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LRH 2015-770-MUS

Published Oct. 7, 2015
Expiration date: 11/5/2015

TO WHOM IT MAY CONCERN:  The following application has been submitted for an after-the-fact (ATF) 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 the Section 401 Water Quality Certification for the following application.


APPLICANT:            Mr. David K. Casey

                                    Pine Hill Land Development, LLC

                                    P.O. Box 660-192

                                    Dallas, Texas 75230


LOCATION:  As depicted on the enclosed location map (Sheet 1 of 5), the proposed project would be located near the intersection of Route 209 and Dozer Road near the City of Cambridge, in Guernsey County, Ohio (latitude 39.99948, longitude -81.58352). 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested an ATF DA permit authorization for the unauthorized discharge of approximately 5,200 cubic yards of clay and shale into approximately 0.8 acre of wetland (Wetland A), which occurred in conjunction with construction activities for the proposed commercial development referred to as the Pine Hill Crossing project.  In addition, the applicant is requesting a DA permit authorization for the proposed discharge of approximately 25,132 cubic yards of clean clay and shale into approximately 0.7 acre of two wetlands (Wetland A: 0.686 acre and Wetland B: 0.019 acre) to complete the proposed project.  A total of approximately 1.5 acres of wetland would be affected as a result of the discharge of dredged and/or fill material into waters of the United States for the proposal. The plans (Sheets 2 through 4 of 5) for the proposed project are attached to this Public Notice. 

ALTERNATIVE ANALYSIS: The applicant’s basic project purpose is to construct a commercial development.  A total of 1.5 acres of wetland would be affected as a result of the discharge of dredged and/or fill material into waters of the United States for 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 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.  The applicant has submitted the required alternatives analysis, and it is currently under review.  A complete copy of the alternatives analysis can be reviewed by appointment at the above address.  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 to waters of the United States on the site. If waters of the United States cannot be avoided, then impacts must be minimized.  A total of approximately 1.508 acres of palustrine emergent (PEM), scrub shrub (PSS) and forested (PFO) wetlands (Wetland A: 1.489 acres and Wetland B: 0.019 acre) existed on the project site prior to construction, as documented in the Preliminary Jurisdictional Determination (PJD) completed by this office on February 23, 2015 under DA file number LRH-2014-405-MUS – Unnamed Tributary to Chapman Run.  The February 23, 2015 “Delineation Map,” (Sheet 5 of 5) depicts the delineated aquatic resources covered under the aforementioned PJD.

According to the applicant, alternative plans were considered.  The applicant’s proposed project would affect 1.508 acres (100%) of the on-site PEM, PSS and PFO wetlands covered under the aforementioned PJD. The applicant has indicated 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 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 compensate for the loss of aquatic resource functions as a result of the unauthorized discharge of and/or fill material into approximately 0.8 acre of jurisdictional wetland by purchasing 1.0 forested wetland credits and 0.8 non-forested wetland credits through the Corps’ In-Lieu Fee Program administered by the Ohio Wetlands Foundation.  In addition, the applicant proposes to compensate for the loss of aquatic resource functions as a result of the proposed discharge of dredged and/or fill material into approximately 0.7 acre of jurisdictional wetland by purchasing wetland credits through the Corps’ Huntington District In-Lieu Fee Program administered by the Ohio Wetlands Foundation.

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:  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP which would be indirectly or directly affected by the proposed work. 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 threatened northern long-eared bat (Myotis septentrionalis).

The applicant has indicated no suitable habitat for the Indiana bat or the northern long-eared bat is present within the proposed project boundary.  The Corps has consulted the most recently available information, and has determined the proposed project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.

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 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 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-2015-770-MUS – UT to Chapman Run

                                    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 Mr. Cory L. Wilson of the North Branch at 330-365-4271.