Please address comments to: Will Worrall, Nashville District Corps of Engineers, Regulatory Division, 3701 Bell Road, Nashville, Tennessee 37214
SUBJECT: Proposed discharge of fill material into waters of the United States to facilitate widening of State Route (SR) 28, from near North Lowe Road to SR-62 near Clarkrange, Cumberland and Fentress Counties, Tennessee. TDOT Projects # 18008-1220-14. TDOT PIN 100260.05
TO ALL CONCERNED: The application described below has been submitted for a Department of the Army (DA) Permit pursuant to Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act (CWA) for the discharge of fill material into waters of the United States (U.S.). Before a permit can be issued, certification must be provided by the State of Tennessee, pursuant to Section 401(a)(1) of the CWA, that applicable water quality standards will not be violated. The applicant has applied for the required certification.
APPLICANT: Tennessee Department of Transportation 505 Deaderick Street, Suite 900, J.K. Polk Building Nashville, Tennessee 37243
LOCATION: The 3.2-mile SR-28 (US-127, South York Highway) widening project begins near North Lowe Road near Rinnie, and ends near Little Road, north of SR-62 (Clarkrange Monterey Highway), near Clarkrange. The project is located within Cumberland and Fentress Counties, Tennessee. Coordinates of the project beginning and ending are approximately 36.1515°, -85.0323° and 36.1947°, -85.0205°, respectively. Waters of the U.S. proposed for impact include North Prong Clear Fork Creek, unnamed tributaries to Clear Creek, unnamed wetlands, and unnamed open water ponds. The project is located within the Emory River Watershed (HUC-8: 06010208).
PROJECT DESCRIPTION: The Tennessee Department of Transportation (TDOT), in cooperation with the Federal Highway Administration (FHWA), is proposing to widen SR-28 (US-127, South York Highway) in Cumberland and Fentress Counties. The project involves widening the roadway from an existing two-lane highway to a highway with a proposed typical section consisting of one to two (1 to 2) 12 ft. wide travel lanes and one (1) 4 ft. to 10 ft. wide shoulder in each direction. Much of the widened highway will be located on new alignment, located immediately east from the existing highway. Additionally, the proposed typical section at and adjacent to the proposed SR-28 intersection with SR-62 (Clarkrange Monterey Highway) consists of curb and gutter, one (1) 5 ft. wide sidewalk in each direction, and one (1) 12 ft. wide center turn lane. The project scope includes all associated drainage improvements. The estimated time for completing this project is four years.
In order to facilitate the project, the discharge of fill material is proposed at twelve (12) intermittent or perennial stream locations, eight (8) wetlands, and two (2) open water ponds. A total of 5,136 linear feet of streams (0.64 acre), 1.71 acres of wetland, and 0.57 acre of open water ponds would be permanently impacted by the proposed discharge of fill material related to the roadway improvements. As part of the project, TDOT proposes to construct a new span bridge over Clear Creek, with no permanent or temporary impacts proposed within the stream channel. The new span bridge would be located to the southeast of the existing highway bridge over Clear Creek. Additionally, the applicant anticipates temporary impacts to wetlands and streams due to the proposed discharge of fill material related to the relocation of various utilities, required as part of the roadway project. Additionally, the proposal includes the discharge of temporary fill material associated with Erosion Prevention and Sediment Control (EPSC). A complete set of project drawings for this public notice is located at: https://www.lrn.usace.army.mil/Media/Public-Notices/
PURPOSE AND NEED: According to the permit application, the primary purpose of the proposed project is to develop a transportation solution that improves safety for vehicles and pedestrians, reduces travel delays through traffic, enhances regional and local economic development opportunities, and improves transportation linkages in the Upper Cumberland region of Tennessee. The needs for the project are the lack of local and regional access that is needed to connect people and locations. There are currently roadway design deficiencies, and there are also safety concerns due to a high number of crashes along US-127 (SR-28) in the project area. The traffic numbers are increasing, while the level of service for the area is decreasing.
AVOIDANCE AND MINIMIZATION OF IMPACTS TO WATERS OF THE U.S.: According to the applicant, efforts were made during the planning and design phases of this project to avoid impacts to waters of the U.S. to the extent practicable, and to minimize impacts that were not avoidable. Through completion of the Final Environmental Impact Statement (FEIS), as required by the National Environmental Policy Act (NEPA), the applicant examined alternatives to the proposed project, including the No-Build Alternative and five (5) Build Alternatives such as: an eastern alternative, three (3) western alternatives, and an alternative with a total four (4) travel lanes throughout the project length. According to the applicant, the selected alternative satisfies the purpose and need, and the selection is based upon public input and a comparison of potential impacts as presented in the approved FEIS. The application indicates that the selected alternative is the least environmentally damaging practicable alternative.
