LRH-2022-820

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. 

APPLICANT:              Aaron Horn

                                    Brooks Creek Development, LLC

                                    8160 Corporate Park Drive, Suite 300

                                    Cincinnati, Ohio 45242

LOCATION:  As depicted on the attached Sheet 1 of 2, the proposed project would be located within the watershed of the East Fork Mill Creek and located within the 83-acre site located east of Interstate 75 and north of Union Center Boulevard in West Chester Township, Butler County, Ohio (39.3218° N, 84.4194° W).  The waters on-site flow the East Fork Mill Creek, an indirect tributary to the Ohio River, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to permanently discharge dredged and/or fill material into approximately 0.74 acre of two (2) wetlands (Wetland 2 – 0.26 acre and Wetland 3 – 0.48 acre) and approximately 617 linear feet (0.13 acre) of one (1) stream (East Fork Mill Creek) in association with the construction of the proposed North Pointe/Brooks Creek Development.  The proposed development would involve the construction of a commercial and residential mixed use area and associated access roads, parking areas, water detention features, and landscaping. See attached Sheet 2 of 2 for a copy of the proposed overall design plan.

ALTERNATIVES ANALYSIS:  As a result of the proposal, dredged and/or fill material would be discharged into waters of the United States as described above.  The project does not require access or proximity to or siting within wetlands (special aquatic sites) to fulfill its basic purpose and is considered a non-water dependent activity.  The 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 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.  Approximately 0.89 acre of three (3) wetlands (Wetlands 1 – 3) and approximately 2,287 linear feet of one (1) perennial stream (East Fork Mill Creek) are located within the approximate 83-acre site project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed project.  The applicant’s preferred development alternative design would involve the discharge of dredged and/or fill material into 0.74 acre of two (2) wetlands (Wetland 2 – 0.26 acre and Wetland 3 – 0.48 acre) and approximately 617 linear feet (0.13 acre) of one (1) stream (East Fork Mill Creek) (83% of the on-site wetlands and 27% of the on-site stream) in order to construct a commercial and residential mixed use area and its attendant features.  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, including silt fences, mulch and/or earthen berms, temporary seeding, hay bales, inlet protection, temporary collection basins, diversion ditches, and construction entrances.  All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities.  After construction, any temporary fill material would be removed in its entirety and the affected areas returned to pre-construction elevations and revegetated, as appropriate. 

COMPENSATORY MITIGATION PLAN (CMP):  To compensate for the loss of 0.74 acre of two (2) wetlands (Wetland 2 – 0.26 acre and Wetland 3 – 0.48 acre) and approximately 617 linear feet (0.13 acre) of one (1) stream (East Fork Mill Creek) associated with the proposed project, the applicant proposes to purchase 0.8 acre of forested wetland mitigation bank credits from an approved service provider.  The applicant’s CMP is currently under review.  After review of all the submitted information, the Corps will determine if the type and level of compensatory mitigation are adequate 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.  The National Register of Historic Places (NRHP) has been consulted and it has been determined that there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  No structures are on-site or in the immediate vicinity of the project site.  Therefore, based on the provided information, the Corps has determined that no historic properties listed on, or eligible for listing on, the NRHP would be affected by the proposed undertaking.  A copy of this Public Notice will be furnished to the Ohio SHPO and Indian Tribes 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 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), and the proposed endangered tricolored bat (Perimyotis subflavus).  The project site consists of an active agricultural area that contains 15.95 acres of one (1) emergent wetland onsite.  The proposed project area could provide potential habitat for the Indiana bat, the northern long-eared bat, and the tricolored bat.  The approximately 83-acre site would be cleared and graded by the applicant to facilitate the construction of the proposed development.  The applicant has agreed to conduct tree clearing operations prior to April 1 and after September 30, 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 either the Indiana bat, the northern long-eared bat, and the tricolored bat.  This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determinations 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).

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 USEPA 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 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 (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. Andrew Wendt by email at andrew.j.wendt@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-2022-820-OHR

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 Mr. Andrew Wendt of the North Branch, at 513-825-4518, by mail at the above address, or by email at andrew.j.wendt@usace.army.mil.