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LRH-2016-490

Huntington District
Published Sept. 15, 2023
Expiration date: 10/15/2023

TO WHOM IT MAY CONCERN:  The following application has been submitted to the United States Army Corps of Engineers’ (Corps) Huntington District for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act. 

APPLICANT:           Rick Towle

       Bavelis Zenios Development, LLC

                                  P.O. Box 278

                                  Lewis Center, Ohio 43035

LOCATION:  As depicted on the attached Sheet 1 of 3, the proposed project would be located within the watershed of the Scioto River, north of Lewis Center Road and west of South Old State Road in Lewis Center, Delaware County, Ohio at approximately 40.204551 Latitude,

-83.002975 Longitude.  The waters on-site flow to an unnamed tributary to the Olentangy River, an indirect tributary to the Olentangy River, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge 3,291 cubic yards of dredged and/or fill material into 0.25 acre of one (1) forested wetland (Wetland E) and 0.46 acre of one (1) emergent wetland (Wetland E) in conjunction with the construction of the proposed Evans Farm Development Project, Section 6, as depicted on the attached Sheet 2 of 3.  The proposed project would involve the construction of 97 single-family lots, 156 multi-family lots, and attendant features within Section 6. 

PROJECT HISTORY:  Pursuant to 33 CFR § 330.2(i), the proposed Evans Farm Development Project, Section 6, does not exhibit independent utility from the existing Evans Farm Development Project, Section 2.  Therefore, the proposed Evans Farm Development Project, Section 6, will be evaluated cumulatively with the existing Evans Farm Development Project, Section 2, as depicted on the attached Sheet 3 of 3.  The Evans Farm Development Project, Section 2, included the authorized discharge of dredged and/or fill material into 0.251 acre of one (1) emergent wetland and 0.244 acre of one (1) forested wetland.  Cumulatively, the Evans Farm Development Project, Sections 2 and 6, would include the discharge of dredged and/or fill material into 0.494 acre of forested wetland and 0.711 acre of emergent wetland.

ALTERNATIVES ANALYSIS:  As a result of the Evans Farm Development Project, Section 6, dredged and/or fill material would be discharged into 0.25 acre of one (1) forested wetland and 0.46 acre of one (1) emergent wetland as described above.  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 0.71 acre of one (1) forested and emergent wetland complex is located within the proposed project area and is a water of the United States.  The applicant’s preferred development alternative would involve the discharge of dredged and/or fill material into 0.25 acre of one (1) forested wetland and 0.46 acre of one (1) emergent wetland in order to construct the residential development.  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 1.1 acres of forested wetland mitigation credits from the Sandy Creek Partners Mitigation Bank.  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” (Rule, 85 Federal Register 42,210 [July 13, 2020]) has been completed.  The Reasonable Period of Time for the certifying authority (Ohio Environmental Protection Agency) to act on the Section 401 WQC will be 270 days from the date the Ohio Environmental Protection Agency receives a valid certification request in accordance with their requirements.  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 270 days after receipt of a valid certification request.

HISTORIC AND CULTURAL RESOURCES:  The Corps is required 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.  A Cultural Resources Literature Review dated March 3, 2013, was completed by Weller and Associates, Inc. associated with the Evans Farm Development Project, Section 6.  A portion of the project area was previously surveyed and identified seven (7) archaeological sites, none of which were considered significant.  Inspection of aerial images indicated severe disturbances are likely in the southeastern and south-central parts of the project area.  The Corps has determined the proposed undertaking would have no effect on historic properties eligible or potentially eligible for inclusion on the National Register of Historic Places.  A copy of the literature review and the Corps’ effect determination will be provided to the Ohio SHPO for review and concurrence.  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 NHPA 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 endangered northern long-eared bat (Myotis septentrionalis), the proposed endangered tricolored bat (Perimyotis subflavus), the endangered snuffbox mussel (Epioblasma triquetra), and the proposed endangered salamander mussel (Simpsonaias ambigua).  The proposed project area is comprised of agriculture fields and forested areas.  The applicant has agreed to conduct tree clearing operations associated with the proposed project between October 1 and March 31, as recommended by the United States Fish and Wildlife Service (USFWS), to minimize effects on the federally-protected bat species and proposed endangered 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, or the tricolored bat.  Suitable habitat for the snuffbox mussel and salamander mussel is not known to occur within the proposed project area.  Due to the project type, location, and nature, the Corps has determined the proposed project would have no effect on the snuffbox mussel and the salamander mussel.  The applicant provided a technical assistance letter (Project Code: 2023-0051761) 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, 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-2016-490-OLR

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.