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LRH-2013-00238-SCR

Published Aug. 26, 2016
Expiration date: 9/26/2016

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

 

APPLICANT:   Ohio Department of Transportation (ODOT)

   1980 West Broad Street, Mail Stop 4170

   Columbus, Ohio 43223

           

LOCATION:  The applicant has submitted a proposal to stabilize the eroding descending left bank of Paint Creek at United States (U.S.) Route 23 in Scioto Township, Ross County, Ohio.  Center coordinates of the site are as follows:

Latitude 39.30165 North and Longitude 82.94340 West

 

Waters of the United States (U.S.) within the proposed project area include approximately 1,642 linear feet of Paint Creek and 2.98 acres of adjacent wetlands.  Paint Creek is a direct tributary to the Scioto River, a traditional navigable water (TNW).

 

DESCRIPTION OF PROPOSED WORK:  The applicant has requested authorization to discharge fill material into waters of the U.S. to stabilize an eroding stream bank to maintain the integrity of the U.S. 23 bridges over Paint Creek.  The applicant has indicated permanent discharges of fill material into Paint Creek and Wetland A are necessary to complete this project.  The applicant seeks authorization for their Minimal Degradation Alternative (MDA).  Under the MDA, the applicant proposes to discharge permanent fill material, composed primarily of rock channel protection and earthen fill, into 642 linear feet (lf) of Paint Creek and 0.60-acre of Wetland A.  The applicant has also requested authorization for the temporary discharge of fill material within Paint Creek and Wetland A for construction access and to divert and maintain stream flow, where appropriate.  Please refer to Table 1 for a summary of proposed discharges.  Plans of the proposal are attached to this notice. 

 

 

Table 1 – Nature of Proposed Discharges into Waters of the United States

LRH-2013-00238-SCR; ROS-23-9.26, PID: 83182

 

Aquatic Resource ID

Plan Sheet

Type of Fill Activity

Permanent

Temporary

Fill Volume (cy)

Fill Area (ac)

Length (lf)

Fill Volume (cy)

Fill Area (ac)

Length (lf)

Paint Creek

2, 3

Stream Bank Stabilization and Temporary Access / Flow Diversion

4,195

1.751

642

487

0.95

548

Wetland A

2, 4

Stream Bank Stabilization and Temporary Construction Access

1,520

0.601

N/A

0

0.00

N/A

Totals

5,715

2.351

642

487

0.95

548

 

1 Emergent Wetland A is partially below the ordinary high water mark of Paint Creek.

 

ALTERNATIVES ANALYSIS:  As a result of the proposal, permanent fill material would be discharged into 0.60-acre of jurisdictional wetland.  The project does not require access or proximity to or siting within the wetland 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, 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 the presumption prior to receiving authorization for the discharge of fill material.  No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

 

The applicant has submitted an alternatives analysis for review.  The alternatives include a Preferred Alternative (PA), a Minimal Degradation Alternative (MDA), and a Non-Degradation Alternative.  The MDA is described above.  The PA would result in a permanent discharge of fill material into an additional 108 lf of Paint Creek and the loss of an additional 1.75 acres of wetlands.  The Non-Degradation Alternative is a “no build” alternative.  Under the Non-Degradation Alternative, no discharge of fill material into waters of the U.S. would occur.  The applicant has indicated the Non-Degradation Alternative would not meet the project purpose.  A complete copy of the alternatives analysis can be reviewed, by appointment, at the location described at the beginning of this Public Notice.  

