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LRH-2014-826-LMR

Published May 4, 2016
Expiration date: 6/3/2016

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

 

APPLICANT:           Mr. Mark Schnicke

                                    C.T. Devco

                                    566 Miami Trace Court

                                    Loveland, Ohio 45140

 

LOCATION:  As depicted on the attached Figure 3: U.S.G.S. Mason, Ohio 7.5 minute topographical quadrangle map showing the location of the Crooked Tree Phase II Property (Sheet 1 of 16), the proposed 94-acre project site would be located within the watershed of Little Muddy Creek, north of Bethany Road, east of Butler-Warren Road, south of Brewer Road, and west of Montgomery Road, in Mason, Warren County, Ohio (Latitude 39.3852,

Longitude -84.3199).  The proposed discharges of dredged and/or fill material would take place within four wetlands and six seasonal, intermittent streams, and three ephemeral streams, all of which are unnamed tributaries to Little Muddy Creek.  Little Muddy Creek is a tributary to the Little Miami River, a traditional navigable water of the United States.     

 

PROJECT HISTORY:  The Crooked Tree Preserve property is part of a 170-acre tract of land owned by the applicant, C.T. Devco and was formerly used as the Crooked Tree Golf Course, which closed operations in 2013.  Phase I of the Crooked Tree Preserve residential property includes the 76-acre eastern portion of the 170-acre property and is currently under construction for residential use.  As part of the Phase I development, the discharge of dredged and/or fill material into approximately 272 linear feet of unnamed tributaries to Little Muddy Creek was authorized under the Nationwide Permit No. 29 for Residential Developments.  The proposed Phase II project area includes the 94-acre western portion of the 170 acre property. 

 

 

 

 

 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge approximately 41,390 cubic yards of dredged and/or fill material into approximately 1.905 acres of four wetlands, 3,550 linear feet of six seasonal, intermittent streams, and 314

linear feet of three ephemeral streams in association with the construction of the Crooked Tree

Preserve, Phase II, Residential Development project (see Table 1 below).  The proposed project would consist of lot fill, grading and the construction of 113 single family homes with associated roadways, utilities, a storm water management system, and greenspace.  The design plans (see attached Figure 11 - 14: Development plan for Phase II of the Crooked Tree Preserve [Sheets 2-5 of 16]) for the proposed project are attached to this notice.

 

ALTERNATIVES ANALYSIS:  A total of approximately 1.905 acres of four wetlands (Wetlands 4,5,7 and 8), approximately 3,550 linear feet of six seasonal, intermittent streams (Streams G, I, I-1, L, L-1, and M), and approximately 314 linear feet of three ephemeral streams (Streams J, M-1, and M-2) would be filled as a result of the proposal.  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 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 this presumption prior to receiving authorization for the discharge of dredge and/or fill material.  The applicant has submitted an alternatives analysis and it is currently under review.  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 office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis.

 

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 the impacts must be minimized.  Approximately 2.024 acres of six wetlands, 4,519 linear feet of one perennial stream, 4,818 linear feet of six seasonal, intermittent streams, 540 linear feet of four ephemeral streams, and 2.2 acres of one open water pond are located within the proposed 94-acre Phase II project area.  According to the applicant, alternative plans were considered.  Due to the topography of the project area, the applicant focused most of the development along high ground to the north side of the property.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project. The Phase II development, as currently designed, would occupy approximately 55 acres of the 94 acre project site, such that 42% of the property is avoided and would not be developed.  The applicant’s project would avoid 5 % of the wetlands, 100 % of the perennial stream, 27 % of intermittent streams (approximately 1,268 linear feet), 41% of ephemeral streams (approximately 226 linear feet), and 100 % of the open water pond on-site. Stormwater management planning would incorporate best management practices and water pollution controls necessary to maintain compliance with the Federal Water Pollution Control Act and Ohio Water Pollution Control Act.  Construction activities would be performed during low flow conditions.  Stormwater management and erosion control systems would be implemented during construction, including silt fences, mulch and/or earthen berms, temporary seeding, hay bales,

 

inlet protection, temporary collection basins, diversion ditches, and construction entrances.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities. 

 

COMPENSATORY MITIGATION PLAN:  To compensate for the losses of waters of the United States associated with the proposed project, the applicant proposes to restore, enhance and preserve 6,875 linear feet of the Little Muddy Creek (Stream A), including an approximate 100 foot riparian stream buffer onsite (see attached Figure 17: Map of the Crooked Tree Preserve, showing the boundaries of the buffer one which will be placed under an environmental covenant [Sheet 8 of 16], Figure 18: Location reference for Figures 19-25 [Sheet 9 of 16], and Figures 19-25: Details of Mitigation on Little Muddy Creek for the Crooked Tree Preserve [Sheets 10-16 of 16]).  In addition, the applicant would purchase 3.087 wetland mitigation credits from the Ohio Nature Conservancy In-Lieu Fee program.

