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LRH 2015-919-GUY

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.  

 

APPLICANT:            Interstate Development Company LLC

                                    2151 Volunteer Parkway

                                    Bristol, Tennessee 37620

 

LOCATION:  The proposed project would be located on a 45.5 acres parcel near the intersection of U.S. Route 60 (Midland Trail) and Big Bowen Highway near Barboursville, Cabell County, West Virginia at approximately latitude 38.413813 and longitude -82.290027 (See Sheet 1 of 5).

 

PROJECT HISTORY:  Under a Department of the Army (DA) Nationwide Permit #39 (Commercial and Institutional Developments) verification, issued by the United States Army Corps of Engineers (Corps) on August 10, 2016, the applicant was granted authorization to discharge permanent fill material below the ordinary high water mark of 185 linear feet (lf) of one perennial stream (Tanyard Branch) for the installation of two culverts and the realignment of 105 lf of one perennial stream (Tanyard Branch).  Due to a hydraulic analysis of the proposed project site, the applicant indicated it was necessary to redesign the culverts that were previously authorized.  Under a DA Nationwide Permit #39 (Commercial and Institutional Developments) verification, issued by the Corps on August 23, 2016, the applicant was granted authorization to discharge permanent fill material below the ordinary high water mark of 237 lf of one perennial stream (Tanyard Branch) for the installation of one culvert.

 

DESCRIPTION OF PROPOSED WORK:  Interstate Development Company LLC proposes discharge permanent fill material within waters of the United States in conjunction with the Tanyard Crossing Development Project.  The modified proposal now exceeds the provisions allowed for under Nationwide Permit #39 and will be evaluated under the standard permit process.  The Tanyard Crossing Development Project would include the discharge 637 cubic yards of permanent fill material below the ordinary high water mark of 956 lf of one perennial stream (Tanyard Branch) for the installation of two culverts (See Sheets 2-4 of 5).  The proposed 956 lf of culvert cumulatively includes the 237 lf of culvert previously authorized.  The purpose of the proposed Tanyard Crossing Development Project is construct a 45.5 acre commercial development. 

ALTERNATIVES ANALYSIS:  As a result of the proposal, fill material would be discharged below the ordinary high water mark of 956 lf of one perennial stream (Tanyard Branch)The project does not require access or proximity to or siting within the waters of the U.S. to fulfill its basic purpose and is considered a non-water dependent activity.  The applicant has submitted the required alternatives analysis and it is currently under review.  The applicant’s alternatives analysis includes an assessment of a “no-action” alternative, the preferred alternative, and one off-site alternative for the proposed project.  A complete copy of the alternative analysis can be reviewed, by appointment, at the location indicated at the beginning of this notice.  No permit will be issued until our review of the alternative analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

 

AVOIDANCE AND MINIMIZATION:  Avoidance and minimization efforts were incorporated into the proposal.  The applicant has minimized the discharge of fill material within waters of the United States to the maximum extent practicable by designing the commercial development layout to discharge fill material within the minimum length of stream channel necessary in order to fulfil the project purpose.

 

COMPENSATORY MITIGATION PLAN (CMP):  The applicant would be required to compensate for the unavoidable discharge of fill material within 956 lf of perennial stream (Tanyard Branch) associated with the Tanyard Branch Development Project.  The applicant proposes to enhance 1,426 lf of Tanyard Branch and 784 lf of an unnamed tributary to the Guyandotte River located off-site at the Barboursville Park (See Sheet 5 of 5).  Based on the West Virginia Stream and Wetland Valuation Metric (WV SWVM), Version 2.1, a total of 725.4 credits of compensatory stream mitigation would be required to compensate for the permanent discharge of fill material within 956 lf of Tanyard Branch.  The proposed off-site stream enhancements would yield 377.9 credits for Tanyard Branch and 347.6 credits for the unnamed tributary to the Guyandotte River.  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:  A Section 401 Water Quality Certification is required for this project.  It is the applicant’s responsibility to obtain certification from the West Virginia Department of Environmental Protection. 

 

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 which would be indirectly or directly affected by the proposed work.  The Corps has determined the proposed project would have no effect on historic properties.  A copy of this public notice 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 AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the following threatened (T) or endangered (E) species:  

 

Indiana bat (E), Myotis sodalis

northern long-eared bat (T), Myotis septentrionalis

eastern cougar (E), Felis concolor cougar

clubshell mussel (E), Pleurobema clava

fanshell mussel (E), Cyprogenia stegaria

pink mucket mussel (E), Lampsilis abrupta

sheepnose mussel (E), Plethobasus cyphyus

snuffbox mussel (E), Epioblasma triquetra

 

The Corps has consulted the most recently available information and information provided by the applicant and has determined the proposed project does not provide suitable habitat for the eastern cougar, clubshell mussel, fanshell mussel, pink mucket pearly mussel, sheepnose mussel, and snuffbox mussel.  The Corps has determined the project would have no effect on the eastern cougar, clubshell mussel, fanshell mussel, pink mucket pearly mussel, sheepnose mussel, and snuffbox mussel.  An acoustic bat survey was conducted from May 16-18, 2016.  The acoustic survey detected an Indiana bat within the proposed Tanyard Crossing Development Project site.  However, no northern long-eared bat calls were detected during the acoustic survey.  An Indiana Bat Conservation Plan (IBCP) was developed for the proposed Tanyard Crossing Development Project.  The IBCP was approved by the United States Fish and Wildlife Service on August 3, 2016 and included avoidance and minimization measures, as well as conservation measures to avoid adverse impacts on the Indiana bat.  Based on this information, the Corps has determined the proposed project may affect, but is not likely to adversely affect the Indiana bat and northern long-eared bat.  This public notice serves as a request to the United States Fish and Wildlife Service 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.  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

ATTN: CELRH-RD-S

Public Notice: LRH-2015-919-GUY

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 kayla.n.adkins@usace.army.mil.