LRH 2022-314

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:           Casey Hansen

                                    Nestlé Purina PetCare Company (Nestlé Purina)

                                    3002 Afton Drive

                                    Batavia, Ohio 45103

LOCATION:  As depicted on the attached Sheet 1 of 2, the proposed project would be located within the watershed of the East Fork Little Miami River at 4232 OH-276 in Batavia, Clermont County Ohio, at approximately 39.063718 latitude, -84.079252 longitude.  The waters on-site flow to an unnamed tributary to the Kain Run, an indirect tributary to the Little Miami River, a traditional navigable water of the United States.

DESCRIPTION OF PROPOSED WORK:  The applicant has requested a DA authorization to permanently discharge approximately 12,849 cubic yards of dredged and/or fill material into approximately 4,423 linear feet (0.55 acre) of streams, 5.29 acres of wetlands, and 0.45 acre of open water in order to construct a new wet pet food manufacturing facility.  The purpose of the proposed project is to support growing market needs in the Midwest pet food market.  Nestlé Purina has increased capacity at its current facilities; however, there is still a growing need to expand overall manufacturing capabilities to address demand in Midwest markets, many of which currently require wet pet food products to be shipped from facilities well beyond the region.  Specifically, the proposed project would involve the construction of manufacturing buildings for the installation of multiple production lines that produce several sizes of packaged wet pet food including the infrastructure and attendant features needed to operate the facility, such as utilities, parking lots, and stormwater management as shown on the attached Table 1 and depicted in the attached drawing Sheet 2 of 2. 

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 and in the attached Table 1.  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 approximately 5,112 linear feet of seven (7) streams (Kain Run and Streams 1-6), 5.63 acres of 14 wetlands (Wetlands 1-14), and 0.446 acre of open water are located within the approximate 160-acre site project area.  Avoidance and minimization efforts were incorporated into the proposal to reduce the footprint of the proposed pet food manufacturing facility project.  The applicant’s preferred development alternative design would involve the discharge of dredged and/or fill material into 4,423 linear feet (0.55 acre) of streams, 5.29 acres of wetlands, and 0.45 acre of open water in order to construct the proposed project.  The applicant’s preferred development alternative design would avoid 14% of streams and 6% of the wetlands on the site, with a focus on avoiding higher quality resources when possible.  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 4,423 linear feet (0.554 acre) of streams and 5.29 acres of wetlands associated with the proposed project, the applicant proposes to purchase a total of 10,924 stream credits from The Nature Conservancy Stream and Wetland in Lieu Fee Program and 11.5 wetland mitigation credits from Red Stone Farms Mitigation Bank.  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 on this project until the Section 401 WQC has been issued or waived and the Section 401(a)(2) process has been completed with the U.S. Environmental Protection Agency (USEPA).  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 (40 CFR 121.5).  A pre-filing meeting request must be submitted to the Ohio Environmental Protection Agency 30 days prior to submitting a certification request.  The certification request must be submitted to the Corps and the Ohio Environmental Protection Agency concurrently.  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 800, and 33 CFR 325, Appendix C.  The applicant completed a Phase I archaeological survey of the project site during April and May 2022.  A total of 871 shovel tests were excavated within the Area of Potential Effects (APE) and one (1) new archaeological site (33CT749) was identified.  Debris piles were observed on the site and indicate that much of the site had been disturbed by demolition.  Based on the provided the survey,  this site lacks integrity and is not considered eligible for listing on the National Register of Historic Places (NRHP) and no further archaeological investigation is warranted.  In addition, the applicant completed an architectural survey of the visual APE, which included a literature review and windshield survey for properties fifty (50) years of age or greater.  A total of eight (8) properties were identified within the visual APE and most properties have pre-existing views of the existing Nestlé Purina dry food plant or limited visibility of the site due to existing tree lines.  The applicant’s agent submitted the Phase I Archaeological Survey and Architectural Survey reports to the Ohio State Historic Preservation Office (SHPO) on May 31, 2022 requesting concurrence that the proposed project would not affect properties that are listed on or eligible for listing on the NRHP.  The Ohio SHPO responded in a letter (2022-CLE-55208) dated July 26, 2022, indicating that the proposed project will not affect properties listed on or eligible for listing on the NRHP. 

