Public Notices

Public Notice 22-03; LRN-2021-00271

USACE - Nashville District
Published March 28, 2022
Expiration date: 4/27/2022

SUBJECT:  Proposed discharge of fill material into waters of the United States to facilitate widening and improvements on a segment of SR-35 (US-411/Newport Highway) from near Sims Road in Sevier County to near SR-92 (Dickey Road) in Jefferson County, Tennessee.  TDOT Project Nos. 45007-3217-14 and 78005-3241-14.  TDOT PIN 101401.01.

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 of 1899 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.  The work also requires Tennessee Valley Authority (TVA) approval under Section 26a of the Tennessee Valley Authority Act.

APPLICANT:  Tennessee Department of Transportation
                        505 Deaderick Street, Suite 900, J.K. Polk Building
                        Nashville, Tennessee 37243

LOCATION:  The 3.8-mile roadway project begins near the intersection of Sims Road with SR-35 and ends near the intersection of Dickey Road with SR-92.  Coordinates of the project beginning and ending are approximately N. 35.9088°, W. 83.4106° and N. 35.9302°, W. 83.3513°, respectively.  Waters of the U.S. proposed for impact include Anderson Branch, Douglas Reservoir, Flat Creek, unnamed tributaries to Anderson Branch, Clear Creek, and Flat Creek, an unnamed open water feature, and unnamed wetlands.  The project is located within Jefferson and Sevier Counties, Tennessee, within the Douglas Reservoir watershed (HUC-8: 06010107-Lower French Broad). 

PROJECT DESCRIPTION:  The Tennessee Department of Transportation (TDOT), in cooperation with the Federal Highway Administration (FHWA), is proposing to widen SR-35 (US-411/Newport Highway) at the above-described location in Jefferson and Sevier Counties, Tennessee.  The project involves widening the roadway from an existing two-lane highway to a five-lane facility mostly along new alignment.  The typical roadway cross section includes four 12-foot travel lanes (two in each direction) with 12-foot shoulders on both sides, a 12-foot wide median, and guardrail as needed.  The project scope includes all associated drainage improvements.  The estimated time for completing this project is five years.  

In order to facilitate the project, the discharge of fill material is proposed within ten (10) perennial or intermittent streams, six (6) ephemeral streams, five (5) wetlands, and two (2) open water features.  A total of 6,332 linear feet of streams (1.183 acre), 0.498 acre of wetlands, and 1.068 acres of open water features would be impacted by the proposed discharge of fill material related to the roadway improvements.  An estimated total of up to 565 linear feet of streams (0.134 acre), 0.052 acre of wetland, and 0.015 acre of open water feature would be temporarily impacted by 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 the installation and maintenance of erosion prevention and sediment control (EPSC) measures.  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 purpose of the proposed project is to improve traffic operations along this section of SR-35 to accommodate future traffic projections and provide an acceptable Level of Service (LOS) along the facility through 2037.  The need for the project relates to deficiencies in the current roadway design including, inadequate capacity for existing and future traffic resulting in poor LOS, roadway deficiencies as displayed in substandard horizontal and vertical geometrics, and an inadequate cross section not consistent with current design standards.  In addition, the project is needed to assist in system linkage to the other sections of SR-35 that are already constructed or planned for improvement.  The proposed project would help bring SR-35 up to current design standards by eliminating geometric deficiencies from vertical and horizontal clearance, and a narrow cross-section; and assist in the overall improvements to SR-35 corridor in Sevier, Jefferson, and Cocke Counties.  

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. The applicant examined multiple alternatives to the proposed project, including the No-Build Alternative and three (3) off-site Build Alternatives along new alignments.  According to the applicant, widening of the existing facility along the current alignment was deemed unfeasible due to numerous geometric constraints along the existing road, including streams, residential areas, and steep topography.  According to the applicant, the selected alternative satisfies the project purpose and need, and was selected as it was found to be 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.  To minimize impacts to streams and wetlands, roadway side slopes were reduced, while maintaining road safety.  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 box culverts on STR-3, STR-4, STR-6, and STR-7 are to be embedded within the stream channel and backfilled with natural channel materials, and the proposed structures at STR-A and STR-B are to be bottomless slab bridge culverts retaining natural substrate stream beds within the structures, all to allow for fish and aquatic species passage.  Any riprap channel protection placed within the stream channels 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 any time, and all in-channel construction activities would be completed in the dry and separated from flowing water by using temporary cofferdams, cribs, or stream diversions as appropriate.  Erosion Prevention and Sediment Control (EPSC) best management practices (BMPs) are to be installed and maintained during roadway construction to reduce the likelihood of erosion and migration of sediment from the project site into adjacent environmental features.  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 5,978 linear feet of streams, the applicant proposes a combination of on-site permittee-responsible compensatory mitigation (PRM) and offsite permittee-responsible compensatory mitigation.  The proposed on-site permittee-responsible compensatory mitigation is located on STR-9, located within the limits of the highway project.  The proposed on-site compensatory mitigation plan includes the in-kind replacement of an unnamed tributary to Anderson Branch totaling 278 linear feet of constructed stream channel.  The existing stream has been historically altered by agricultural land use, prior highway construction, and management of the highway right-of-way, which has left the stream in a degraded state.  The mitigation project proposes to address these impairments while providing in-kind replacement for the proposed project-related impacts to STR-9.  No mitigation credits are proposed to be generated through this stream relocation; the relocation would only be in-kind replacement of the stream to be impacted by the roadway improvements.  The mitigation project, including vegetated stream buffers, would be protected within the highway right-of-way, and marked with appropriate “Do Not Mow” signage. 

