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LRH 2010-891-TUS

Published Feb. 12, 2016
Expiration date: 3/14/2016

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:            Lake Mohawk Property Owners Association

                                    1 North Mohawk Drive

                                    Malvern, Ohio  44644


LOCATION:  As depicted on the attached Sheet 1: Lake Mohawk - Project Location Map, the proposed project would be located in Lake Mohawk and an adjacent wetland to Middle Run in Malvern, Carroll County, Ohio (40.645433° N, -81.194507° W).    


PROJECT HISTORY:  A “Waters of the United States” delineation for the dredged material relocation area (DMRA) was verified by the Corps via a letter dated February 5, 2014.  Lake Mohawk is an impoundment of Middle Run.  Middle Run is an indirect tributary to the Tuscarawas River, a traditional navigable water of the United States.


DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA permit for the discharge of dredged material into 2.38 acres of wetland.  Approximately 35,000 cubic yards of material would be excavated via a suction dredge and excavation methods to accommodate acceptable depths in the lake for boat traffic.  All dredged material would be transported to the DMRA via a pump or a truck.  The excavation of material from Lake Mohawk would not result in a discharge of dredged or fill material and is not subject to Section 404 of the Clean Water Act.  Plans of the work are attached to this notice (Sheets 1-2).


ALTERNATIVE ANALYSIS:  A total of 2.38 acres of wetland would be impacted as a result of the disposal of dredged material.  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 dredged and/or fill material into the wetland.  The applicant has not submitted the required alternatives analysis.  No permit will be issued until the applicant  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.  Approximately 7.07 acres of wetlands, subject to Section 404 Clean Water Act regulation, exist within the project limits.  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 4.69 acres of wetlands (66%) within the project area.  The applicant would be required to obtain stormwater permits and to implement stormwater protection plans as needed for site construction following the requirements of the National Pollutant Discharge Elimination System (NPDES) program. 


COMPENSATORY MITIGATION PLAN:  To compensate for the discharge of dredged and/or fill material into 2.38 acres of wetland, the applicant proposes to preserve and enhance the remaining 4.69 acres of wetlands on-site.    


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.  The proposed project would have no effect on historic properties listed on, eligible or potentially eligible for inclusion on the NRHP.  A copy of this public notice will be furnished to Ohio State 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 project is located within the known or historic range of the following federally-protected species:  endangered Indiana bat (Myotis sodalis) and threatened northern long-eared bat (Myotis septentrionalis).  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 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-2010-891-TUS-Middle 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 Ms. Lee A. Robinette of the North Branch at 304-399-5210.