HomeMy WebLinkAboutWQC 2021-869-29-JBT-A Asherwood
I NDIANA D EPARTMENT OF E NVIRONMENTAL M ANAGEMENT
We Protect Hoosiers and Our Environment.
100 N. Senate Avenue • Indianapolis, IN 46204
(800) 451-6027 • (317) 232-8603 • www.idem.IN.gov
Eric J. Holcomb Brian C. Rockensuess
Governor Commissioner
An Equal Opportunity Employer
Recycled Paper
Section 401 Water Quality Certification
IDEM Number: 2021-869-29-JBT-A
USACE Number: LRL-2021-583-sjk
Project Name: Asherwood Development
Authority: 327 IAC 2. CWA Sections: 301, 302, 303, 306, 307, & 401
Date of Issuance: December 21, 2021
Impacts must be completed by: December 21, 2023
Approved:
__________________________________
Brian Wolff, Branch Chief
Surface Water and Operations
Office of Water Quality
Applicant / Permittee: Gradison Land Development
Attention: Mark Gradison
6330 East 75th Street
Indianapolis, IN 46250
Agent: Davey Resource Group
Attention: Tomás Fuentes-Rohwer
5641 West 73rd Street
Indianapolis, IN 46278
Project Location: Hamilton County
Latitude 39.9368, Longitude -86.1866
On the west side of Ditch Road approximately 0.5 mile north
of 96th Street.
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Project Description: Inundate 0.269 acre of emergent wetland with water from the formation
of a pond.
Relocate 414 linear feet of stream into 215 linear feet of pipe and 179
linear feet of open channel.
The purpose of the project is to construct a housing development.
Purchase 235 linear feet of stream credits and 0.32 acre of wetland
credit from the Indiana Stream and Wetland Mitigation Program.
Authorized Impacts
STREAM IMPACT(S) Length of Impact (linear feet)
Type of Impact: Ephemeral Intermittent Perennial
Stream Relocation 414
Encapsulation 215
WETLAND & OPEN WATER IMPACT(S) Area of Impact (acres)
Type of Impact: Open
Water Emergent Scrub/Shrub Forested
Inundation with water from conversion to pond. 0.269
Project Mitigation
IN-LIEU FEE STREAM CREDITS Linear Feet
Ephemeral Intermittent Perennial
Credits (Upper White Service Area): 235
IN-LIEU FEE WETLAND CREDITS Acres
Emergent Scrub/Shrub Forested
Credits (Upper White Service Area): 0.32
ONSITE PERMITEE RESPONSIBLE MITIGATION Stream
(Linear Feet)
Creation (Hamilton Co. Latitude 39.9367, Longitude -86.186): 179
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Application Signed: October 10, 2021
Application Received: October 11, 2021
Based on available information, it is the judgment of this office that the impacts from the
proposed project as outlined by this Section 401 Water Quality Certification and
described in your application will comply with the applicable provisions of 327 IAC 2, 40
CFR 121 (36 FR 22487, Nov. 25, 1971; redesignated at 37 FR 21441, Oct. 11, 1972;
further redesignated at 44 FR 32899, June 7, 1979), and Sections 301, 302, 303, 306,
and 307 of the Clean Water Act if you comply with the conditions set forth below.
Therefore, subject to the following conditions, the Indiana Department of Environmental
Management (IDEM) hereby grants Section 401 Water Quality Certification for the
project described in your application. Any changes in project design or scope not
detailed in the application described above or modified by this Section 401 Water
Quality Certification are not authorized.
Failure to comply with the terms and conditions of this Section 401 Water Quality
Certification may result in enforcement action against you. If an enforcement action is
pursued, you could be assessed up to $25,000 per day in civil penalties. You may also
be subject to criminal liability if it is determined that the Section 401 Water Quality
Certification was violated willfully or negligently.
Conditions of the Section 401 Water Quality Certification
1.0 General
(a) Implement the project as depicted and described in the application for Section
401 Water Quality Certification as modified by the conditions of this
certification.
(b) Per 33 CFR 325.6(c), the federal license shall be valid for no more than five
years. Therefore, all approved discharges must be completed within the term
of the valid federal permit.
(c) Per IC 13-14-2-2, the department may inspect public or private property to
inspect for and investigate possible violations of environmental management
laws. Therefore, the commissioner or an authorized representative of the
commissioner (including an authorized contractor), upon the presentation of
credentials must be allowed:
(1) to enter your property, including impact and mitigation site(s);
(2) to have access to and copy at reasonable times any records that must be
kept under the conditions of this certification;
(3) to inspect, at reasonable times, any monitoring or operational equipment
or method; collection, treatment, pollution management or discharge
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facility or device; practices required by this certification; and any mitigation
wetland site;
(4) to sample or monitor any discharge of pollutants or any mitigation site.
