Public Notice No. 20-44; File No. LRN-2004-01826 – Proposed discharge of fill material into waters of the United States

SUBJECT: Proposed discharge of fill material into waters of the United States to facilitate construction of the Newport Bypass, SR-35 (US-321), located near the City of Newport, in Cocke County, Tennessee and the Anderson Branch compensatory mitigation site located near Dandridge, Jefferson County, Tennessee.

Public Notice No. 20-44                                   
Nashville District            
Application No.  LRN-2004-01826                   
Date: October 2, 2020; Expires: November2, 2020
Please address comments to:   
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 construction of the Newport Bypass, SR-35 (US-321), located near the City of Newport, in Cocke County, Tennessee and the Anderson Branch compensatory mitigation site located near Dandridge, Jefferson County, Tennessee.  TDOT Projects # 15008-1229-04 and 45945-1694-14.  TDOT PINs 101399.00 and 104027.50

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 5.3-mile project begins near the eastern terminus of Thinwood Drive at US-70 (SR-9/SR-35) and ends at the existing US-321 (SR-35) near Saint Tide Hollow Road, located near the City of Newport, Cocke County, Tennessee. Coordinates of the project beginning and ending are approximately 35.9753°, -83.2192° and 35.9873°, -83.1434°, respectively.  Waters of the U.S. proposed for impact include the Pigeon River, French Broad River, unnamed tributaries, unnamed wetlands, and unnamed open water pond.  The proposed off-site permittee-responsible compensatory mitigation site at Anderson Branch, is located near Dandridge, Jefferson County, Tennessee.  The mitigation site is centered at approximate coordinates 35.9210°, – 83.3834°.  The road project and the compensatory mitigation site are both located within the Lower French Broad River Watershed (HUC-8: 06010107).

PROJECT DESCRIPTION:  The Tennessee Department of Transportation (TDOT), in cooperation with the Federal Highway Administration (FHWA), is proposing to construct a bypass around the City of Newport, in Cocke County, Tennessee.  This project would realign State Route (SR) 35, on completely
new alignment, around the City of Newport, bypassing the circuitous and narrow existing US-70 (SR-9/SR-35) through town, linking the west side near downtown to existing US-321 (SR-35) east of the French Broad River and eastward to Greene County.  The alignment for the Selected Alternative begins near the eastern terminus of Thinwood Drive at US-70 (SR-9/SR-35), crosses the county industrial park and the Pigeon River, then proceeds to Smith Street; from Smith Street, it extends generally eastward before crossing the French Broad River, and ending at the existing US-321 (SR-35) near Saint Tide Hollow Road. The project is approximately 5.3 miles in length and is divided into two sections, Section 1 and Section 2.  Section 1 includes a 1.7-mile portion of the corridor from the begin point at US-70 (SR-9/SR-35) east to a point just over the Pigeon River. Section 2 includes a 3.6-mile portion of the corridor from a point just east of the Pigeon River east to the project’s end point along US-321 (SR-35) near Saint Tide Hollow Road.  The typical cross section design through Section 1 would include two 12-foot traffic lanes in each direction, a 12-foot center turn lane, 12-foot outside shoulders (10-foot paved/2-foot unpaved), with open roadside ditches for drainage within approximately 250 feet of right-of-way. The design speed through Section 1 would be 55 miles-per-hour.  Section 2 (approximately 3.6 miles) would consist of two 12-foot traffic lanes in each direction, a 48-foot depressed median and 12-foot outside shoulders (10-foot paved/2-foot unpaved) within a minimum 250-foot right-of-way.  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 ten (10) intermittent or perennial stream locations, (18) wetlands, and one (1) open water pond. A total of 2,474 linear feet of streams (0.35 acre), 9.56 acres of wetland, and 0.11 acre of open water pond would be permanently impacted by the proposed discharge of fill material related to the roadway improvements.  A total of 0.28 acre of wetland would be temporarily impacted, then restored, during construction of the roadway improvements. A total of 0.24 acre of the Pigeon River and French Broad River would be temporarily impacted due to temporary haul roads to facilitate new bridge construction.  A total of up to 0.03 acre of wetlands and streams 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 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 improve traffic flow, correct route deficiencies, improve safety of the highway, and provide route continuity to the existing four-lane segments on either end.  The project will also provide
new crossings of the Pigeon River and the French Broad River.  SR-35 improvements were requested by House Resolution 157, passed by the Tennessee State Legislature in 1994.  Some of the anticipated beneficial effects from the construction of the project include: (1) improved local and regional 
accessibility; (2) improved safety and operating conditions in the study area; (3) increased traffic capacity; and (4) enhancement of future planned growth by local or regional land use planning agencies.

