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LRH 2014-588-MUS

Published Nov. 19, 2015
Expiration date: 12/18/2015

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 (CWA).  This notice serves as the Corps of Engineers’ request to the Ohio Environmental Protection Agency to act on Section 401 Water Quality Certification for the following application.


APPLICANT:            Mr. Steve Harris

                                  Eagle Creek Farm Properties, Inc & Rock Ridge Properties

                                 66701 Scenic Valley Drive

                                 St. Clairsville, Ohio 43950


LOCATION:  The proposed project is within the Wills Creek watershed located west of State Route 147 (Leatherwood Road) and southwest of the city of Barnesville, Warren Township in Belmont County, Ohio (see Figure 1). The proposed discharges of dredged and/or fill material would occur in unnamed tributaries to Leatherwood Creek as depicted on Figures 3-6.  The unnamed tributaries to Leatherwood Creek are indirect tributaries to the Muskingum River, a traditional navigable water of the United States.  The project site is located at latitude 39.977517° North and longitude 81.206514° West.


DESCRIPTION OF PROPOSED WORK: The applicant has requested a Department of the Army authorization to discharge dredged and/or fill material into 1,350 linear feet (lf) of jurisdictional streams and approximately 0.33 acres (ac) of jurisdictional wetlands in association with the expansion of two (2) existing water storage areas (depicted as Pond No. 1 and No. 2 on Figure 2). The applicant would utilize the water storage areas to provide water that is necessary to facilitate the natural gas drilling operations within an approximate 10 mile radius.

The applicant proposes to discharge dredged or fill material into 525 linear feet of perennial streams, 309 linear feet of ephemeral streams, and 0.33 acre of emergent wetlands. The application further proposes to excavate 936 linear feet of perennial streams, 166 linear feet of intermittent streams, 430 linear feet of ephemeral streams, and 1.70 acres of wetlands to increase the storage volume of the inundated area.  Further, the construction of the proposed project would result in the inundation of 965 linear feet of perennial streams, 597 linear feet of intermittent streams, 936 linear feet of ephemeral streams, and 0.14 acre of wetlands.  The excavated and inundated areas would be permanently converted to open water features.

The proposed construction would require an increase to the height of the existing dams, and the excavation of areas located upstreamof the dams, in order to increase the storage capacity of the existing impoundments. 

Ponds 001 and 002 would be constructed with concrete spillways.  Pond 001 would be constructed with a combined emergency spillway as depicted on Figures 3 and 4 and Pond 002 would have a separate emergency spillway as depicted on Figures 5 and 6.

The withdrawal volumes for drilling requirements would periodically exceed 80 to 100 million gallons every six weeks for these stored water areas.  The applicant has indicated the water would be utilized by three different companies who would be using the water at numerous well pad sites.  The volume of water required necessitates the construction of two separate structures, as one is drawn down, the other is recharging, and this process repeats between ponds, insuring an uninterrupted supply.  The proximity of the water usage from Ponds 001 and 002 would range up to a 10 mile radius.  The applicant estimates that the construction would take approximately 2 months to complete and estimates that the use of the ponds is likely to continue for approximately 10 years.

ALTERNATIVES ANALYSIS:  This project is not considered to be water dependent; therefore, the applicant is required to show that other less damaging practicable alternatives, which do not require the discharge of fill material into waters of the U.S., are not available that would achieve the overall project purpose.  No permit will be issued until our review of the alternative analysis clearly demonstrates that upland alternatives are not available to achieve the overall project purpose.  The Clean Water Act Section 404(b)(1) Guidelines state that for non-water dependent activities, practicable alternatives that do not involve special aquatic sites are presumed to be available unless clearly demonstrated otherwise.  Therefore, the applicant is required to provide an alternatives analysis which must overcome that presumption prior to receiving authorization for the discharge of fill in the wetlands.  The applicant has submitted an alternatives analysis for review.

The applicant has indicated the proposed alternative that is described in the Description of the Proposed Work section (above), is the most practicable alternative with respect to cost, logistics, environmental impact, and existing technology.  The applicant’s alternative analysis is under review and available for review in the Huntington District’s Regulatory Office.


AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on the site.  If waters of the United States cannot be avoided, the discharge of fill material into waters of the United States must be minimized. A total of twenty eight (28) streams totaling 8,046 linear feet, fourteen (14) wetlands totaling 3.18 acres, two (2) open water in-stream impoundments, totaling 4.07 acres, and five (5) open water ponds totaling 0.18 acre within the project area and are potentially subject to jurisdiction under Section 404 of the Clean Water Act exist within the project area.

Avoidance and minimization efforts were incorporated into the proposal. The applicant has indicated the discharge of fill material into waters of the United States has been avoided and minimized to the extent that is practicable.  The proposed construction is designed with consideration of the existing topography, the existing dams, and the proximity to gas/oil well pads in the vicinity.  The applicant would be required to obtain stormwater permits and implement stormwater protection plans as required for site construction under Section 402 of the Clean Water Act, in the National Pollutant Discharge Elimination System program.

COMPENSATORY MITIGATION PLAN:  As mitigation for the proposed discharge of fill material into jurisdictional streams and wetlands, the applicant has submitted a conceptual mitigation plan (CMP) to compensate for the losses of streams and wetlands.

The applicant proposes permittee responsible (on-site) mitigation located west of State Route 147 and north of Pond 001. The applicant has indicated the loss of waters of the United States would be offset by preserving 14.94 acres of wetland and 7,329 linear feet of stream.  The wetlands and streams would be preserved in perpetuity and recorded as conservation easement within the county plats, which will document the protection of the mitigation area by the applicant. The CMP is currently under review by this office.

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 & CULTURAL RESOURCES:  This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.

The NRHP has been consulted and it has been determined there are two (2) historic properties which will not be directly affected by the proposed work.  The entire area where the proposed construction is to occur has been disturbed by coal surface mining, (dating back to the 1970’s) with the exception of the two structures mentioned above that were eligible for listing on the NRHP when the most recent coal surface mining project was proposed in 2001.  These two structures were protected by a 100 foot buffer zone during mining, and are not located within the construction limits of the proposed project.  The entire surface mine permit area was analyzed for cultural resources/archaeology prior to mining, and the only resources found were the two structures referenced above.  The entire project area is considered disturbed and would not be expected to yield cultural or historical information.

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 potential effects on historic properties.  If you wish to provide comments or objections regarding the effect of the proposed project on historic properties, please provide this information to our office prior to the close of the comment period.


THREATENED & ENDANGERED SPECIES:  The project is located within the known or historic range of the following threatened (T), endangered (E), species: Indiana bat (Myotis sodalis) (E) and northern long-eared bat (Myotis septentrionalis) (T).

The applicant has indicated a mist net survey for Indiana bats was conducted for an adjacent surface mining area and it proved to be negative for the presence of Indiana bats. The applicant has also provided correspondence from the United States Fish and Wildlife Service (USFWS), dated August 5, 2015, indicating that the proposed project may affect, but would not be likely to adversely affect these federally listed species provided that the applicant incorporate measures to minimize adverse effects to listed bat species into their project.  The applicant proposes to remove any suitable roosting habitat for the bats during the months when the bats are in hibernation and would not be roosting in trees.  Provided suitable Indiana and northern long-eared bat habitat is removed between October 1 and March 31, the Corps has determined the proposed project may affect, but is not likely to adversely affect the Indiana bat or the northern long-eared bat.

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 COMMENT:  Any person who has an interest that may be adversely affected by the issuance of a permit may request a public hearing.  Requests for public hearings shall state, with particularity, the reasons for holding a public hearing.  The request must be submitted in writing to the District Engineer on or before the expiration date of this notice and must clearly set forth the interest which may be adversely affected and the manner in which the interest may be adversely affected by the activity.  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 CWA.  Interested parties are invited to state any objections they may have to the proposed work.  The decision whether to issue a permit will be based on an evaluation of the probable impact 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 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; of those 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.  Written statements on these factors 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.

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 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.

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-E   Public Notice: LRH-2014-588-MUS

                        502 8th Street

                        Huntington, West Virginia 25701-2070


Please note the 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.  Adam Fannin of the Energy Resource Branch at (304) 399-6901.