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 Ohio SHPO 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:  A review of the U.S. Fish and Wildlife Service (USFWS) Information for Planning and Consultation (IPaC) website was conducted on June 1, 2022 (Project Code: 2022-0049033) for the proposed project site.  A total of four (4) federally listed species were identified.  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 tricolored bat (Perimyotis subflavus). 

Several factors have contributed to the three (3) federally protected bat species decline, including habitat loss, fragmentation of habitat and the disease White Nose Syndrome.  During winter, the three (3) bat species hibernate in caves and abandoned mines.  Suitable summer habitat for the Indiana bats and the northern long-eared bats consists of a wide variety of forested/wooded habitats where they roost, forage, and travel and may also include some adjacent and interspersed non-forested habitats such as emergent wetlands and adjacent edges of agricultural fields, old fields and pastures.  This includes forests and woodlots containing potential roosts (i.e., live trees and/or snags ≥3 inches diameter at breast height (dbh) that have any exfoliating bark, cracks, crevices, hollows and/or cavities), as well as linear features such as fencerows, riparian forests, and other wooded corridors.  These wooded areas may be dense or loose aggregates of trees with variable amounts of canopy closure.  Individual trees may be considered suitable habitat when they exhibit the characteristics of a potential roost tree and are located within 1,000 feet (305 meters) of other forested/wooded habitat.  On September 13, 2022, the USFWS announced a proposal to list the tricolored bat as endangered under the Endangered Species Act (ESA).  The bat faces extinction due to the impacts of White Nose Syndrome.  The species has declined so dramatically across its range that it now meets the definition of endangered under the ESA.  White Nose Syndrome has caused estimated declines of more than 90 percent in affected tricolored bat colonies and is currently present across 59 percent of the species' range.  Tricolored bats are vulnerable to the disease during the winter, when hibernating in caves and abandoned mines and tunnels.  During spring, summer, and fall, they roost primarily among leaf clusters of live or recently dead trees, emerging at dusk to hunt for insects over waterways and forest edges.  While White Nose Syndrome is by far the most serious threat to the tricolored bat, other threats now have a greater significance due to the dramatic decline in the species' population.  Those threats, which are exacerbated by climate change variables such as changes in temperature and precipitation, include disturbance to bats in their roosting, foraging, commuting, and wintering habitats and mortality at wind energy facilities.

On March 3, 2022 Nestlé Purina secured a site preparation permit from Clermont County Permit Central/Building Inspection Department to remove trees at the proposed project site for security and pest control purposes.  As a result, approximately 34.66 acres of trees that may have been suitable bat habitat were removed prior to March 31, 2022.  No mechanized clearing, grubbing of stumps, or soil disturbance was conducted as part of the initial site preparation activities.  On June 21, 2022 the applicant’s agent submitted a request for comments to the USFWS Ohio Field Office regarding potential impacts to federally-listed threatened and endangered species at the proposed project site associated with the original cleared acreage (34.66 acres) plus approximately 12.51 acres of remaining habitat proposed for removal.  As a result of this coordination effort, Nestlé Purina proposes a mitigation ratio of 1.5:1 to offset the loss of habitat previously cleared and to mitigate for future clearing of forested habitat at the proposed project site.  Therefore, Nestlé Purina proposes to purchase a total of 71 bat mitigation credits at the USFWS-approved Clermont County Bat Conservation Bank as compensation for the removal of a total of 47.17 acres of potential suitable bat habitat, of which, 34.66 acres were removed prior to coordination efforts and the issuance of a DA permit.  The previously cleared acreage, proposed clearing, mitigation ratio, and total compensation credits are outlined in the attached Table 2.  A copy of the final purchase agreement and final payment would be completed upon issuance of any DA authorization.  In addition, the applicant has agreed to conduct the remaining tree clearing at the proposed project prior to April 1 and after September 30 to minimize effects on the aforementioned federally-protected bat species. 

Based on the information provided, 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.  The applicant provided a letter dated October 17, 2022 (Project Code: 2022-0049033) from the USFWS for reference with the application materials.  This Public Notice serves as a request for concurrence from the USFWS for the aforementioned effect determination 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 ESA of 1972 (as amended).  No DA permit will be issued until the Corps has verified that all obligations under Section 7 of the ESA 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 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 Ms. Laurie Moore by email at laurie.a.moore@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-2022-314-ELM

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 Ms. Laurie Moore of the North Branch, at 937-271-9942, by mail at the above address, or by email at laurie.a.moore@usace.army.mil.