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Published July 26, 2016
Expiration date: 8/25/2016

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. Robert Shugert

K&S Shugert Farms, FLP

63568 County Home Road

Lore City, Ohio 43755


LOCATION:  As depicted on the attached Sheet 1 of 3, the proposed project would be located within the watershed of Leatherwood Creek (Latitude40.01889N, Longitude 81.41972W), in the City of Lore, Guernsey County, Ohio.  The on-site streams flow into Leatherwood Creek, which is an indirect tributary of the Muskingum River, a traditional navigable water of the United States.     


DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge 87.5 cubic yards of dredged and/or fill material into approximately 242 linear feet of intermittent stream in conjunction with the construction of a berm associated with the Shugert Land Pond Project (see attached Table 1 and Sheet 2 of 3). As a result of the discharge of dredged and/or fill material, approximately 3,754 linear feet of intermittent stream and 110 linear feet of ephemeral stream would be  impounded.  Plans for the proposed project are attached to this notice (see attached Sheet 3 of 3).


ALTERNATIVES ANALYSIS:  A total of approximately 3,996 linear feet of intermittent streams (Streams 1, 2, 4, 6, 7, and 8) and 110 linear feet of ephemeral stream (Stream 3) would be filled as a result of the proposal.  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 4,754 linear feet of intermittent streams (Streams 1, 2, 4, 6, 7, and 8) and 320 linear feet of ephemeral streams (Streams 3 and 5) are located within the proposed project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project.  The applicant’s project would avoid 14% of the on-site intermittent streams and 66% of on-site ephemeral streams.  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 stream 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 loss of waters of the United States associated with the proposed project, the applicant proposes to protect in perpetuity 4,183 linear feet of stream channels and to enhance 200 linear feet of stream channel with 25 foot buffer zone on each side of the stream.


WATER QUALITY CERTIFICATION: A Section 401 Water Quality Certification may be 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 that would be indirectly or directly affected by the proposed work.  The majority of the project area has been used as agricultural land. A few single family residential developments are located around the project area. The center of the project has small rolling hills in which the headwaters of the onsite streams begin. The streams on site have a narrow forested riparian area.


A review of the Ohio State Historic Preservation Office files indicates no archaeological sites are documented within one mile of the project area.  No Ohio Historic Inventory properties are located within or adjacent or within the viewshed of the project area.  The Corps has determined the proposed project would have no effect on any 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 endangered Indiana bat (Myotis sodalis), and the threatened northern long-eared bat (Myotis septentrionalis).


The project site consists of approximately 24 total acres with 4.1 acres containing residential/agricultural land, 3.6 acres undeveloped land, and 16.3 acres of pastureland.

Approximately 5 acres of the entire project site are wooded.  These 5 acres are considered potential habitat for the Indiana bat and the northern long-eared bat and would be cleared or inundated by the applicant to facilitate the construction of the proposed project.  The applicant has agreed to conduct tree clearing operations prior to April 1 and after September 1, as recommended by the United States Fish and Wildlife Service (USFWS), to minimize effects on the Indiana bat and the northern long-eared bat.  We have determined the proposed project may affect, but it would not likely adversely affect either the Indiana bat or the northern long-eared bat. 


This Public Notice serves as a request for concurrence from the USFWS 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-2015-86-MUS

                                                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 Cecil Cox of the North Branch at (304) 399-5210, by mail at the above address, or by email at:   




Table 1. Proposed Loss of Waters of the United States as a result of the Discharge of Dredged and/or Fill Material into Waters of the United States Associated with the Construction of the Shugert Lane Pond Project

Aquatic Resource ID

Aquatic Resource Type

Linear Feet of Impact with Dredged and/or Fill Material

Secondary Linear Feet of Impact due to Inundation

Volume of Fill (cubic yards) within Corps jurisdiction

Stream 1

Intermittent Stream

242 lf

2,278 lf

87.5 cubic yards

Stream 2

Intermittent Stream


795 lf


Stream 3

Ephemeral Stream


110 lf


Stream 4

Intermittent Stream


130 lf


Stream 6

Intermittent Stream


120 lf


Stream 7

Intermittent Stream


293 lf


Stream 8

Intermittent Stream


138 lf




242 lf

3,864 lf

87.5 cubic yards