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LRH 2015-01059-OHR

Published March 1, 2016
Expiration date: 3/30/2016

PUBLIC NOTICE: The district engineer has received a mitigation bank prospectus to establish a wetland and stream compensatory mitigation bank for Federal and State permits as described in this Public Notice.  Issuance of a Public Notice regarding proposed mitigation banks is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 332).  The purpose of this Public Notice is to inform you of the proposed mitigation bank and to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest.  We hope you will participate in this process.

 

INTERAGENCY REVIEW TEAM: As indicated in the United States Army Corps of Engineers’ (Corps) regulations (33 CFR 332.8(b)), the district engineer will establish an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee (ILF) programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or ILF programs through the development of mitigation banking or ILF program instruments.  The IRT reviews draft prospectus, prospectus, instruments, and other documents and provides comments to the Corps. The Huntington District Regulatory Division is the lead district for the State of West Virginia and chairs the West Virginia IRT on all statewide or multiple District prospectuses.  The Pittsburgh District may serve as chair when reviewing/processing prospectuses within their geographic area of regulatory responsibility. The West Virginia IRT consists of the following Federal and state agencies: the United States Environmental Protection Agency (USEPA), the United States Fish and Wildlife Service (USFWS), the United States Department of Agriculture’s Natural Resources Conservation Service (NRCS), the West Virginia Department of Environmental Protection (WVDEP), the West Virginia Division of Natural Resources (WVDNR), as well as the Huntington and Pittsburgh Corps Districts.

 

REGULATORY PROGRAM: The Regulatory Program is committed to protecting the Nation’s aquatic resources and navigation capacity, while allowing reasonable development through fair and balanced decisions.  The Regulatory Program is founded upon two (2) primary authorities, which are Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. 

SECTION 10: The Corps is directed by Congress under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition or capacity of navigable waters of the United States.  The intent of this law is to protect the navigable capacity of waters important to interstate commerce.

 

SECTION 404: The Corps is directed by Congress under Section 404 of the Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the United States, including wetlands.  The intent of the law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical, and biological integrity.

 

TO WHOM IT MAY CONCERN: 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 this proposed mitigation bank.

 

BANK SPONSOR:   EBX-EM, LLC (EBX-EM)

        137 ½ East Main Street, Suite 210

        Oak Hill, West Virginia 25901

 

LOCATION: The Bank Sponsor is proposing one (1) mitigation bank in association with this proposal.  The proposed Foster Run Mitigation Bank (LRH-2015-01059-OHR) site is located on an approximate 364-acre tract within the Foster Run and Grimms Run watersheds, in Tyler County, West Virginia (latitude 39.4271, longitude -80.89029).  The proposed Foster Run Mitigation Bank site includes Foster Run, unnamed tributaries to Foster Run, Grimms Run, unnamed tributaries to Grimms Run, and adjacent floodplains and upland corridors.  Foster Run and Grimms Run are both indirect tributary to the Ohio River.    

 

DESCRIPTION OF THE PROPOSED WORK: The sponsor, EBX-EM, received approval for the EBX-EM Umbrella Mitigation Banking Instrument (UMBI) on November 3, 2011 (LRH-2005-01441-GAU).  As defined in 33 CFR 332.8, a UMBI is a single mitigation banking instrument which provides for future authorization of additional mitigation bank sites.  As additional sites are selected, they must be proposed and approved (by the WV IRT) under an existing UMBI.  Therefore, the Foster Run Mitigation Bank proposal is considered a modification to EBX-EM’s UMBI.

 

EBX-EM has submitted a prospectus to the Corps Huntington District to develop and operate a stream and wetland mitigation bank known as the Foster Run Mitigation Bank.  The purpose of the mitigation bank is to provide off-site compensatory mitigation for projects that result in unavoidable impacts (including the discharge of dredged and/or fill material) to streams and wetlands within the specified service area.  The proposed bank will involve the establishment, enhancement, restoration, and preservation of streams, wetlands, and their adjacent floodplains and upland corridors.  

 

Mitigation banks are defined as a site, or suite of sites, where resources (e.g. wetlands, streams, riparian area) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by Department of the Army (DA) permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act.  In addition, the proposed mitigation would provide wetland compensatory mitigation for West Virginia State Water Quality Certifications authorized under Section 401 of the Clean Water Act.  In general, units of restored, established, enhanced, or preserved streams (or wetlands) are expressed as “credits” which may be subsequently withdrawn to offset “debits” incurred at a project development site.  The Corps is responsible for authorizing the use of a particular mitigation bank on a project-specific basis and determining the number and availability of credits required to compensate for proposed impacts.  Decisions rendered by the Corps will fully consider all comments submitted as part of the permit evaluation process.  In areas where a functional or conditional assessment or other suitable metric is not available, a minimum one-to-one acreage (for wetlands) or linear foot (for streams) compensation ratio must be applied in order to achieve a federally mandated “no net loss of aquatic resources.”  Wetland credits would correlate with wetland acreage and classification (i.e. emergent, scrub-shrub and forested).  Stream credits would correlate with linear feet or acceptable forms of assessments and classification of streams.  Acceptable forms of assessments would include those based upon best available science that can be measured or assessed in a practicable manner.

