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LRH 2012-305-OLR

Published March 13, 2015
Expiration date: 4/13/2015

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army Permit (DA) 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 Section 401 Water Quality Certification for the following application.


APPLICANT:             Orangepointe, LLC c/o Casto Development

                                    250 Civic Center Drive, Suite 500

                                    Columbus, Ohio  43215

LOCATION:  As depicted on the attached Figure 1 – Project Location Map (Sheet 1), the proposed project would be located in an unnamed tributary to the Olentangy River and an adjacent wetland east of U.S. Route 23 and south of Orange Point Drive in Lewis Center, Orange Township, Delaware County, Ohio (40.178611° N, -83.021841° W).

PROJECT HISTORY:  In a letter dated May 20, 2013 the United States Army Corps of Engineers (Corps) verified the “Waters of the United States” delineation for the entire 20.8 acre project area.  In addition, the letter also authorized the discharge of 2,034 cubic yards of dredged and/or fill material into 50 linear feet (0.004 acre) of an unnamed tributary to the Olentangy River (UT Olentangy River 1), 0.25 acre of Wetland B, 0.13 acre of Wetland C, and 0.11 acre of Pond 1 under Nationwide Permit Number 39, described in the February 21, 2012 Federal Register, Notice of Reissuance of Nationwide Permits (72 FR 10184), for the construction of a 125,000 square foot commercial warehouse.  To compensate for the loss of waters of the United States as a result of the proposed warehouse construction, the applicant purchased 0.60 acre of non-forested wetland credits from the Big Darby Hellbranch Wetlands Mitigation Bank. 


DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge approximately 347 cubic yards of fill material into 220 linear feet (0.02 acre) of an unnamed tributary to the Olentangy River (UT Olentangy River 2) and 0.06 acre of wetland (Wetland C) in association with the expansion of the previously authorized warehouse facility.  The applicant has stated the discharges of dredged and/or fill material into the remainder of the on-site stream (currently encapsulated via a culvert) and wetland are necessary to accommodate an access road to the proposed development expansion and parking areas in the southwestern portion of the project area.  Plans of the work are attached to this notice (Sheets 1 and 2).


ALTERNATIVE ANALYSIS:  A total of 0.38 acre of Wetland C, 0.11 acre of Pond 1, and 50 linear feet of UT Olentangy River 1 have been filled as a result of the Nationwide Permit 39 verification letter dated May 20, 2013.  The proposed expansion would result in the permanent loss of 220 linear feet (0.02 acre) of intermittent stream currently encapsulated via a culvert (UT to Olentangy River 2) and the remaining 0.06 acre of emergent wetland (Wetland C).  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 that for non-water dependent activities in special aquatic sites, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternative analysis that must overcome that presumption prior to receiving authorization for the discharge of fill material into the wetlands.  To date, the applicant has not submitted the required alternatives analysis.  No permit will be issued until our review of the alternatives analysis clearly shows that upland alternatives are not available to achieve the project purpose. 


AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on this site.  If waters of the United States cannot be avoided, then impacts must be minimized.  Avoidance and minimization efforts were incorporated into the proposal.  A total of 220 linear feet of intermittent stream, 0.24 acre of Pond 1, and one wetland totaling 0.06 acre, subject to Section 404 Clean Water Act regulation, exist on the project site.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed development project.  The proposed project has been designed to completely avoid impacts to the remaining 0.24 acre of Pond 1.  Construction activities would be performed during low flow or no flow conditions.  Stormwater management planning would incorporate best management practices and other techniques necessary to maintain compliance with the Federal Water Pollution Control Act, Ohio Water Pollution Control Act.  The applicant is required to prepare a Storm Water Pollution Prevention Plan as part of their National Pollutant Discharge Elimination System general stormwater permit.  Stormwater generated during the construction phases of the proposed project would be directed into stormwater basins or other acceptable stormwater features for water quality treatment and temporary storage before being released into the receiving streams.  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 previously authorized discharges of dredged and/or fill material into waters of the United States, the applicant purchased 0.6 acre of wetland mitigation credit from the Big Darby Hellbranch Mitigation Bank. The applicant proposes to purchase an additional 0.1 acre of wetland mitigation bank credit to compensate for the additional discharge of dredged and/or fill material into Wetland C.  The applicant would be required to provide the Corps with a copy of the fully executed mitigation purchase agreement within 30 days of issuance of the permit.


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:  A Phase I Cultural Resources Survey was performed by Weller & Associates, Inc. on behalf of the applicant for the entire 20.8 acre property prior to the authorization of the discharge of dredged and/or fill material into waters of the United States associated with the previously verified Nationwide Permit Number 39.  The survey identified two previously unidentified archaeological sites and concluded these sites are not eligible for listing in the National Register of Historic Places (NRHP).  The survey identified one property currently listed on the NRHP which would be indirectly or directly affected by the previously authorized work. A copy of the Phase I Cultural Resource Management Survey was furnished to the State Historic Preservation Office (SHPO) with the determination of “no adverse effect” by letter dated April 22, 2013.  The SHPO concurred with our determination by letter dated May 7, 2013.  Based on the Phase I survey previously conducted on the site, the Corps has determined the proposed expansion would have “no adverse effect” on the existing property listed on the NRHP.


THREATENED AND ENDANGERED SPECIES:  The project is located within the known or historic range of the following endangered or proposed endangered species:  endangered Indiana bat (Myotis sodalis), proposed endangered Northern long-eared bat (Myotis septentrionalis), endangered Rayed bean mussel (Villosa fabalis), and endangered Snuffbox mussel (Epioblasma triquetra).   The Corps has consulted the most recently available information and has determined the project will have no effect to the aforementioned species.  Based on this information, the proposed 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 to the United States Fish and Wildlife Service (USFWS) 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 which 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-2012-305-OLR-UT Olentangy River

                                                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, Ms. Leah Morgan of the North Branch at 304-399-5548.