 

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding waters of the U.S.  If waters of the U.S. cannot be avoided, the discharge of fill material into waters of the U.S. must be minimized.  A total of approximately 1,642 linear feet of Paint Creek, a perennial stream, and 2.98 acres of three adjacent wetlands subject to Section 404 Clean Water Act regulation are present within the proposed project area.  According to the applicant, alternatives were considered as described above, and avoidance and minimization efforts were incorporated into the project design.  The applicant has indicated that the project has been designed to completely avoid discharges of fill


material into forested Wetland B (0.26-acre) and forested Wetland C (1.49 acres).  The applicant has indicated no fill material would be discharged into Paint Creek and Wetland A in excess of the minimum needed for erosion protection and temporary construction access.  Partial bioengineering techniques (i.e., natural soil embankment with native riparian area plantings) would be utilized along the re-established descending left bank of Paint Creek to minimize sedimentation into Paint Creek.  The applicant has indicated minimization of adverse effects to aquatic resources would also be achieved through adherence to the applicant’s Construction and Material Specifications and the implementation of construction Best Management Practices for sediment and erosion control.  Such measures may include the installation of silt barriers, silt fence, and ditch checks appropriately placed prior to construction.

 

COMPENSATORY MITIGATION PLAN:  To compensate for the permanent discharge of fill material into 0.60-acre of non-forested Wetland A, the applicant proposes to purchase 1.2-acres of wetland mitigation credit from the Red Stone Farm Wetland Mitigation Bank (RSFWMB) located in Perry Township, Pike County, Ohio.  According to the approved mitigation bank instrument for RSWMB, the Paint Creek watershed is located within the bank’s primary service area

 

To compensate for the permanent discharge of fill material into 642 feet of Paint Creek, the applicant proposes to deduct 963 linear feet of stream preservation from ODOT’s Rupiper Stream and Wetland Preservation Area (RSWPA).  The RSWPA is located in the Lower Scioto River watershed (HUC 05060002) in Green Township, Ross County, Ohio.

 

The applicant’s proposed compensatory mitigation plan is open to comment and is subject to change based on comments received.  

 

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 Ohio Environmental Protection Agency.

 

HISTORIC AND CULTURAL RESOURCES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between the Federal Highway Administration (FHWA) and ODOT, FHWA assigned, and ODOT assumed, responsibility for compliance with the Section 106 of the National Historic Preservation Act.  Based on previous cultural resources surveys, the applicant determined the subject undertaking would have minimal potential to cause effects on any historic property.

 

In support of our independent permit decision, the Corps intends to rely upon the information collected and consultation performed by ODOT regarding the effects to historic properties.  A copy of this Public Notice will be sent to the Ohio History Connection for review.  Comments concerning archaeological sensitivity of the project area should be based upon collected data.

 

 

THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the following endangered (E) or threatened (T) species:

  • Running buffalo clover (Trifolium stoloniferum) (E)

  • Clubshell mussel (Pleurobema clava) (E)

  • Snuffbox mussel (Epioblasma triquetra) (E)

  • Rayed bean mussel (Villosa fabalis) (E)

  • Indiana bat (Myotis sodalis) (E)

  • Northern riffleshell mussel (Epioblasma torulosa rangiana) (E)

  • Northern long-eared bat (Myotis septentrionalis) (T)

 

Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding executed on December 11, 2015 between FHWA and ODOT, FHWA assigned, and ODOT assumed, responsibility for compliance with Section 7 of the Endangered Species Act.  The applicant determined the project may affect, but is not likely to adversely affect the Indiana bat, northern riffleshell mussel, clubshell mussel, rayed bean mussel, and snuffbox mussel.  By letter to ODOT dated March 6, 2013, the United States Fish and Wildlife Service (USFWS) concurred with these determinations.  No information was provided by the applicant for the northern long-eared bat or running buffalo clover.  Additional information is required before the Corps can determine effects of the project on the northern long-eared bat or running buffalo clover.

 

In support of our independent permit decision, the Corps intends to rely upon the information collected by ODOT, and consultation performed by ODOT, regarding the effects to threatened or endangered species.

 

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 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.  A permit will be granted unless its issuance is found to be contrary to the public interest.

 

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. The comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  The 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. 

 

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:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RD-S-OT Public Notice No. LRH-2013-00238-SCR

Building 10 / Section 10

PO Box 3990

Columbus, OH 43218-3990

 

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, may be 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 Brett Latta of the South/Transportation Branch, at (614) 692-4654, by mail at the above address, or by email at Brett.C.Latta@usace.army.mil.