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LRH 2012-796-GRA

Published Oct. 27, 2015
Expiration date: 11/25/2015

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army 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 to act on Section 401 Water Quality Certification for the following application.  


APPLICANT:  Ohio Department of Transportation (ODOT)

                        1980 West Broad Street, Mail Stop 4170

                        Columbus, Ohio 43223


LOCATION:  The proposed project, referred to as LAK-Auburn/Crile Road, PID 89046, is located at State Route (SR) 44 approximately one mile south of Interstate 90 in Concord Township, Lake County, Ohio.  The proposed project has a center coordinate of 41.685 north latitude, 81.240 west longitude.  Waters of the United States (U.S.) within the project area include an unnamed tributary to Ellison Creek (Stream 1) and two wetlands.


DESCRIPTION OF PROPOSED WORKThe applicant proposes to discharge fill material into waters of the U.S. to construct a road to connect Auburn Road to Crile Road.  The applicant has indicated permanent discharges of fill would be necessary in Stream 1, Wetland A and Wetland C to grade the road and install culverts and rock channel protection.


The applicant seeks authorization for their Preferred Alternative (PA).  Under the PA, the applicant proposes to discharge fill material into 327 linear feet of Stream 1, 0.17 acre of Wetland A, and 1.52 acres of Wetland C.  Please refer to Table 1 for a summary of discharges.  Plans of the proposal are attached to this notice.  

Table 1.  Proposed Discharges of Fill Material into Waters of the U.S.

Waters ID

Flow Regime / Cowardin Class


Volume of Fill

(cubic yards)

Description of

Regulated Discharge

Stream 1


327 lf

(0.02 acre)

79 c.y.

Concrete Pipe and Earthen Fill

Wetland A


0.17 acre

47 c.y.

Aggregate Base

Wetland C


1.52 acre

1,122 c.y.

Concrete Pipe, Earthen Fill, and  Aggregate Base


ALTERNATIVES ANALYSIS: As a result of the proposal, fill material would be discharged into 1.69 acres of jurisdictional wetland.  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, 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 the presumption prior to receiving authorization for the placement of fill material.  No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.


The applicant has submitted an alternatives analysis for review.  The alternatives include Preferred Alternative, Minimal Degradation Alternative, and a Non-Degradation Alternative

·       Preferred Alternative (PA) – The PA is is described above. 

·       Minimal Degradation Alternative (MDA) - The MDA would involve the construction of a connector road extending eastward from Capital Parkway at Auburn Road on a tangent alignment crossing SR 44 and Crile Road. An at-grade intersection would be provided where the connector road crosses SR 44. The road alignment between Auburn Road and SR 44 is similar to the PA; however, the road would be shifted north slightly thus minimizing discharges of fill into wetlands.  After crossing SR44 the new alignment is confined to a sharp bend or half-loop intersection commonly referred to as a “jug handle” or slip road which can restrict vehicle flow before exiting onto Crile Road.  The MDA would include the discharge of fill into 0.81 acre of wetlands which would be 0.88 acre less than the PA.  All other discharges of fill under the MDA would be similar to those proposed under the PA.  A plan view of the MDA is attached to this notice.

·       Non-Degradation Alternative - The Non-Degradation Alternative is a “no build” alternative.  Under the Non-Degradation Alternative, no discharge of fill material into waters of the U.S. would occur.  The applicant has indicated the Non-Degradation Alternative would not meet the project purpose.  By appointment, a complete copy of the alternatives analysis can be reviewed at the address indicated above.


AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding waters of the U.S.  If waters of the U.S. cannot be avoided, the discharge of fill material into waters of the U.S. must be minimized.  A total of approximately 512 linear feet of Stream 1 and 4.25 acres of three wetlands subject to Section 404 Clean Water Act regulation are present within the proposed project area. Avoidance and minimization efforts were incorporated into the proposal.  According to the applicant and as described above, alternative plans were considered.   The applicant selected the current design to create a traditional four-way intersection with Capital Parkway and Auburn Road while minimizing discharges of fill into wetland and streams.  Additionally, modifications to the initial design allowed for complete avoidance of Wetland B.


 The applicant has indicated further avoidance of waters of the U.S. is not practicable due to the nature of the project to upgrade existing transportation, current safety standards, and cost constraints.


COMPENSATORY MITIGATION PLAN:  To compensate for the permanent discharge of fill material into 0.62 acre of forested wetland, the applicant proposes to purchase 1.675 acres of forested wetland mitigation credits from the Trumbull Creek Wetland Mitigation Bank in Ashtabula and Geauga Counties, Ohio.


To compensate for the permanent discharge of fill material into 327 linear feet of stream and 1.07 acres of non-forested wetland, the applicant proposes to deduct 491 linear feet of stream mitigation credit and 2.14 acres of wetland mitigation credit from the SUM-8 Pond Brook Pooled Mitigation Area in Summit County, Ohio.


The applicant’s proposed compensatory mitigation plan is open to comment and is subject to change based on comments received. After review of all submitted information, the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a 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 Ohio Environmental Protection Agency.


HISTORIC AND CULTURAL RESOURCES:  The Federal Highway Administration (FHWA) is the lead Federal agency for this project and is responsible for compliance with the Section 106 of the National Historic Preservation Act.  Based on previous survey work and consultation, on behalf of FHWA, the applicant determined “no historic properties affected” is the appropriate finding for the proposed project.  In support of our independent permit decision, the Corps intends to rely upon the information collected and the consultation performed on behalf of FHWA regarding the effects to historic properties.


A copy of this Public Notice will be sent to the Ohio History Connection for review.  Comments concerning archaeological sensitivity of a project area should be based upon collected data.


THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the following endangered (E) or proposed endangered (PE) species:

·       Indiana bat (Myotis sodalis) (E),

·       Northern long-eared bat (Myotis septentrionalis) (PE),

·       Kirtland’s warbler (Setophaga kirtlandii) (E),

·       Piping plover (Charadrius melodus) (E, Critical Habitat),

·       Snuffbox mussel (Epioblasma triquetra) (E), and

·       Rufa red knot (Calidris canutus rufa) (T).  


The FHWA is responsible for compliance with Section 7 of the Endangered Species Act.  On behalf of FHWA, the applicant determined the project may affect but is not likely to adversely affect the Indiana bat.  In a letter dated March 6, 2013, the United States Fish and Wildlife Service concurred with the applicant’s determination and recommended tree clearing only occur between October 1 and March 31.  The applicant determined the project would have no affect on the snuffbox mussel, piping plover, or Kirtland’s warbler.


No information was provided for the northern long-eared bat or rufa red knot.  Additional information is required before the Corps can determine effects to these species.


In support of our independent permit decision, the Corps intends to rely upon the information collected by or on behalf of the FHWA, and consultation performed by or on behalf of FHWA, regarding the effects to threatened or endangered species.


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.  A permit will be granted unless its issuance is found to be contrary to the public interest.


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. 


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:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RD-S-OT Public Notice No. LRH-2012-00796-GRA

Building 10 / Section 10

PO Box 3990

Columbus, OH 43218-3990


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, may be 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 Tim Long of the South/Transportation Branch, at (614) 692-4654, by mail at the above address, or by email at