The proposed off-site permittee-responsible compensatory mitigation is located at two separate locations, the previously approved Clear Creek/Hall Branch PRM site and the previously approved Anderson Branch PRM site, both located nearby in Jefferson County.  The approved “Clear Creek and Hall Branch Mitigation Plan” (LRN-2007-02348, PIN 104027.01) includes the restoration, re-establishment, and/or enhancement of three tributaries of Clear Creek, Hall Branch, and a tributary of Hall Branch, totaling 5,262 linear feet of degraded stream channel.  Restoration and enhancement activities would include improving stream hydrology (overland and subsurface connections and processes), removal of impoundments and pipes, floodplain inundation and storage, reducing erosion and improving sediment continuity, and providing for riparian succession.  The approved “STREAM MITIGATION PLAN; PIN 104027.50; BUSH BROTHERS PROPERTY NEAR DANDRIDGE, JEFFERSON COUNTY, TN” (LRN-2004-01826, PIN 104027.50) includes the restoration, re-establishment, and/or enhancement of six streams, including Anderson Branch and tributaries of Anderson Branch, totaling 9,254 linear feet of degraded stream channel.  Restoration and enhancement activities would include channel realignment and reshaping, reshaping of channel banks, placement of in-channel log and boulder structures, installation of riffles and pools, corrective floodplain design, streambank stabilization, installation of fencing, and native vegetation plantings.  The restoration effort is expected to improve stream conditions, water quality, and aquatic species habitat.  The USACE is currently reviewing all of the applicant’s permittee-responsible compensatory mitigation plans for use with this proposed roadway project.

To compensate for unavoidable permanent impacts to 0.498 acre of wetlands, the applicant proposes debiting, at a 2:1 ratio, 1.22 wetland mitigation credits from the Lick Creek Wetland Mitigation Bank, located in Greene County, Tennessee.  The proposed wetland impacts are within this bank’s 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).  

A Programmatic Agreement (PA) among the FHWA, TDOT, the Tennessee State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP) regarding federally funded transportation projects was executed on July 30, 2021.  The applicant has indicated that Section VII.D.3 of the PA applies to the proposed project and no additional review or documentation is necessary at this time.  Section VII.D.3 of the PA states “Additional Section 106 consultation shall not be required if less than 10 years have passed since the full project survey for historic properties, not including archaeological resources, was completed and concurred with by SHPO, or Right of Way (ROW) has been authorized.”  The USACE has requested clarification from TDOT regarding the applicability of the cited section of the PA.

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/TDOT determines that consultation is required, USACE/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 Federal Highway Administration (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 January 5, 2022.  Additionally, the applicant conducted ESA field reviews in February and March 2020.  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.  There is no critical habitat designated within the project area.  According to the records review, federally listed species potentially located within a four-mile radius of the project site include:

The above-described ESA documentation was provided to the U.S. Fish and Wildlife Service (USFWS) for consultation.  In order to determine the presence of bats, a mist netting survey was performed between July 31 and August 9, 2018, at three sites along the roadway project corridor.  Efforts resulted in the capture of two bats, representing two non-listed species, and the survey information was provided to the USFWS.  On October 17, 2018, the USFWS concurred with TDOT’s determination of “not likely to adversely affect” for the Indiana bat and northern long-eared bat based on the negative survey results.  Due to the time that had passed, by letter to the USFWS dated February 4, 2020, TDOT requested re-coordination of the project.  By letter dated February 14, 2020, the USFWS restated their concurrences as stated above and indicated that the 2018 bat survey will be valid until April 1, 2024.  The USFWS also wrote “We are not aware of any federally listed or proposed species that would be impacted by this 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.  The Public Notice serves as the notification to the Administrator of the Environmental Protection Agency (EPA) pursuant to section 401(a)(2) of the Clean Water Act.  The work also requires approval from the Tennessee Valley Authority (TVA) pursuant to Section 26a of the TVA Act.  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 John Price, Nashville District Corps of Engineers, Regulatory Division, at the above address, at 865-356-6599, or via email: john.c.price@usace.army.mil.  

                                                                                     /s/                                                                     

                                                                                                     Joshua W. Frost, Chief
                                                                                                    Technical Services Branch
                                                                                                    Regulatory Division, Nashville District
                                                                                                    U.S. Army Corps of Engineers