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LRH 2016-123-MUS

Published Oct. 13, 2016
Expiration date: 11/11/2016

PUBLIC NOTICE: The district engineer has received a mitigation bank prospectus to establisha stream and wetland 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 (U.S.) 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 prospectuses, prospectuses, instruments, and other documents and provides comments to the Corps. The Huntington District Regulatory Division is the lead district for the State of Ohio and chairs the Ohio IRT on all statewide or multiple District prospectuses. Buffalo District and Pittsburgh District may serve as chair when reviewing/processing prospectuses within their geographic area of regulatory responsibility. The Ohio IRT consists of the following federal and state resource agencies: Corps Huntington, Buffalo, and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA),

U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resources Conservation Service, Ohio Environmental Protection Agency (OEPA), and Ohio Department of Natural Resources.


REGULATORY PROGRAM: Since its early history, the Corps has played an important role in the development of the nation's water resources.  Originally, this involved construction of harbor fortifications and coastal defenses.  Later duties included the improvement of waterways to provide avenues of commerce.  An important part of our mission today is the protection of the nation's waterways through the administration of the Corps’ Regulatory Program.

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 U.S.  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 U.S., 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:   Buffalo Fork Preserve, LLC

290 Willow Drive

Zanesville, Ohio 43701


LOCATION: The Bank Sponsor is proposing the establishment and management of one (1) mitigation bank.  The proposed approximately 169-acre Buffalo Fork Mitigation Bank site is located approximately 1.75 miles northeast of the Village of Cumberland in Guernsey County, Ohio (latitude 39.866771, longitude -81.630796). This proposal has been assigned Department of the Army (DA) file number LRH-2016-123-MUS.


DESCRIPTION OF THE PROPOSED WORK: The Bank Sponsor has submitted a prospectus to the Corps’ Huntington District to establish and manage one (1) stream and wetland mitigation bank known as the Buffalo Fork Mitigation Bank.


Mitigation banks are defined as a site, or suite of sites, where resources (e.g. wetlands, streams, or riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by DA permits, pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 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 condition 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 the specified service area (map enclosed). The proposed mitigation bank would include a primary service area consisting of one 8-digit Hydrologic Unit Code (HUC) watershed: Wills (HUC 05040005). The secondary service area for the proposed mitigation bank would be defined as all federally jurisdictional and isolated Category 1 wetlands of any size and all isolated Category 2 wetlands of ½ acre or less within the Corps’ Huntington District boundary within the State of Ohio.


The goal of the proposed mitigation bank is to provide compensatory mitigation to offset unavoidable adverse effects to streams and wetlands through the re-establishment and rehabilitation of wetlands, the rehabilitation of stream channels, and the establishment of riparian, wetland, and upland buffers within the boundary of the proposed Buffalo Fork Mitigation Bank. The proposed mitigation bank would provide compensatory mitigation for DA permits authorized under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. In addition, the proposed mitigation would provide compensatory mitigation for Ohio State Water Quality Certifications authorized under Section 401 of the Clean Water Act.


The Bank Sponsor has stated the Buffalo Fork Mitigation Bank is anticipated to generate credits from the re-establishment of a total of 83.0-acres of forested wetland habitat, the rehabilitation of 2.0-acres of emergent wetland habitat, and the rehabilitation of 1,900 linear feet of perennial stream channels. In addition, 3.2 acres of wetland and riparian buffer and 13 acres of upland buffer would be established on-site. According to the information contained the in prospectus, the proposed mitigation bank would generate credits as outlined in Table I, below:


Table I

Buffalo Fork Mitigation Bank Proposed Credit Generation



Credit Ratio

Proposed Credits

Wetland Re-establishment

83.0 acres



Wetland Rehabilitation

2.0 acres



Stream Rehabilitation

1,900 linear feet



Wetland and Riparian Buffer (50m)

3.2 acres



Upland Buffer (50m)

13 acres




The Bank Sponsor proposes to provide long-term protection of the approximately 169-acre mitigation bank through utilization of a conservation easement.


Figure 1 of 4 shows the location of the proposed mitigation bank, Figure 2 of 4 shows the proposed service area map for the proposed mitigation bank, Figure 3 of 4 shows the proposed layout of the proposed mitigation bank, and Figure 4 of 4 shows the conceptual plan for the proposed stream restoration work.

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 OEPA.


HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effect to properties that may be eligible for or listed on 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 historic properties currently listed on the NRHP within the area to be affected by the proposed mitigation bank project. The Bank Sponsor has indicated a 19th century barn is located on the property and it may be eligible for listing on the NRHP, and the barn is not located within the mitigation site. Based on the information provided, the Corps has determined the proposed project would have no adverse effect on properties listed on or eligible for listing on the NRHP.


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-listed threatened species (the northern long- eared bat (Myotis septentrionalis)) may occur within the proposed project area. The proposed project would involve restoration of streams and wetlands and the establishment of riparian, wetland, and upland buffers. The proposed activities would be expected to result in wetland and riparian corridor improvements. Based on the nature of the proposed project, this office has determined the proposed project may affect (in a positive aspect), but would not likely adversely affect the Indiana bat or 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: 

United States Army Corps of Engineers Huntington District

ATTN: CELRH-RD-E (Public Notice No. LRH-2016-123-MUS)

502 Eighth Street

Huntington, West Virginia 25701-2070.


Please note 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 Mr. Cory Wilson at the above address, by telephone at (330) 365-4271, or by email at