 

The proposed mitigation bank would provide compensatory mitigation for projects resulting in unavoidable impacts to streams and wetlands within specified service areas.  The primary Geographic Service Area (GSA) would be the Middle Ohio North Watershed as defined by the 8-digit Hydrologic Unit Code (HUC) No. 05030201.  The Bank Sponsor has also proposed seven (7) secondary GSA’s, which would be the Upper Ohio South Watershed (05030106), the Middle Ohio South Watershed (05020005), the Upper Ohio North Watershed (05030101), the Dunkard Watershed (05020005), the Monongahela Watershed (05020003), the West Fork Watershed (05020002), and the Little Kanawha Watershed (05030203).

 

The goal of the proposed mitigation bank is to provide compensatory stream and wetland mitigation to offset unavoidable adverse impacts to streams and wetlands through the establishment, enhancement, restoration, and/or preservation of streams, wetlands, and their adjacent floodplains and upland corridors.  The Bank Sponsor proposes to meet the mitigation bank’s goals through the establishment, enhancement, restoration, and/or preservation of streams, wetlands, and their adjacent floodplains and upland corridors, as summarized below:

 

Restoration: The Bank Sponsor proposes to restore approximately 13,897 linear feet (lf) of stream and 3.60 acres of wetland (3.00 acres Re-establishment and 0.60 acres Re-habilitation).  The Bank Sponsor also proposes to restore 50 foot riparian buffers (25 feet on either side of the stream or wetland), if not already established, along stream reaches and wetlands targeted for restoration.

 

Enhancement: The Bank Sponsor proposes to enhance approximately 32,975 lf of stream.  A 50 foot riparian buffer (25 feet on either side of the stream) will also be established and/or restored along the streams.  

 

Establishment: The Bank Sponsor proposes to establish approximately 3,098 lf of stream in areas impacted by logging, agricultural use, and energy production. A 50 foot riparian buffer (25 feet on either side of the stream) will also be established and/or restored along the streams.   

 

Preservation: The Bank Sponsor proposes to preserve approximately 9,385 lf of stream and 1.42 acres of wetland, along with a 50 foot riparian buffer (25 feet on either side of the stream or wetland). 

 

Figure 1 of 3 shows the location of the proposed mitigation bank, Figure 2 of 3 shows the proposed service area map for the proposed mitigation bank, and Figure 3 of 3 shows the proposed resource development proposed mitigation bank.   

 

In accordance with the Rule, performance standards and success criteria established by application of conditional assessments and/or suitable metrics would be outlined and implemented as requirements.  The full prospectus is available for review upon request.

 

WATER QUALITY CERTIFICATION: In accordance with Nationwide Permit No. 27 [under the February 21, 2012 Federal Register, Reissuance of Nationwide Permits (77 FR 10184)], a general Section 401 Water Quality Certification with special conditions applies.  Prior written approval is required from the WVDEP Division of Water and Waste Management in concurrence with the WVDNR.

 

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effect 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 no properties currently listed on the register that are in the area affected by the project.  On October 26, 2015, the Bank Sponsor submitted information to the West Virginia Division of Culture and History, the State Historic Preservation Office, (SHPO) stating the proposed project activity would include the construction of new stream channel (in certain locations) and the enhancement of habitat features within the riparian buffer zone. Through letter dated November 10, 2015, the SHPO stated that the proposed project would have no effect on historic properties.  Therefore, the Corps has determined the proposed project will have no effect on historic properties.    

 

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: This Public Notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended).  One (1) federally listed endangered species, the Indiana bat (Myotis sodalis) and one (1) federally threatened species, the northern long-eared bat (Myotis septentrionalis) may occur within the proposed project area. The proposed project would involve the establishment, enhancement, restoration, and/or preservation of streams, wetlands, and their adjacent floodplains and upland corridors.  The proposed activities would be expected to result in stream and wetland riparian corridor improvements.  Based on the nature of the project, this office has determined the proposed projects may affect (in a positive aspect), but would not likely adversely affect the Indiana bat and the northern long-eared bat. 

 

This Public Notice serves as a request to the 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 areas which would be affected by the activities, 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 approval of this mitigation bank may request 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 activities.  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.  Interested parties are invited to state any objections they may have to the proposed work.  The decision whether to approve the mitigation bank will be based on an evaluation of the probable impact including cumulative impacts of the proposed activities 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 proposals must be balanced against their reasonably foreseeable detriments.  All factors that may be relevant to the proposals 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.  Any person may submit cumulative impact information, which is substantive and specifically associated with the proposed actions.  In addition, the evaluation of the impact of the activities on the public interest will include application of the guidelines promulgated by the Administrator, USEPA, under the authority of Section 404(b) of the Clean Water Act.  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.

 

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 proposed mitigation bank.  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 approve, modify, condition or deny these proposals.  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:

 

Unites States Army Corps of Engineers

ATTN: CELRH-RD-E (Public Notice No. LRH-2015-01059-OHR)

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. Samantha Dailey at the above address, by telephone at (304) 399-5858, or by email at samantha.j.dailey@usace.army.mil.