The proposed project’s roadway alignment has been selected in order to avoid existing environmental features to the greatest extent practicable. Where environmental features are unavoidable, the proposed project has been designed to ensure that impacts to these features have been minimized as much as possible. Where practicable, span bridges or bottomless culverts have been proposed instead of box culverts; implementing these structure types minimizes the amount of stream channel impact, allows the existing natural channel to flow under the proposed roadway system, and minimizes impacts to fish and aquatic species passage. The proposed new span bridge over Clear Creek has been designed to completely avoid impacts within the channel of Clear Creek, and retains un undisturbed, 60-wide vegetated buffer along the banks of Clear Creek. Additionally, the bridge incorporates design features to prevent runoff and vehicular spills from being introduced to Clear Creek. The proposed culvert structure at Stream 6 is to be embedded within the stream channel to allow for fish and aquatic species passage; this embedded structure is proposed to be backfilled with natural channel materials. Any riprap channel protection placed within the stream channels at the inlet or outlet of culverts would be placed to mimic the existing contours of the stream channel, to prevent stream loss within riprap areas.
To minimize erosion and avoid sediment release into waters of U.S., three phases of construction are designed and included in the construction plans. Only 50 acres of land disturbance are proposed at a time and all in-water construction activities would be done in the dry and separated from flowing water, to the maximum extent practicable. Erosion Prevention and Sediment Control (EPSC) best management practices (BMP) are to be installed and maintained during roadway construction, thus reducing the likelihood of sediment and debris deposition from the project site into adjacent environmental features during construction activities. High visibility fencing would be installed during construction to ensure that only authorized impacts to waters of the U.S. occur.
COMPENSATORY MITIGATION: To compensate for unavoidable permanent impacts to 5,136 linear feet of streams, the applicant proposes to offset 1,262.3 stream functional feet via a combination of stream mitigation bank credit purchase and on-site permittee-responsible compensatory mitigation. The proposed stream mitigation bank is the Mud Creek Stream Mitigation Bank located in Morgan County, Tennessee. The proposed on-site permittee-responsible compensatory mitigation is located on Streams 6 and 11, located within the limits of the highway project. The proposed “State Route 28 Compensatory Mitigation Plan” includes the restoration of two (2) unnamed tributaries to Clear Creek, totaling 1,707.9 linear feet, projected to generate a total of 161.8 stream functional feet. The total protected area associated with the mitigation project, including vegetative stream buffers, would total approximately 10.71 acres, and would be protected into perpetuity. The existing streams have been historically altered through land uses including unsustainable logging, which have left the streams in a degraded state. The mitigation project goals and objectives propose to address the impairments to the project streams, restoring streams to a more natural and sustainable condition. Restoration activities would include channel realignment and reshaping, placement of in-channel log and boulder structures, corrective floodplain design, streambank stabilization, and native vegetation plantings. The restoration effort is expected to improve stream conditions, water quality, and aquatic species habitat. USACE is currently reviewing the applicant’s permittee-responsible compensatory mitigation plan.
To compensate for unavoidable permanent impacts to 1.71 acres of wetland, the applicant proposes debiting, at a 2:1 ratio, 3.46 acres from available wetland credits from the Tennessee Wildlife Federation’s Tennessee Mitigation Fund wetland in-lieu fee program. The proposed wetland mitigation credits would be obtained from the program’s Upper Tennessee River Service Area.
PUBLIC INTEREST REVIEW/CUMULATIVE EFFECTS: The decision whether to issue a permit will be based on an evaluation of the probable impacts including cumulative impacts of the 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 work, must be balanced against its reasonably foreseeable detriments. All factors, which may be relevant to the work, will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore 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. In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, Environmental Protection Agency, under authority of Section 404(b)(1) of the CWA(40 CFR Part 230).
SOLICITATION OF COMMENTS: The U.S. Army Corps of Engineers (USACE) 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 the proposed road improvement and widening project. Any comments received will be considered by the USACE 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 (EA) and/or an Environmental Impact Statement pursuant to NEPA. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. An EA will be prepared by this office prior to a final decision concerning issuance or denial of the requested DA Permit.
HISTORIC AND CULTURAL RESOURCES: TDOT, acting on behalf of the Federal Highway Administration (FHWA), has been identified as the lead agency for complying with Section 106 of the National Historic Preservation Act (NHPA).
