LRH-2020-632

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act (Section 404) and Section 10 of the Rivers and Harbors Act of 1899 (Section 10). 

APPLICANT:    Mr. Jeremy Wenner

Ohio Department of Natural Resources (ODNR)

Division of Engineering

2045 Morse Road
Columbus, Ohio 43229

LOCATION:  As depicted on the attached Sheets 1-2 of 4, the proposed project would be located within the watershed of the Muskingum River at the Muskingum River Locks and Dam No. 7 in McConnelsville, Morgan County, Ohio at approximately 39.643934 latitude, -81.850185 longitude.  The waters on-site include and flow to the Muskingum River, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge dredged and/or fill material into waters of the United States in conjunction with the proposed McConnelsville Dam Replacement Project (Reference Table 1).  The existing McConnelsville Dam is beyond its serviceable lifespan and requires complete replacement (Reference Sheets 3-4 of 4).  The proposed project would include the replacement of the McConnelsville Dam with the construction of a new stepped dam within the McConnell’s Island limits of the Muskingum River and the decommissioning and demolition of the existing dam.  The proposed new dam structure would be located approximately 580 feet downstream from the existing dam.  The proposed project would result in the temporary discharge of dredged and/or fill material into 188 linear feet (1.277 acres) of the Muskingum River and 107 linear feet (0.149 acre) of Canal No. 7, and the permanent discharge of dredged and/or fill material into 1,387 linear feet (1.556 acres) of the Muskingum River and 0.418 acre of three (3) wetlands (Reference Table 1).  

The adjacent McConnells Island is proposed to be utilized as a staging area for construction materials and equipment.  A temporary bridge would be constructed to cross the canal channel.  A temporary causeway would be constructed along the upstream face of the proposed stepped dam to gain construction access and manage and direct flow of the river during construction.  The majority of the causeway material would be removed following construction of the new dam.  A 30 linear feet portion of the causeway directly abutting the upstream face of the proposed stepped dam would be left in place to provide additional support, allow access to conduct maintenance, and assist with passage of debris over the dam.  The temporary causeway material removed would be placed along the adjacent roadway embankment (N Riverview Road) to provide additional structural integrity and buttress the existing retaining wall supporting the roadway.  A temporary diversion berm would be constructed downstream of the proposed stepped dam to control the flow of water and safely conduct the proposed work.  The downstream diversion berm would be removed and the area returned to pre-construction elevations and contours following completion of the new dam.  

Following construction of the new dam, the old dam would be decommissioned and demolished.  The existing structure is comprised of 24-foot diameter secant, cellular sheet piles filled with a sand and gravel mixture and capped with concrete.  The secant cells would be removed and the sand and gravel would be abandoned in place.  The five (5) northernmost secant cells adjacent to McConnells Island would remain in place and be converted to a pier for fishing access.  In addition, nine (9) secant cells on the opposite bank would remain in place to stabilize the riverbank and to support the adjacent roadway.

Construction of the replacement dam would include phased construction to maintain navigability and downstream flow of the Muskingum River.  The first phase of construction would include construction of the abutments of the new dam and the installation of a temporary bridge.  Temporary causeways would be constructed to the approximate center of the river to provide construction access to construct part of the new dam.  The second phase of construction would include the construction of temporary causeways and adjacent sections of new dam. The last phase of construction would include the removal of the existing dam.  Plans of the proposal are attached to this Public Notice (Reference Sheets 3-4 of 4).

PROJECT HISTORY:  On September 7, 2021, the Corps authorized the ODNR under a Standard Individual DA Permit pursuant to Section 404 and Section 10 to construct a new concrete and steel stepped dam directly adjacent to and abutting the existing dam at the Muskingum River Lock and Dam No. 7.  This design failed to receive any practical bids to conduct the work due to multiple concerns regarding water control, safety, and constructability.  It was ultimately deemed non-feasible to construct, necessitating a new design.  In September 2023, the Corps received a Nationwide Permit (NWP) 33 pre-construction notification indicating the updated dam replacement project would be completed in phases with the first phase including the installation of a temporary bridge.  On October 30, 2023, the Corps authorized the ODNR under a NWP 33 pursuant to Section 404 and Section 10 to install a temporary causeway and temporary bridge across the canal to McConnells Island.  Pursuant to 33 CFR § 330.2(i), the temporary bridge does not exhibit independent utility from the proposed dam replacement activities.  Therefore, all activities would be evaluated cumulatively as described in Table 1.