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 Environmental Assessment and Finding of No Significant Impact, as required by the National Environmental Policy Act (NEPA), the
applicant examined alternatives to the proposed project, including the No-Build Alternative and four Build Alternatives.  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 Environmental Assessment.

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.  Proposed roadway embankment slope lines have been reduced where possible, thus minimizing impact to adjacent environmental features.  Also, 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. Additionally, proposed box culvert structures at STR-1, STR-5, and STR-8 are to be embedded within
the stream channels to facilitate fish and aquatic species passage; these embedded structures are proposed to be back-filled 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.  A total of 0.28 acre of wetland impacts would be temporary, rather than permanent.  Within the area of temporary wetland impact, the applicant proposes to restore the wetlands by removing and stockpiling the natural
topsoil prior to construction, restoring natural contours and spreading native topsoil to pre-construction elevations at the end of construction, seeding with native riparian seed mix, planting of native trees, and installation of permanent signage to protect the restored area.

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. Standard Best Management Practices are proposed to reduce erosion and sedimentation.  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 2,474 linear feet of streams, the applicant proposes to offset 664.5 stream functional feet via off-site permittee-responsible compensatory mitigation at the Anderson Branch site, located on the Bush Brothers property near Dandridge, Jefferson County, Tennessee.  The Anderson Branch compensatory mitigation site is located in close proximity to the SR-35 Newport Bypass project, is centered at approximate coordinates 35.9210°, -83.3834°, and is within the same Lower French Broad River Watershed (HUC-8: 06010107).  Additional stream mitigation generated by the Anderson Branch site, beyond those portions of the site required for the SR-35 (Newport Bypass) project, is proposed to be utilized for approximately 11 additional nearby TDOT projects that are proposed be permitted at a future date or are currently under development by TDOT; such road projects are located within the same HUC-8 watershed, as well as within other nearby HUC-8 watersheds nearby to the mitigation site.  The proposed “STREAM MITIGATION PLAN; PIN 104027.50; BUSH BROTHERS PROPERTY NEAR
DANDRIDGE, JEFFERSON COUNTY, TN” includes the restoration, re-establishment, and/or enhancement of six streams, including Anderson Branch and tributaries to Anderson Branch.  The total protected area associated with the mitigation project, including vegetative stream buffers, would total
approximately 30.89 acres, and would be protected into perpetuity.  Nearby land use in the mitigation project area is primarily agricultural.  The existing streams have been historically altered through land uses including farming and livestock grazing, which have resulted in the streams becoming entrenched and disconnected from the adjacent floodplains.  Stream banks throughout each stream are actively eroding and undercut; minimal woody vegetative cover is present, and roots are exposed along the banks.  Degradation of the streams has been accelerated by direct livestock access. The mitigation project goals and objectives propose to address the impairments to the project streams, restoring streams to a more natural and sustainable condition.

The proposed mitigation project would consist of the restoration, enhancement, and riparian buffer vegetation planting of approximately 12,491 linear feet of degraded stream channel, which is proposed to offset a total of 5,289 stream functional feet of offsite impacts from TDOT projects.  Such offsite impacts would result from the Newport Bypass project (664.5 stream functional feet expected), as well as from approximately 11 other nearby, future TDOT construction projects (4,624.5 functional feet expected). 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.  USACE is currently reviewing the applicant’s permittee-responsible compensatory mitigation plan.

