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LRH-2022-899

Huntington District
Published Sept. 22, 2023
Expiration date: 10/21/2023

TO WHoM IT MAY CONCERN: The district engineer has received a request to modify an approved in-lieu fee program (ILFP) instrument to implement an ILFP project within the United States (U.S.) Army Corps of Engineers (Corps), Huntington District regulatory boundary as described in this Public Notice.  This Public Notice 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 Code of Federal Regulations [CFR] Part 332).  The purpose of this Public Notice is to inform you of the proposed ecological restoration work and to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest.

INTERAGENCY REVIEW TEAM:  As indicated in the United States Army Corps of Engineers’ (Corps) regulations (33 CFR § 332.8(b)), the district engineer has established an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and In-Lieu Fee (ILF) Programs.  The Corps, Huntington District (Regulatory Division) is the lead district for the State of Ohio and chairs the Ohio IRT on all statewide or multiple district proposals.  The Ohio IRT is presently comprised of the Corps (Buffalo, Huntington, and Pittsburgh Districts), the U.S. Environmental Protection Agency (USEPA), the U.S. Fish and Wildlife Service (USFWS), the U.S. Department of Agriculture-Natural Resources Conservation Service, the Ohio Department of Natural Resources, and the Ohio Environmental Protection Agency (Ohio EPA).

IN-LIEU FEE PROGRAMS: An ILFP involves the restoration, establishment, enhancement and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for Department of the Army (DA) permits.  Similar to a mitigation bank, an ILFP sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the ILFP sponsor.  As ILFP mitigation sites are identified and secured, the ILFP sponsor must submit mitigation plans to the district engineer that include all applicable items listed in 33 CFR 332.4(c)(2) through (14). The mitigation plans must also include a credit release schedule consistent with 33 CFR 332.8(o)(8) that is tied to achievement of specific performance standards. The review and approval of ILF projects will be conducted in accordance with the procedures in 33 CFR 332.8(g)(1), as modifications of the ILF instrument.

SPONSOR:    The Nature Conservancy

           Ohio Field Office

           6375 Riverside Drive, Suite 100

           Dublin, Ohio 43017

LOCATION: The sponsor proposes the establishment and management of the Clear Fork In-Lieu Fee Mitigation Project, a 66.49-acre site in the Mohican subbasin (05040002) located south of Blooming Grove Road near Galion (Sandusky Township) Richland County, Ohio (latitude 40.716946 o, longitude -82.696233 o).

DESCRIPTION OF PROPOSED ACTIVITY:  .  The sponsor proposes to conduct aquatic ecosystem restoration by restoring stream channels and riparian areas, re-establishing and rehabilitating wetlands, promoting effective floodplain interaction, improving water quality and aquatic resource habitat.  A complete copy of the Clear Fork In-Lieu Fee Mitigation Plan; Mohican Watershed (HUC 05040002) September 2023 is available for review upon the completion of a Freedom of Information Act (FOIA) request.

The mitigation objectives are the restoration of degraded headwater streams, palustrine wetlands, associated uplands, and long-term protection of the restored areas.  

Overall, the sponsor estimates successful implementation of the project could generate 6,916 stream credits and 32.02 forested wetland credits.  The credits produced by may be utilized to fulfill compensatory mitigation obligations to offset unavoidable impacts (including the discharge of dredged and/or fill material) to aquatic resources resulting from activities authorized under Sections 401 and 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act (RHA) of 1899.

As proposed, the mitigation work plan would involve the restoration of 3,952 linear feet of stream channels, 31.02 acres of wetlands and associated upland buffer areas (26.47 acres) .  The sponsor indicates the site would be constructed, maintained, and monitored based on specific performance standards.  The mitigation credits produced by the ILF site would be eligible for release after demonstrating achievement of the established performance criteria and in accordance with an approved credit release schedule.  A financial assurance would be provided to assure the site success and the sponsor will secure the ILF site by recording a permanent environmental covenant or conservation easement to protect the site.  

The sponsor intends to transfer the site to a long-term steward at the completion of active monitoring and management in conjunction with the site release and/or closure.  A draft long-term management plan has been developed and will be finalized based upon the findings during monitoring period.  The final long-term management plan shall be consistent with the site protection and overall mitigation goals.  The sponsor will also establish an endowment sufficient to fund long-term management activities which would also be transferred to the steward upon site release and/or closure.  Until such time that the long-term steward and management plan are finalized and approved by the Corps, the sponsor would retain any and all long-term management obligations.

Location and details of the proposed site are shown on the attached documents (Sheets 1-4).

DEPARTMENT OF THE ARMY PERMITS:  The establishment and management of the proposed mitigation site are being considered in conjunction with an existing in-lieu fee program  instrument.  Additionally, a Department of the Army (DA) permit will be required under Section 404 for project activities that are proposed within the mitigation work plan.  Project activities will be evaluated under the Nationwide Permit No. 27 described in the December 27, 2021, Federal Register, Reissuance and Issuance of Nationwide Permits (86 FR 73522).

WATER QUALITY CERTIFICATION:  A Section 401 Water Quality Certification may be required from the Ohio EPA.

HISTORIC AND CULTURAL RESOURCES:  This undertaking 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 known historic properties currently listed on the NRHP within the area to be affected by the proposed project.  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 initial coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended). Two (2) federally listed endangered species [Indiana bat (Myotis sodalis) and northern long-eared bat (Myotis septentrionalis)] and one (1) proposed federally endangered species [tricolored bat (Perimyotis subflavus)] have the potential to occur within the vicinity of the project area.

The proposed activities would be expected to result in habitat improvements.  Based on the nature of the proposed project, this office has initially determined the proposed project may affect but would not likely adversely affect the Indiana bat, northern long-eared bat, or tricolored 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:  This proposal 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. In addition, the evaluation of the impact of the activities on the public interest will include application of the guidelines (40 CFR Part 230) promulgated by the Administrator, USEPA, under the authority of Section 404(b) of the Clean Water Act.  Interested parties are invited to state any objections they may have to the proposed work.  Any person who has an interest that may be adversely affected by the approval of this proposed project site 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. A DA permit may be required under Sections 401 or 404 of the CWA or Section 10 of the RHA for activities in conjunction with the establishment of this site. If required, the proposal would be evaluated for compliance with the terms and conditions of Nationwide Permit No. 27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities or, if determined necessary, an individual DA permit pursuant to the procedures outlined at 33 CFR § 325.2 would be required. For individual Department of the Army permits, the decision whether to approve the project 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.  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 project. 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 (1) of this Public Notice.  If no comments are received by that date, it will be considered that there are no objections.  Comments should be submitted electronically to Mr. Wes Barnett by email at wes.barnett@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

502 Eighth Street

Huntington, West Virginia 25701-2070

 

ATTN:  Wes Barnett (CELRH-RDE)

Clear Fork ILF Mitigation Project

Public Notice No. LRH-2022-00899-WAL – UT to Clear Fork

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 FOIA.  Thank you for your interest in our nation’s aquatic resources.  If you have any questions concerning this Public Notice, please contact Mr. Wes Barnett at the above address, by telephone at (304) 399-6905, or by email at wes.barnett@usace.army.mil.