ALTERNATIVES ANALYSIS:  As a result of the proposal, the proposed project would result in the temporary discharge of dredged and/or fill material into 188 linear feet (1.277 acres) of the Muskingum River and 107 linear feet (0.149 acre) of Canal No. 7, and the permanent discharge of dredged and/or fill material into 1,387 linear feet (1.556 acres) of the Muskingum River and 0.418 acre of three (3) wetlands (Reference Table 1).  The project does not require access or proximity to or siting within special aquatic sites (wetlands) to fulfill its basic purpose and is considered a non-water dependent activity.  The Clean Water Act Section 404(b)(1) Guidelines state for non-water dependent activities, practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternatives analysis that must overcome this presumption prior to receiving authorization for the discharge of dredged and/or fill material.  No DA 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:  In evaluating a project area containing waters of the United States, consideration must be given to avoiding impacts on these sites.  If waters of the United States cannot be avoided, then the impacts must be minimized.  A total of 0.659 acre of nine (9) emergent wetlands, 1,890 linear feet of one (1) perennial stream, the Muskingum River, and 1,610 liner feet of the canal channel of the Muskingum River are located within the proposed project area and are waters of the United States.  The applicant’s preferred alternative would include the temporary discharge of dredged and/or fill material into 188 linear feet (1.277 acres) of the Muskingum River and 107 linear feet (0.149 acre) of Canal No. 7, and the permanent discharge of dredged and/or fill material into 1,387 linear feet (1.556 acres) of the Muskingum River and 0.418 acre of three (3) wetlands (Reference Table 1).  The applicant has indicated they have avoided and minimized impacts to waters of the United States to the maximum extent practicable.  Stormwater management planning would incorporate best management practices and water pollution controls necessary to maintain compliance with the Federal Water Pollution Control Act and Ohio Water Pollution Control Act.  Stormwater management and erosion control systems would be implemented during construction.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities. 

COMPENSATORY MITIGATION PLAN (CMP):  To compensate for the loss of waters of the United States associated with the proposed project, the applicant proposes to purchase 0.9 acre of non-forested wetland mitigation credit from the Nature Conservancy’s In-Lieu Fee Program.  The applicant’s CMP is currently under review.  After review of all the submitted information, the Corps will make a determination of the appropriate compensatory mitigation in the event a decision is made to issue a DA authorization.

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 Water Quality Certification (WQC) from the Ohio Environmental Protection Agency assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued for this project until the Section 401 WQC has been issued or waived and the 401(a)(2) process, if required, as described in the “Clean Water Act Section 401 Certification Rule” (40 CFR Part 121-2023 Rule) has been completed.  The federal agency and certifying authority, the Ohio Environmental Protection Agency, will jointly agree in writing to reasonable period of time.  If the federal agency and certifying authority do not agree on the reasonable period of time, it would default to six (6) months.  The federal agency and certifying authority may jointly agree in writing to extend the reasonable period of time for any reason.  However, the reasonable period of time may not exceed one (1) year.  A waiver may be explicit or will be deemed to occur if the Ohio Environmental Protection Agency fails or refuses to act on a request for certification within the reasonable period of time.

HISTORIC AND CULTURAL RESOURCES:  The Corps is mandated by the National Historic Preservation Act (NHPA) to ensure no federal undertaking, including a Corps permit action, which may affect historic resources, is commenced before the impacts of such action are considered and the Advisory Council on Historic Preservation and the State Historic Preservation Office (SHPO) are provided an opportunity to comment as required by the NHPA, 36 CFR Part 800, and 33 CFR Part 325, Appendix C.  It has been determined that the following historical resources are located within the potential area of effects: the National Register of Historic Places (NRHP) listed Muskingum River Lock and Dam No. 7 (Ohio Historic Inventory MRG0032507), a contributing resource of the Muskingum River Navigation Historic District (NRHP reference # 07000025), the Elk Eye Mill Remnants (MRG0032607), 2909 North Riverview Road (MRG0032706), and the McConnelsville-Malta Electric Company Hydroelectric Plant Ruins (MRG0032406).  The archaeological survey did not identify any archaeological features or deposits and determined that the soils in the project area are severely disturbed.  By letter dated December 8, 2020 (2015-MRG-32337), the Ohio SHPO determined that the Elk Eye Mill Remnants, the McConnelsville-Malta Electric Company Hydroelectric Plant Ruins, and 2909 North Riverview Road do not meet the NRHP criteria for eligibility.  The proposed project would not adversely affect the Muskingum River Navigation Historic District in accordance with the Programmatic Agreement between the Corps, the Ohio SHPO, and the ODNR regarding the Muskingum River Locks and Dams Assessments and Improvements, Coshocton, Morgan, Muskingum, and Washington Counties, Ohio (PA).  However, we have determined the proposed undertaking would have an adverse effect on the NRHP listed Muskingum River Lock and Dam No. 7.  The signatories to the PA agreed that adverse effects to the Muskingum River Navigation Historic District, including contributing resources, resulting from the undertaking, which includes the McConnelsville Dam Replacement, shall be fully mitigated by the measures stipulated in the PA.  In accordance with the PA, a copy of the cultural resource assessments and the Corps’ effect determinations will be provided to the Ohio SHPO and the PA consulting parties for review and concurrence.  Additionally, a copy of this Public Notice will be furnished to the Ohio SHPO and Tribal Nations for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.  No DA permit will be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled. 