To compensate for unavoidable permanent impacts to 9.56 acres of wetland, the applicant proposes debiting, at a 2:1 ratio, 19.11 acres from available wetland credits at the Lick Creek Wetland Mitigation Bank, located in Greene County, Tennessee.  The proposed wetland impacts are within the
primary service area of the Lick Creek Wetland Mitigation Bank.

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).

In accordance with 36 CFR 800.4, a Historic Architectural Assessment and Documentation of Effect was prepared in March 1999 for the proposed Newport Bypass project. This assessment concluded that the area of potential effect contained two properties listed on the National Register of Historic
Places (NRHP) and one property eligible for listing on the NRHP.  At that time, It was determined that the Selected Alternative would not affect any architectural resources listed on or eligible for listing on the NRHP.  TDOT completed an updated historic architectural review and addendum to
the above documentation in April 2012, and submitted this documentation to the State Historic Preservation Office (SHPO).  Via letter dated May 4, 2012, the SHPO stated “based on the information provided, we find that the project area contains a cultural resource eligible for listing in the National Register of Historic Places: Beechwood Hall. We further find that the project as currently proposed will not adversely affect this resource.

Archaeological studies were completed for the Newport Bypass project, including a Phase I survey and Phase II testing, in 2001 and 2007, respectively.  The Phase II archaeological testing determined that one archaeological resource (Site 40CK192) is eligible for listing in the National Register of Historic Places (NRHP).  TDOT determined that that Site 40CK192 cannot be avoided and the SHPO concurred that Phase III data recovery was required.  Phase III archaeological recovery will be undertaken in accordance with the Memorandum of Agreement (MOA) that was executed by all affected parties on May 13, 2011 and submitted to the Advisory Council on Historic Preservation (ACHP).  In a letter dated May 23, 2011, the ACHP acknowledged receipt of the proposed project’s MOA.  Pending time extension of the MOA, and completion of the required data recovery, the requirements of Section 106 of the NHPA are expected to be fulfilled for the Newport Bypass project.

A historic/ architectural assessment was completed for the Anderson Branch mitigation site, and submitted to the SHPO in July 2019.  Via letter dated July 24, 2019, the SHPO stated “we concur that there are no architectural resources eligible for or listed in the National Register of Historic places that will be affected by this undertaking.  We have no objections to your proceeding with your undertaking.”  A Phase 1 archaeological assessment was completed for the Anderson Branch mitigation site, and submitted to the SHPO in November 2019.  Via letter dated November 21, 2019, the SHPO stated “considering the information provided, we find that no archaeological resources eligible for listing in the National Register of Historic Places will be affected by this undertaking.”

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 July 2, 2020.  Additionally, the applicant conducted ESA field reviews on August 12-13, 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:

There is no critical habitat designated within the project area.

The above described ESA documentation was provided to the USFWS for consultation. In order to determine the presence of bats, a mist netting survey was performed at the Newport Bypass project between July 24 and August 13, 2018, at six sites along the road project corridor.  Efforts resulted in the capture of 72 bats, including 29 gray bats (Myotis grisescens).  The survey information was provided to the U.S. Fish and Wildlife Service (USFWS) on
August 14, 2018.  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.  The USFWS additionally concurred with TDOT’s finding of “not likely to adversely affect”
for the gray bat based on the absence of caves within the project area, and TDOT’s commitment to implementation of water quality measures.  In regards to the Anderson Branch mitigation site, TDOT requested a list of any threatened or endangered species that may occur at that site.  Via letter
dated October 7, 2019, the USFWS stated that records do not indicate that federally listed or proposed species occur at the Anderson Branch mitigation site.  In regards to both the road and the mitigation project sites, the USFWS wrote “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.