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LRH 2022-950

Huntington District
Published Dec. 12, 2021
Expiration date: 1/12/2023

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:          

Mr. Brent Bradbury
MBJ Holdings, LLC
8000 Walton Pkwy, Ste 120
New Albany, Ohio 43054

LOCATION:  As depicted on the attached Sheet 1 of 2, the proposed project would be located within the watershed of the Scioto River (40.103135 Latitude, -82.720736 Longitude) east and west of Clover Valley Road, north of Jug Street, and south of Miller Road in the City of New Albany, Licking County, Ohio.  The waters on-site flow to Duncan Run, an indirect tributary to the Scioto River, a navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to discharge 10,605 cubic yards of dredged and/or fill material into 6.51 acres of five (5) forested wetlands and 563 linear feet (0.063 acre) of one (1) intermittent stream (Duncan Run) in conjunction with the construction of the proposed New Albany Tech Park Project as depicted on the attached Sheet 2 of 2 and Table 1.0 below.  Additionally, the applicant is seeking an Isolated Wetlands Permit from the Ohio Environmental Protection Agency to discharge fill material into 8.60 acres of 18 isolated wetlands that are not subject to regulation under Section 404 of the Clean Water Act.  The proposed project would also result in the discharge of fill material into 3.57 acres of five (5) non-jurisdictional ponds that are not subject to regulation under Section 404 of the Clean Water Act.  The industrial business development would include the construction of multiple warehouses, a flex office, and maintenance/manufacturing buildings for advanced technology manufacturers and users.  The industrial park is anticipated to provide approximately five (5) million square feet of occupiable building space along with associated parking areas, paved storage areas, site entrances and drives, stormwater facilities, and associated infrastructure.  The proposed development is anticipated to be occupied by companies supporting and supplying the Intel semiconductor manufacturing facility to the north.  The proposed development would also support the existing New Albany International Business Park by providing locations for expansion by existing businesses and sites for new companies that complement existing uses.

ALTERNATIVES ANALYSIS:  As a result of the proposal, fill material would be discharged into 6.51 acres of five (5) forested wetlands and 563 linear feet (0.11 acre) of one (1) intermittent stream (Duncan Run) as described above.  The project does not require access or proximity to or siting within 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.  A total of 7.33 acres of five (5) forested wetlands, 3,892 linear feet of two (2) intermittent streams, and 54 linear feet of one (1) ephemeral stream are located within the proposed project area and are waters of the United States.  The applicant has proposed to avoid 0.82 acre (71%) of one (1) forested wetland, 3,329 linear feet (100%) of one (1) intermittent stream, and 54 linear feet (100%) of one (1) ephemeral stream.  The applicant has avoided and minimized impacts to waters of the United States to the maximum extent practicable.  The project area also includes a total of 14.46 acres of 18 isolated forested wetlands and 3.57 acres of five (5) non-jurisdictional ponds.  The applicant has avoided 5.86 acres of three (3) isolated forested wetlands.  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 16.3 acres of forested wetland mitigation credits from a federally approved mitigation bank or in-lieu fee program and 844.5 linear feet of stream credits from the Avis Road Pooled Stream Mitigation Site.  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.

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 800, and 33 CFR 325, Appendix C.  A Phase I Cultural Resources Management Survey was conducted by ASC Group, Inc. for a 513-acre study area that included the majority of the New Albany Tech Park permit area.  The Phase I survey identified a total of 74 archaeological sites.  One (1) prehistoric site (33LI3303) was identified as a Hopewell camp.  A Phase IB investigation was conducted to determine the site’s potential for listing on the National Register of Historic Places (NRHP).  The site ultimately yielded 14 artifacts but no evidence of features or other potentially significant information was discovered.  ASC recommended that no further work is necessary at 33LI3303 or any of the other newly documented prehistoric sites.  In addition to the prehistoric sites, 20 sites with historic components and 24 architectural history resources were identified.  All of the resources lack significance and as such are not recommended for further work nor eligible for listing on the NRHP.  The review failed to identify resources within or immediately adjacent to the permit area that have been listed or that have been determined to be eligible for inclusion on the NRHP.  Approximately ten (10) acres of the permit area was not included within the study area of the completed Phase 1 Survey.  The applicant has indicated the remainder of the permit area, approximately ten (10) acres, will be subject to Phase 1 investigations.  A copy of the completed Phase 1 Survey and the Corps effect determination will be provided to the Ohio SHPO.  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 threatened northern long-eared bat (Myotis septentrionalis), and the proposed endangered tri-colored bat (Perimyotis subflavus).  The proposed project area is comprised of agriculture fields, forested areas, 21.04 acres of twenty (20) forested wetlands, 0.75 acre of two (2) emergent wetlands, 3,917 linear feet of two (2) intermittent streams, 54 linear feet of one (1) ephemeral stream, and 3.57 acres of five (5) open water features.  The proposed project area could provide potential habitat for the Indiana bat, the northern long-eared bat, and the tri-colored bat.  A mist net survey was conducted for the majority of the project area and was submitted to the U.S. Fish and Wildlife Service (USFWS) for review on August 23, 2021.  The USFWS provided comments and recommendations based on their review of the bat survey on August 24, 2021 (TAILS # 03E15000-2021-TA-2118).  The USFWS indicated that, “Tree clearing on the site at any time of the year is unlikely to result in adverse impacts to Indiana bats and will not result in any unauthorized incidental take of northern long-eared bats”.  The survey excluded approximately 60 acres of forested habitat within the project area.  By letter dated 20 October 2022 (Project Code: 2022-0089745), the USFWS indicated the previously un-surveyed area contains a significant amount of bat habitat and requested a summer bat survey be completed to determine the presence or absence of threatened and/or endangered bat species.  The applicant has indicated a summer bat survey will be completed in 2023.  The Corps will make an effect determination on impacts to the Indiana bat, the northern long-eared bat, and the tri-colored bat after a review of the completed summer bat survey.  The Corps will request concurrence with our effects determination from the USFWS for the aforementioned bat 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 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 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 Mr. Zack Abbott by email at jonathan.z.abbott@usace.army.mil.  If the drawings are not yet posted on this website, you may request copies of the drawings via email the Mr. Abbott. 

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-2022-950-SCR

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. Zack Abbott of the North Branch, at 304-399-5336, by mail at the above address, or by email at jonathan.z.abbott@usace.army.mil.

Table 1.0 – Proposed Discharges of Dredged and/or Fill Material into Waters of the United States associated with the New Albany Tech Park Project Site (LRH-2022-950-SCR)

Aquatic Resource ID

Type

Amount Onsite (linear feet (lf)/acres (ac))

Proposed Impact (linear feet (lf)/acres (ac))

Impact Type

% Avoided

Stream 1

Intermittent

3,329 lf

0

NA

100%

Stream 2

Ephemeral

54 lf

0

NA

100%

Stream 3

Intermittent

563 lf

563 lf

Fill

0%

Wetland K

Forested

0.20 ac

0.20 ac

Fill

0%

Wetland L

Forested

1.15 ac

0.33 ac

Fill

71%

Wetland R

Forested

5.53 ac

5.53 ac

Fill

0%

Wetland S

Forested

0.20 ac

0.20 ac

Fill

0%

Wetland V

Forested

0.25 ac

0.25 ac

Fill

0%