THREATENED AND ENDANGERED SPECIES:  The proposed project is located within the known or historic range of the endangered Indiana bat (Myotis sodalis), the threatened northern long-eared bat (Myotis septentrionalis), the proposed endangered tricolored bat (Perimyotis subflavus), the endangered fanshell mussel (Cyprogenia stegaria), the threatened longsolid mussel (Fusconaia subrotunda), the endangered pink mucket pearly mussel (Lampsilis abrupta), the threatened rabbitsfoot mussel (Quadrula cylindrica cylindrica), the threatened round hickorynut mussel (Obovaria subrotunda), the endangered sheepnose mussel (Plethobasus cyphyus), the endangered snuffbox mussel (Epioblasma triquetra), and the threatened American burying beetle (Nicrophorus americanus).  The proposed project area is comprised of regularly maintained turf (via mowing), the rocky shorelines of the Muskingum River, a low head dam, an abandoned early mill foundation, an abandoned early hydroelectric power plant foundation, 0.659 acre of nine (9) emergent wetlands, 1,890 linear feet of one (1) perennial stream, the Muskingum River, and 1,610 liner feet of the canal channel of the Muskingum River.  The proposed project area could provide potential habitat for the Indiana bat, the northern long-eared bat, and the tricolored bat.  The applicant has agreed to conduct tree clearing operations associated with the proposed project prior to between October 1 and March 31, as recommended by the United States Fish and Wildlife Service (USFWS), to minimize effects on the Indiana bat, the northern long-eared bat, and the tricolored bat.  The Corps has determined the proposed project may affect, but is not likely adversely affect the Indiana bat, the northern long-eared bat, and the tricolored bat.  Lawhon and Associates, Inc., on behalf of the applicant, completed a mussel survey and relocation in the summer of 2023 in the vicinity of the proposed project.  No live or fresh dead federally listed species were observed during the mussel survey.  Additionally, mussel species located in the project vicinity would be relocated prior to the commencement of construction.  The Corps has determined the project may affect, but is not likely adversely affect the fanshell mussel, the longsolid mussel, the pink mucket pearly mussel, the rabbitsfoot mussel, the round hickorynut mussel, the sheepnose mussel, and the snuffbox mussel.  The Corps has consulted the most recently available information and information provided by the applicant and has determined the proposed project area does not provide suitable habitat for the American burying beetle.  The Corps has determined the proposed project would have no effect on the American burying beetle.  The applicant provided a technical assistance letter (Project Code: 2023-0119246) from the USFWS for reference with the application materials.  The Corps will request concurrence with our effects determination from the USFWS for the aforementioned species and 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).  No DA permit will be issued until the Corps has verified that all obligations under Section 7 of the Endangered Species Act have been fulfilled. 

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  This application will be reviewed in accordance with 33 CFR Parts 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 the protection and the utilization of important resources.  The benefit 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; 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, American 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 DA permit will be granted unless its issuance is found to be contrary to the public interest.

CLOSE OF COMMENT PERIOD:  Comments should be submitted electronically to Kayla Osborne by email at kayla.n.osborne@usace.army.mil.  If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

                                        United States Army Corps of Engineers, Huntington District

ATTN:  CELRH-RDN Public Notice:  LRH-2020-632-MUS

502 Eighth Street

Huntington, West Virginia 25701-2070

Copies should only be provided through the USPS when electronic transmission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark dated on, or prior to, the close of the comment period listed on page one (1) of this Public Notice.

Please note names, addresses, and comments submitted 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 Kayla Osborne of the North Branch, at 304-399-5850, by mail at the above address, or by email at kayla.n.osborne@usace.army.mil.