LRH 2008-00850

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 and Section 10 of the Rivers and Harbors Act of 1899 (Section 10). 

APPLICANT:       
The Ohio Department of Transportation (ODOT)
1980 West Broad Street, Mail Stop 4170
Columbus, Ohio 43223

LOCATION:  The proposed project is located along United State Route (US) 35, west of the City of Xenia, in Beaver Creek Township, Greene County, Ohio.  The proposed project has center coordinates of approximately 39.700697 North Latitude, 83.998411 West Longitude.

DESCRIPTION OF PROPOSED WORK:  The overall project would include upgrading approximately 1.28 miles of US 35 to a limited access facility; constructing three (3) highway bridge structures and retaining walls; removing an at-grade intersection and constructing a new interchange, and reconstructing approximately 0.62 mile of side roads.  To implement the proposal, the applicant is requesting DA authorization for the discharge of fill material into three (3) streams, including the Little Miami River, a navigable water of the United States, and four (4) wetlands, as described below.  Plans of the proposal are attached.

To construct the proposal, the applicant proposes to permanently discharge dredged and/or fill material into 283 linear feet (0.10 acre) of three (3) streams and 0.752 acre of four (4) wetlands, as described in Table 1 below.  The applicant also proposes to temporarily discharge fill material into 236 linear feet (0.10 acre) of two (2) streams.  Proposed temporary discharges of fill material  are also described in Table 1.  As described in this table, the proposed discharges are associated with bank stabilization, culver replacement, temporary work access, embankment fill, and underdrain installation.

Table 1 – Proposed Discharge of Fill Material

LRH-2008-00850-LMR; GRE-35-5.63, PID 107217

ALTERNATIVES ANALYSIS:  As noted above, a total of 283 linear feet (0.10 acre) of three (3) streams and 0.752 acre of four (4) wetlands would be permanently filled as a result of the proposal.  The project does not require access or proximity to or siting within wetlands 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 a 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.  The applicant has submitted an alternatives analysis for review.  The applicant completed an analysis of three different practicable alternatives that could potentially meet the project purpose and need.  The applicant has indicated the preferred alternative, as described above, is the least environmentally damaging practicable alternative.  The applicant’s alternatives analysis is currently under review.  A complete copy of the applicant’s submittal can be reviewed, by appointment, at the above address or a copy may be requested under the Freedom of Information Act.  No permit will be issued until our office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis.

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States (U.S.), consideration must be given to avoiding impacts on these sites.  If waters of the U.S. cannot be avoided, then the impacts must be minimized.  Approximately 519 linear feet of stream and 1.65 acres of wetland are located within the project’s survey area.  According to the applicant, on-site alternatives were considered, and avoidance and minimization efforts were incorporated into the project design.  The project has been designed to completely avoid the discharge of fill material into 236 linear feet of streams and 0.90 acre of wetlands.  The applicant has indicated that the proposed discharge of fill material into waters of the U.S. are unavoidable and that no fill material would be discharged in excess of the minimum needed to complete the project.  Minimization of adverse effects to aquatic resources would also be achieved through adherence to the applicant’s Construction and Material Specifications and the implementation of construction Best Management Practices for sediment and erosion control.

COMPENSATORY MITIGATION PLAN:  To compensate for the permanent discharge of fill material into 283 linear feet (0.10 acre) of stream, the applicant proposes to purchase 424.5 stream credits from an approved In-Lieu Fee program in the Little Miami River watershed.  To compensate for the permanent discharge of fill material into 0.752 ac of wetland, the applicant proposes to deduct 1.65 wetland credits from the applicant’s Green Heron Pooled Mitigation Site in Butler County, Ohio.

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 Water Quality Certification (WQC) from the Ohio Environmental Protection Agency (OEPA) 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).   In accordance with 40 CFR 121.5(a), the Corps submitted a Section 401 WQC notification to the OEPA on September 1, 2022.  The September 1, 2022, Section 401 WQC notification shall serve as the OEPA’s request to act on the Section 401 WQC for the subject DA permit application.  The reasonable period for the OEPA to respond ends on May 29, 2023.  A DA permit, if otherwise warranted, would not be issued on this project until the Section 401 WQC has been issued or waived.  A waiver may be explicit or will be deemed to occur if the Ohio EPA fails or refuses to act on a request for certification within one (1) year, as extended, after receipt of a valid certification request.

HISTORIC AND CULTURAL RESOURCES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding (MOU) executed on December 14, 2020 between the Federal Highway Administration (FHWA) and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 106 of the National Historic Preservation Act (NHPA).  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  Based on previous cultural resources surveys, the applicant determined “no historic property affected” is the appropriate finding and the project is not part of a larger undertaking.  In support of our independent permit decision, the Corps intends to rely upon the information collected by the ODOT regarding the effects to historic properties.  This Public Notice serves as coordination with the Ohio State Historic Preservation Office, pursuant to Section 106 of the National Historic Preservation Act of 1966.  No DA permit will be issued until all obligations under Section 106 of the National Historic Preservation Act of 1966 have been fulfilled. 

THREATENED AND ENDANGERED SPECIES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a MOU executed on December 14, 2020, between the FHWA and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 7 of the Endangered Species Act (ESA).  The proposed project area is located within the known or historic range of the following endangered (E) or threatened (T) species:

• Northern long-eared bat (Myotis septentrionalis) (T),
• Indiana bat (Myotis sodalis) (E),
• Clubshell mussel (Pleurobema clava) (E),
• Rayed bean mussel (Villosa fabalis) (E),
• Snuffbox mussel (Epioblasma triquetra) (E), and
• Eastern massasauga (Sistrurus catenatus) (T).

The ODOT determined the proposed project may affect but is not likely to adversely affect the northern long-eared bat, Indiana bat, and eastern massasauga.  The U.S. Fish and Wildlife Service concurred with the applicant’s determination.  The applicant also determined the proposed project would have no effect on the clubshell, rayed bean, and snuffbox mussels.

In support of our independent permit decision, the Corps intends to rely upon the information collected by the ODOT, and consultation performed by the ODOT, regarding the effects to threatened or endangered species.  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 area which would be affected by the activity, pursuant to Section 7(c) of the ESA of 1972 (as amended).

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 U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR part 230).  The decision 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 protection and utilization of important resources.  The benefit which 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.  A permit will be granted unless its issuance is found to be contrary to the public interest.

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.  The comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  The 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. 

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.  Comments, information requests, and any public hearing requests should be submitted in accordance with the submission methods listed below.  If no comments are received by the close of the comment period, it will be considered that there are no objections.

COMMENT SUBMISSION:  Comments and requests for additional information should be submitted electronically to Peter Clingan by email at peter.m.clingan@usace.army.mil.  Project drawings are pending upload to the website.  If the drawings are not yet posted on this website, you may request copies of the drawings via email to Mr. Clingan. 

If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RDS Public Notice No. LRH-2008-00850-LMR

Building 10 / Section 10

PO Box 3990

Columbus, Ohio 43218-3990

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 this Public Notice.

Please note names and addresses of those who submit comments 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 Peter Clingan of the South/Transportation Branch, at (614) 692-4659, or by email at peter.m.clingan@usace.army.mil.