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LRH 2009-264-OHR

Published Nov. 2, 2016
Expiration date: 12/2/2016

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Authorization under the provisions of Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act.  


APPLICANT:                        Mr. David Schwake

SunCoke Energy

1011 Warrensville Road, Suite 600

                                      Lisle, Illinois  60532


LOCATION:  The proposed project would be located along the left descending bank of the Ohio River, a Section 10 navigable waterway, and within wetlands adjacent to the Ohio River, approximately 351.2 river miles downstream of Pittsburgh, Pennsylvania in South Shore, Greenup County, Kentucky at approximately latitude 38.7395 and longitude -81.9246.  A project location map is attached to this notice as Drawing 1 of 14.


Description of the proposed workA Public Notice announcing the proposed project was issued on May 10, 2013 and expired on June 10, 2013.  A copy of this previous Public Notice is attached to this notice.  To date, this office has not rendered a final decision regarding the proposed project.  There have been no changes in the proposed project description.  The description in the attached notice remains accurate.  There has been a change to the proposed mitigation for proposal since the 2013 Public Notice was issued. 


In the third paragraph on page 4 of the attached original Public Notice, entitled Compensatory Mitigation Plan, it states that as mitigation for the proposed discharge of fill material into 6.42 acres of jurisdictional wetlands, the applicant proposed to purchase wetland mitigation credit at a 2:1 ratio from the Kentucky Department of Fish and Wildlife Resources (KDFWR) Wetland And Stream Mitigation Program, an approved in-lieu fee program.  As of November 17, 2014, the KDFWR stopped accepting in-lieu fee monies in the Big Sandy Service Area.  Additionally, no mitigation bank credits are available in the Big Sandy Service Area.  Therefore, as mitigation for the proposed discharge of fill material into 6.42 acres of jurisdictional wetlands, the applicant now proposes to establish 15.4 acres of wetland on-site.


HISTORIC & 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 Register which would be directly affected by the proposed work.  The applicant has indicated Phase I and Phase II archaeological surveys have been conducted within the proposed project area.  Based on the findings of the surveys, the applicant has indicated the proposed project area contains cultural resources that are eligible for listing on the National Register of Historic Places (NRHP), specifically sites referred to as 15Gp183 and 15Gp219.  The applicant has also stated the proposed project would have an adverse effect on these sites.  As mitigation for the proposed adverse effect to historic properties, the applicant proposes a combination of geophysical survey, hand excavation, and controlled mechanical excavation to recover information from the historic properties that would be adversely affected by the proposed project. 


The purpose of this Public Notice is also to solicit comments regarding the proposed adverse effects to potential historic properties within the proposed project area and to identify potential consulting parties that wish to participate in addressing the proposed adverse effects to historic properties.  A copy of this public notice, the existing archaeological reports, and the Corps’ determination regarding effects to historic properties will be furnished to the State Historic Preservation Office for their review and response.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


THREATENED & ENDANGERED SPECIES:  The project is located within the known or historic range of the following threatened or endangered species: gray bat, Indiana bat, northern long-eared bat, fanshell mussel, pink mucket mussel, ring pink mussel, rough pigtoe mussel, sheepnose mussel, purple cat’s paw pearly mussel, orangefoot pimpleback mussel, and clubshell mussel. 


The applicant has indicated approximately 45-acres of forested habitat are located within the proposed project area.  The majority of the forested habitat is a long, narrow strip bordered by agricultural fields.  The remaining habitat is a riparian corridor located along the Ohio River and a forested area paralleling the north side of the existing railroad tracks within the project site.  The applicant proposes to remove any suitable habitat for the Indiana bat and northern long-eared bat during the winter, when bats are in hibernation.  If suitable habitat cannot be removed during this timeframe, the applicant proposes to conduct bat surveys within the project area.  Based on this strategy, the Corps has determined the proposed project may affect, but is not likely to adversely affect the Indiana bat and northern long-eared bat. 


According to the applicant, no suitable habitat for the gray bat is present within the proposed project area.  Provided the applicant utilizes appropriate best management practices during construction of the facility, the Corps has determined the proposed project may affect, but is not likely to adversely affect the gray bat.


In November 2008, the applicant conducted a mussel survey within the Ohio River between approximate mile point 351.1 and 351.6.  No threatened or endangered mussel species were found during the survey.  Given the results of the survey, provided the applicant utilizes appropriate best management practices while conducting work within the Ohio River, the Corps has determined the proposed project may affect may affect, but is not likely to adversely affect any listed mussel species.


The Corps has determined 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 to the U.S. Fish and Wildlife Service (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 area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).  The Corps is also requesting the USFWS concur with the Corps’ endangered species determinations described above.


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.  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 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. 


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.  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


Public Notice: LRH-2009-264-OHR

502 Eighth Street

Huntington, WV 25701-2070


Please note comments submitted 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 Kayla Adkins of the South/Transportation Branch, at 304-399-5710, by mail at the above address, or by email at