal by preserving 642 linear feet of onsite intermittent stream and its associated stream buffer and by constructing a 1.02 acre wet retention basin with a vegetated wetland/littoral shelf planted with native emergent species.  The proposed stream preservation would occur on the project site and would include the preservation of a 50 foot riparian buffer along the unimpacted portions of Stream 2, totaling 642 linear feet. The stream and its associated buffer would be located on property owned by Kroger Company and Connolly Construction Company (the current landowner) and would be protected in perpetuity via environmental covenants to be held by each other.  The proposed 1.02 acre retention basin would be a constructed basin and a wetland system intended to retain water year round. The basin would be comprised of two deep, excavated basins, including a forebay and a main basin. The forebay would be separated from the main body of the basin by an underwater earthen berm with water over it shallow enough to support wetland vegetation. The forebay would serve to trap sediment before it reaches the main body of the basin. The main basin would be encircled by wetland shelves (0.21 acre), which would be planted with a high density of native emergent and submergent vegetation (Sheet 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 project.  Based upon our review of the survey, the on-site investigation discovered two previously unknown archaeological sites (33-UN-[480 & 481]) and two previously unknown OHI properties (UNI-[493 & 494]-09) within the project area. The archaeological sites are a prehistoric isolated find spot and a historic scatter related to the OHI UNI-494-09 which includes a barn, silo, garage, pump house, a partial stone fence, two stone pillars, and two culverts. The OHI UNI-493-09 comprises of a residence, garage, outbuilding, a partial wood fence with stone pillars, and a wood bridge.  The sites were determined to not be eligible for inclusion on the National Register of Historic Places. There were no significant historic buildings or structures noted within the potentially affected area.  The Corps has determined the proposed project would have no effect on historic properties.  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), endangered Scioto Madtom (Noturus trautmani), endangered clubshell mussel (Pleurobema clava), endangered northern riffleshell mussel (Epioblasma torulosa rangiana), endangered rayed bean mussel (Villosa fabalis), endangered snuffbox mussel (epioblasma triquetra), threatened rabbitsfoot mussel (Quadrula cylindrical cylindrical), and proposed endangered northern long-eared bat (Myotis septentrionalis). 

No suitable habitat is present within the proposed project area for the above-mentioned federally-protected mussel species or the Scioto madtom.  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 and the Scioto Madtom. 

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. 

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:

    United States Army Corps of Engineers
    Public Notice No. LRH-2014-406-SCR
    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 Jeremy Cochenour of the North Branch at (304) 399-5210, by mail at the above address, or by email at: jeremy.d.cochenour@usace.army.mil.