TDOT completed a historic/ architectural assessments and subsequent addendums for the project area dated November 2001, March 2006, and September 2009. These assessments were submitted to the State Historic Preservation Office (SHPO). Via letter dated July 31, 2018, the SHPO stated “after considering the documentation submitted, it is our opinion that there are no National Register of Historic Places listed or eligible properties affected by this undertaking… We have no objections to your proceeding with your undertaking.” After a review of the September 10, 2019 Right-of-Way (ROW) Plans, the TDOT historian provided the following comment: “Based on the information provided in the ROW plans, dated 9/10/19, the TN-SHPO letter dated July 31, 2018 remains valid. There are no historic resources that would be affected by this project.”
Archaeological studies were completed for this project, including Phase I Archaeological Studies dated January 2007 and December 2009. These materials were submitted to the SHPO. Via letters dated October 26, 2010 and February 15, 2012, the SHPO stated “based on the information provided, we find that the project area contains no archaeological resources eligible for listing in the National Register of Historic Places.” After review of the September 10, 2019 Right-of-Way plans, the TDOT Archaeologist provided the following comment: “Based on the information provided, the SHPO clearance letter for the parent PIN 100260.00 [SR-28 from north of I-40 to SR-62] dated 12/26/2010 and 107774.00 [SR-28 from SR-62 to three miles north of Grimsley] dated 2/15/2012 remain valid for this project". Updated Native American Consultation was conducted by TDOT on August 30, 2019. No tribes responded.
USACE invites responses to this public notice from Native American Tribes or tribal governments; federal, state, and local agencies; historical and archeological societies; and other parties likely to have knowledge of or concerns regarding historic properties and sites of religious and cultural significance at or near the project area. Any substantive comments from this public notice will be provided to TDOT, for consideration of potential effects to historic and cultural resources for Section 106 compliance. If USACE or TDOT determines that consultation is required, TDOT would consult with the Tennessee Historic Commission (SHPO) and Native American Tribes in accordance with Section 106 of the National Historic Preservation Act, as appropriate. TDOT is required to submit all applicable Section 106 documentation to USACE prior to final permit decision.
ENDANGERED/THREATENED SPECIES REVIEW: TDOT, acting on behalf of the FHWA, has been identified as the lead agency for conducting environmental review under Section 7 of the Endangered Species Act (ESA). TDOT completed an ESA records review, by searching the TDEC Division of Natural Areas, Endangered Species Database, on multiple dates, most recently on June 16, 2020. Additionally, the applicant conducted ESA field reviews on June 25, 2019. Accordingly, effects determinations were made by the applicant for each species. The field review, records review, and accompanying effects determinations provide documentation of the potential effects of the project on endangered and threatened federally listed species within the action area. Listed species potentially located within a four-mile radius of the project sites include:
| Species Nomenclature |
Federal Status |
| Plants |
|
| White fringeless orchid (Platanthera integrilabia) |
Threatened |
| Mammals |
|
| Gray bat (Myotis grisescens) |
Endangered |
| Indiana bat (Myotis sodalis) |
Endangered |
| Northern long-eared bat (Myotis septentrionalis) |
Threatened |
The above described ESA documentation was provided to the USFWS for consultation. TDOT made a “no effect” determination for the white fringeless orchid indicating “present habitat unsuitable” and “BMPs are sufficient to protect species”. In order to determine the presence of bats, a mist netting survey was performed between July 9 and July 23, 2018, at 12 sites along the highway project corridor. Efforts resulted in the capture of 28 bats, including nine (9) gray bats and one (1) northern long-eared bat. The survey information was provided to the U.S. Fish and Wildlife Service (USFWS) on January 8, 2019. On February 8, 2019, the USFWS concurred with TDOT’s determination of “not likely to adversely affect” for all three (3) bat species and wrote “We are unaware of any federally listed or proposed species that would be impacted by the project. Therefore, based on the best information available at this time, we believe that the requirements of section 7 of the Endangered Species Act (Act) of 1973, as amended, are fulfilled for all species that currently receive protection under the Act.”
OTHER APPROVALS: Before a permit may be issued, water quality certification must be provided by the Tennessee Department of Environment and Conservation (TDEC) pursuant to Section 401(a)(1) of the CWA (33 U.S.C. 1341), that applicable water quality standards will not be violated. Other federal, state, and/or local approvals may be required for the proposed work.
REQUEST FOR PUBLIC HEARING: Any person may request a public hearing. The request must be submitted in writing to the District Engineer within the designated comment period of the notice and must state the specific reasons for requesting the public hearing.
COMMENT PERIOD: Written statements received in this office within 30 days from the date of this notice will become a part of the administrative record and will be considered in the determination. Any response to this notice should be directed to William Worrall, Transportation Program Manager, Nashville District U.S. Army Corps of Engineers, Regulatory Division at: william.e.worrall@usace.army.mil, 615-369-7513, or at the above address.
/s/
Joshua W. Frost
Chief, Technical Services Branch
Regulatory Division
U.S. Army Corps of Engineers