 

WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification may be required for this project.  It is the applicant’s responsibility to obtain a 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 that would be indirectly or directly affected by the proposed work.  The majority of the project area has been disturbed and used historically as a golf course and for residential development.  The Corps has determined the proposed project would have no effect on historic properties 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 proposed project is located within the known or historic range of the following federally-protected species: the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), the endangered rayed bean mussel (Villosa fabailis), the potentially threatened eastern massasauga (Sistrurus catenatus), and the endangered running buffalo clover (Trifolium stoloniferum). The Corps has consulted the most recently available information. Based on the proposed implementation of the seasonal tree clearing restrictions, we have determined the proposed project may affect, but would not likely to adversely affect either the Indiana bat (Myotis sodalis) or the northern long-eared bat (Myotis septentrionalis).  Based on the project location, avoidance of impacts to the perennial Little Muddy Creek (Stream A), the lack of suitable habitat in the intermittent and ephemeral streams where impacts are proposed, and the applicant’s proposal to perform construction activities during low flow conditions and to use best management practices during construction activities to reduce impacts to downstream resources, we have determined the proposed project may affect, but would not likely adversely affect the rayed bean mussel. Based on the lack of suitable habitat on the project site, we have determined the proposed project would have no effect the Eastern massasauga (Sistrurus catenatus) and the running buffalo clover (Trifolium stoloniferum).

 

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 for concurrence from the United States Fish and Wildlife Service with the aforementioned effect determinations and 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 the protection and the 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;

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, the Federal, state, and local agencies and officials, the 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-2014-826-LMR

                                                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 Laurie Moore of the North Branch at (513) 825-1901, by mail at the above address, or by email at: laurie.a.moore@usace.army.mil.                                                  

                                                                                         





 

 

Table 1.0 Proposed Discharges of Dredged and/or Fill material into Waters of the United States at the Proposed Crooked Tree Preserve Phase II Residential Development Site, Mason, Warren County, Ohio (39.3852, -84.3199)

 

Aquatic Resource

Type

Estimated amount of aquatic resource in review area

Preferred Impact Design

Minimal Impact Design

Least Impact Design

Pond 1

Open water

2.2 acre

0

0

0

Stream A, Little Muddy Creek

Perennial Stream

4,519 linear feet

0

0

0

Stream G, UT Little Muddy Creek

Intermittent/Seasonal Stream

1,197 linear feet

1,197 linear feet

0

85 linear feet

Stream I, UT Little Muddy Creek

Intermittent/Seasonal Stream

1,231 linear feet

598 linear feet

0

598 linear feet

Stream I-1, UT Little Muddy Creek

Intermittent/Seasonal Stream

1,057 linear feet

905 linear feet

0

488 linear feet

Stream L, UT Little Muddy Creek

Intermittent/Seasonal Stream

273 linear feet

207 linear feet

0

0

Stream L-1, UT Little Muddy Creek

Intermittent/Seasonal Stream

252 linear feet

128 linear feet

0

0

Stream J, UT Little Muddy Creek

Intermittent/Seasonal Stream

134 linear feet

0

0

0

Stream M, UT Little Muddy Creek

Intermittent/Seasonal Stream

674 linear feet

515 linear feet

120 linear feet

120 linear feet

Stream K, UT Little Muddy Creek

Ephemeral Stream

64 linear feet

0

0

0

Stream J, UT Little Muddy Creek

Ephemeral Stream

184 linear feet

184 linear feet

0

184 linear feet

Stream M-1, UT Little Muddy Creek

Ephemeral Stream

259 linear feet

97 linear feet

0

0

Stream M-2, UT Little Muddy Creek

Ephemeral Stream

33 linear feet

33 linear feet

33 linear feet

0

Wetland 3

Category 1 Isolated Wetland

0.073 acre

0

0

0

Wetland 4

Category 1 Wetland

0.105 acre

0.105 acre

0

0.105 acre

Wetland 5

Category 2 Wetland

0.157 acre

0.157 acre

0

0

Wetland 6

Category 2 Wetland

0.046 acre

0

0

0

Wetland 7

Category 1 Wetland

0.548 acre

0.548 acre

0

0.346 acre

Wetland 8

Category 1 Wetland

1.095 acre

1.095 acre

0

0

Total Impacts

Perennial Stream

0

0

0

Seasonal/intermittent Stream

3,550 linear feet

1,291 linear feet

120 linear feet

Ephemeral Stream

314 linear feet

217 linear feet

33 linear feet

Wetland

1.905 acre

0.451 acre

0