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LRH 2004-0657-SCR

Published Dec. 3, 2015
Expiration date: 1/1/2016

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 the Section 401 Water Quality Certification for the following application.


APPLICANT:            Pulte Homes

                                  5000 Tuttle Crossing Blvd.

                                  Dublin, Ohio 43229

LOCATION:  As depicted on the attached Figure 1: Project Location Map Sheet 1 of 3), the proposed project would be located in an unnamed tributary to Little Walnut Creek and adjacent wetlands north of Sunbury Meadows Drive in the Village of Sunbury, Delaware County, Ohio (40.237739° N, -82.883836° W).    


PROJECT HISTORY:  Pulte Homes established the proposed Sunbury Meadows, single-family residential development in 2005.  In 2006, a DA authorization was granted for the discharge of dredged and/or fill material into 0.39 acre of wetlands and 200 linear feet of intermittent stream under Nationwide Permit Number 39, described in the January 15, 2002 Federal Register, Final Notice of Reissuance of Nationwide Permits (67 FR 2020), for the construction of Sections 1-7 of the Sunbury Meadows Subdivision.  To compensate for the loss of waters of the United States, the applicant purchased 0.8 acre of wetland credit at the Little Scioto Mitigation Bank and preserved approximately 1,240 linear feet of on-site stream.  Construction of the residential development resulted in an authorized discharge of dredged and/or fill material into 0.39 acre of wetlands and 200 linear feet of intermittent stream. Due to a decline in the economy, Section 7 of the Sunbury Meadows residential development was not developed.  A “Waters of the United States” delineation for the 18 acre, Section 7, project area was verified by the Corps via a letter dated July 10, 2015.  


DESCRIPTION OF PROPOSED WORK:  The applicant proposes to discharge approximately 687 cubic yards of dredged and fill material into 0.42 acre of wetlands, 93 linear feet of intermittent stream and 92 linear feet of ephemeral stream in order to construct 25 single-family homes for Section 7 of the Sunbury Meadows Subdivision (see Table 1).  Cumulatively, the overall residential development would involve the discharge of dredged and/or fill material into a total of 0.81 acre of wetlands and 385 linear feet of streams.  Plans of the work are attached to this notice (Sheets 1-3).


ALTERNATIVE ANALYSIS:  A total of 0.42 acre of wetland and 185 linear feet of streams would be impacted as a result of Section 7 of the Sunbury Meadows subdivision.  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.  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 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 these sites.  If waters of the United States cannot be avoided, then impacts must be minimized.  Avoidance and minimization efforts were incorporated into the proposal.  Approximately 3,047 linear feet of one intermittent stream, 92 linear feet of one ephemeral stream, and 6.01 acres of wetlands subject to Section 404 Clean Water Act regulation existed within the Sections 1-7 of the Sunbury Meadows Subdivision.  Approximately 0.39 acre of wetlands and 200 linear feet of intermittent stream were affected by the previously authorized discharges of dredged and/or fill material. According to the applicant, alternative plans were considered.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the overall project. The proposed project has been designed to completely avoid impacts to the remaining 5.2 acres of wetlands (87%) and 2,754 linear feet of intermittent stream (90%) within the project area.  The applicant would be required to obtain stormwater permits and implement stormwater protection plans as needed for site construction following the requirements of the National Pollutant Discharge Elimination System (NPDES) program.  Based on the application, the applicant has applied for the required NPDES permit from the OEPA.

COMPENSATORY MITIGATION PLAN:  To compensate for the discharge of dredged and/or fill material into 0.42 acre of wetland, the applicant proposes to purchase wetland mitigation credits from a Federally approved wetland mitigation bank.  To compensate for the discharge of dredged and/or fill material into 185 linear feet of intermittent and ephemeral streams, the applicant has proposed to purchase stream mitigation credits from a Federally approved in-lieu fee program. 

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.  Based on the DA application, the applicant has applied for the required Section 401 Water Quality 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.  A Phase I Cultural Resources Management Investigations for the 111.7 ha (276 a.) Sunbury Meadows Housing Development in Berkshire Township, Delaware County, Ohio report was performed by EMH&T on behalf of the applicant for the entire 276 acre Sunbury Meadows project in 2006.  By letter June 13, 2006, the State Historic Preservation Office concurred that no historic properties would be affected by the proposed project and no further investigation would be necessary unless the scope of the project changes or historic properties are accidently discovered. The scope of the project has not changed and no historic properties were discovered during the previously authorized development activities. Therefore, the Corps previous effect determination remains the same.  A copy of this Public Notice will be furnished to the State Historic Preservation Office for their review and comment. 


THREATENED AND ENDANGERED SPECIES:  The project is located within the known or historic range of the following threatened and endangered species:  endangered Indiana bat (Myotis sodalis), threatened 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 based on the proposed implementation of the seasonal tree clearing restrictions, the project may affect, but is not likely to adversely affect either the Indiana bat or the northern long-eared bat.  Based on the lack of suitable habitat within the project area, the Corps has determined the project will not affect either the rayed bean mussel or the snuffbox mussel.  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 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-2004-657-SCR-Un Trib Little Walnut Creek

                                                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 Ms. Lee A. Robinette of the North Branch at 304-399-5210.