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LRH 2016-738-LKR

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 Permit under the provisions of Section 404 of the Clean Water Act (CWA). This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 water quality certification for the following application. 

APPLICANT:  Emerson Commons LLC
                       101 Wyndham Knob
                       Parkersburg, WV  26104

LOCATION:  The proposed project is located on Emerson Avenue, west of the Interstate 77 and State Route 2 Interchange in Parkersburg, Wood County, West Virginia.  The project site is located at latitude ºN 39.308918 and longitude ºW 81.484564 on the Parkersburg USGS Quadrangle map.  The proposed project would be constructed in unnamed tributaries of Fivemile Run and adjacent wetlands. Fivemile Run is a tributary to the Little Kanawha River, a Section 10 navigable water.  The project location map is attached to this public notice.

DESCRIPTION OF THE PROPOSED WORK:  The applicant proposes to discharge fill material into waters of the United States (U.S.) to facilitate the construction of a Menards Store (a commercial development), associated parking, entrance roads, and two outparcels. The construction activities would result in the discharge of a total of 48.8 cubic yards of earthen fill material into 875 linear feet of four (4) intermittent stream channels and 314 linear feet of three (3) ephemeral stream channels (See attached Table 1).  The construction activities would also result in the discharge of 3,185 cubic yards of earthen fill material into eight (8) wetlands totaling 0.775 acre and the discharge of 136 cubic yards of fill material into 0.03 acre of one (1) pond (See attached Table 3).  The project would also result in the excavation of 0.10 acre of six (6) wetlands which would result in a secondary impact to waters of the U.S. at the site (See attached Table 2).  

A copy of the Section 404 Permit Application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) is available for review in the Huntington District Office, by appointment.     


ALTERNATIVE ANALYSIS: A total of 1,189 linear feet of seven (7) streams, 0.87 acre of thirteen (13) wetlands and 0.03 acre of one (1) pond will be filled or excavated as a result of construction of the proposed the commercial development.  The project does not require access or proximity to or siting within the wetlands to fulfill its basic purpose of a commercial development and is considered a non-water dependent activity.  The Section 404(b)(1) Guidelines state that for non-water dependent activities in special aquatic sites, in this case wetlands, practicable alternatives that do not involve wetlands are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternative analysis that must overcome that presumption prior to receiving authorization for the discharge of dredged and/or fill material into wetlands. The applicant has submitted the required alternatives analysis that included an analysis for four potential alternate site locations.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at address indicated above.  No permit will be issued until our review of the alternatives analysis clearly shows that upland resources are not available to achieve the project’s overall purpose.


AVOIDANCE AND MINIMIZATION: In evaluating a project area containing waters of the U.S., consideration must be given to avoiding the discharge of dredged and/or fill material within waters of the U.S.  If waters of the U.S. cannot be avoided, the discharges must be minimized.  In this case, the applicant indicated the proposed project cannot be located in an area that would avoid all discharges of fill material into waters of the U.S.  The applicant minimized discharges into waters of the U.S. by revising the site grading plan and reducing the pad area. The minimization efforts reduced discharges into stream channels by 336 linear feet and into wetlands by 0.51 acre.


COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of fill material into waters of the U.S. after avoidance and minimization of the discharges were considered.  The applicant proposes to purchase stream and wetland credits from the WV Buntootis, LLC’s Kincheloe Wetland and Stream Mitigation Bank located in the West Fork watershed in Lewis and Harrison Counties, West Virginia.


The applicant used the current functional assessment data and used the West Virginia Stream and Wetland Valuation Metric (SWVM) to assess and correlate the baseline conditions of the proposed areas impacted by the discharge of fill material into waters of the U.S. to determine the amount of credits that would be required to be purchased from the Kincheloe Wetland and Stream Mitigation Bank.  Using the WV SWVM, the applicant determined that the total amount of debits associated with the permanent discharges of fill material into waters of the U.S. at the site are 819.41 stream debits and 0.902 wetland debits.  The applicant would purchase a total of 819.41 stream credits and 0.902 acre of wetland debits from the Kincheloe Wetland and Stream Mitigation Bank to off-set
unavoidable losses of aquatic resources associated with the construction of the commercial facility.  As part of our evaluation, the Corps will review the applicant’s CMP and SWVM calculation sheets for accuracy. 


The applicant’s CMP is currently under review, and is available for public review. The proposed CMP is open to comment and is subject to change based on comments received. After review of all the submitted information the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit. 


WATER QUALITY CERTIFICATION: An individual Section 401 Water Quality Certification (WQC) is required for this project.  The applicant has indicated the required WQC is pending with the WVDEP.   


HISTORIC AND CULTURAL RESOURCES:  This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act. Based on a review of the NRHP, there appears to be no cultural or historic sites located within the project area. The applicant has indicated they have contacted the West Virginia Division of Culture and History (WVDCH) regarding the presence of archaeological or architectural resources that may be listed or eligible for listing in the NRHP within the site.  In a letter from the WVDCH to the applicant, the WVDCH indicated the proposal will have no effect on archeological historic properties and no architectural properties located at the site are eligible for or listed in the NRHP.  A copy of this public notice will be sent to the WVDCH their review. Additional comments concerning archeological sensitivity of a project area would be based upon collected data.


ENDANGERED/THREATENED SPECIES REVIEW:  This public notice will serve as coordination with the U.S. Fish and Wildlife Service (USFWS) concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act (ESA) of 1972 (as amended).  The project is located within the known range of the federally listed the Eastern cougar (Felis concolor cougar), Indiana bat (Myotis sodalis), and the northern long-eared bat (Myotis septentrionalis). The Corps has consulted the most recently available information, and based on proposed seasonal tree clearing restrictions, the Corps has determined the project may affect, but is not likely to adversely affect the Indiana bat or northern long-eared bat.  The Corps has determined the project would have no effect on the Eastern cougar.  This Public Notice serves as a request to the USFWS for any additional information that they may have on whether any listed or proposed 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 protection and utilization of important resources.  The benefits 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; 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. 


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.  Interested parties are invited to state any objections they may have to the proposed work.  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 who has an interest that may be adversely affected by the issuance of a permit 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 activity.  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 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.  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 at the beginning 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
ATTN: CELRH-S/T Public Notice: LRH-2016-738-LKR-UNT Fivemile Run
502 Eighth Street
Huntington, West Virginia 25701-2070

Please note that comments received in response to this public notice become part of our administrative record, and, as such, are available to the public under the 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 call Kimberly Courts-Brown of the South/Transportation Branch at (304) 399-6906.
         
 (W)     

 

TABLE 1

Discharges of Fill Material into Waters of the U.S. (Streams) 

Emerson Commons

LRH-2016-738-LKR-UNT Fivemile Run

 

Stream Name

Flow Regime

Type of Impact

Extent of Impacts

(Linear Feet/Acreage)

Total Fill Volume below OHW (cubic yards)

Duration of Impact

UNT 1

Fivemile Run

Intermittent

Fill

342 lf

(0.012 acre)

4.8 c.y.

Permanent

UNT 2

Fivemile Run

Intermittent

Fill

184 lf

(0.004 acre)

1.4 c.y.

 

Permanent

UNT 3

Fivemile Run

Ephemeral

Fill

40 lf

(0.001 acre)

0.1 c.y.

Permanent

UNT 4

Fivemile Run

Intermittent

Fill

244 lf

(0.001 acre)

18.1 c.y.

Permanent

UNT 5

Fivemile Run

Intermittent

Fill

105 lf

(0.007 acre)

8.8 c.y.

Permanent

UNT 9

Fivemile Run

Ephemeral

Fill

153 lf

(0.007 acre)

5.7 c.y.

Permanent

UNT 10

Fivemile Run

Ephemeral

Fill

121 lf

(0.008 acre)

10.1 c.y.

Permanent

Total Discharges

of Waters of U.S.

1,189 lf

0.05 acres

48.8

cubic yards

 

 

 

TABLE 2

Excavation of Wetlands

Emerson Commons

LRH-2016-738-LKR-UNT Fivemile Creek

Wetland Name

Classification

Type of Impact

Extent of Impact (acreage)

Total Fill

Volume below OHW (cubic yards

Duration of Impacts

Wetland A

Palustrine Emergent

(PEM)

Cut (excavation)

0.032 acre

0 c.y.

Permanent

Wetland B

PEM

Cut

(excavation)

0.038 acre

0 c.y.

Permanent

Wetland C

PEM

Cut

(excavation)

0.012 acre

0 c.y.

Permanent

Wetland D

PEM

Cut

(excavation)

0.01 acre

0 c.y.

Permanent

 

Wetland E

PEM

Cut

(excavation)

0.002 acre

0 c.y.

Permanent

Wetland F

PEM

Cut

(excavation)

0.005 acre

0 c.y.

Permanent

 

 

 

 

 

 

 

 

TABLE 3

Discharges of Fill Material into Waters of the U.S. (Wetlands) 

Emerson Commons

LRH-2016-738-LKR-UNT Fivemile Run

Wetland Name

Classification

Type of Impact

Extent of Impacts (acres)

Total Fill Volume below OHW

Duration of Impacts

Wetland G

PEM

Fill

0.172 acre

277 c.y.

Permanent

Wetland H

PEM

Fill

0.117 acre

378 c.y.

Permanent

Wetland I

PEM

Fill

0.239 acre

1,572 c.y.

Permanent

Wetland J

PEM

Fill

0.084 acre

271 c.y.

Permanent

Wetland K

PEM

Fill

0.101 acre

489 c.y.

Permanent

Wetland L

PEM

Fill

0.031 acre

50 c.y.

Permanent

Wetland M

PEM

Fill

0.020 acre

3.0 c.y.

Permanent

Wetland N

PEM

Fill

0.011 acre

9.0 c.y.

Permanent

 

 

 

 

 

 

Pond 1

PUB

Fill

0.028 acre

136 c.y.

Permanent

Total Discharges

of Waters of U.S.

0.90 acre

3,185

cubic yards