(d) The application referenced by this certification was not reviewed for the
adequacy of the engineering design. All measures included in the application
as well as those referenced by this certification should be evaluated as to their
feasibility by a qualified individual with structural measures designed by a
qualified engineer.
2.0 Mitigation
Per 327 IAC 2.1, the goal of Indiana’s water quality standards is to restore and
maintain the chemical, physical and biological integrity of the state’s waters.
Mitigation of dredge and fill impacts to Indiana’s water resources is required to
maintain water quality.
(a) Per 40 CFR 230.91; 33 CFR 332.3; 327 IAC 2-1-1.5, implementation of the
submitted and approved mitigation plan is to ensure the water quality functions
of the impacted waters are replaced, preventing a reduction in water quality.
Therefore, implement the mitigation plan as described in the application
(referred to collectively hereinafter as the “mitigation plan”), and as modified by
the conditions of this certification.
(b) Per 33 CFR 332.3 (m): By constructing the mitigation within the same
timeframe as the construction of the project, the temporal losses to water
quality functions can be reduced. Therefore, complete activities to implement
the mitigation plan within two (2) years of the effective date of this certification.
These activities include excavation, grading, installation of hydrologic controls,
and planting.
(c) Per 33 CFR 332.7 (a), the site must be protected to ensure protection of water
quality resources. Therefore, complete an environmental notice and submit a
signed and recorded copy with the request for release from monitoring
requirements. A copy of a properly recorded deed restriction or conservation
easement protecting the mitigation site(s) may be used to satisfy this condition.
(d) Per 33 CFR 332.3 (f), the amount of mitigation required must be listed within
the permit.
(1) Provide to IDEM proof of the purchase of 0.32 acre of in-lieu fee
wetland credit and 235 linear feet of in-lieu fee stream credits in the
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Upper White Service Area from the Indiana Stream and Wetland
Mitigation Program (IN SWMP):
(A) Within one (1) year of the date of this authorization;
(B) Before authorized impacts to waters of the State.
Be aware credits may not be available at all times.
Failure to purchase credits by the required date may result in additional
mitigation requirements to compensate for temporal loss.
3.0 Stream Mitigation Success Criteria
Per 33 CFR 332.5; 327 IAC 2-1-1, minimum success criteria must be set to ensure
the functions of the wetland mitigation adequately replace the functions and water
quality benefits the impacted wetland was providing. Therefore, the following
success criteria must be demonstrated.
Ensure that the stream mitigation site meets the following success criteria for at
least two (2) consecutive years:
(a) The stream must consist of 179 linear feet of created stream channel.
(b) Establish 0.37 acre riparian buffer in accordance with the mitigation plan.
(c) Stream banks exhibit 90% vegetative cover.
(d) Ensure all stream banks are stable and show no signs of gully erosion from
overland flow or excessive bank scour from stream flows.
(e) The mean channel width, depth, channel slope, sinuosity, bankfull
dimensions, and bank characteristics of the stream channel mitigation
areas shall match the mitigation design plans within the range of natural
variability.
(f) No ten (10) meter square area shall have a combined surface areal
coverage greater than 10% of any combination of the following:
(1) Typha spp. (cattail)
(2) Open water
(3) Bare ground
(4) Panicled aster (Aster simplex)
(5) Barnyard grass (Echinochloa crus-galli)
(6) Glossy buckthorn (Rhamnus frangul)
Bare ground is defined as an area with less than 10% areal vegetative
cover. If the area of the stream channel below the ordinary high water
mark (OHWM) has less than 10% vegetative cover it shall not be
considered bare ground.
(g) The mitigation stream and adjacent riparian area are free of:
(1) Lythrum salicara (purple loosestrife)
(2) Phragmites australis (common reed)
(3) Garlic mustard (Alliaria petiolata)
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(4) Johnson grass (Sorghum halepense)
(5) Elaeagnus umbellate (autumn olive)
(6) Elaeagnus angustifolia (Russian olive)
(7) Rosa multiflora (multiflora rose)
(8) Narrow-leaved cattail (Typha angustifolia)
(9) Phalaris arundinacea (reed canary grass)
(10) Lonicera maackii (honeysuckle)
(11) Tree-of-heaven (Ailanthus altissima)
(12) White mulberry (Morus alba)
(13) Lonicera morrowii (honeysuckle)
(14) Lonicera tatarica (honeysuckle)
(h) Permanently and clearly identify on-site all mitigation areas with “Do Not
Mow of Spray – Restoration Area” signs placed no further apart than every
100 feet after construction. If the mitigation areas to be established are
adjacent to or near existing mitigation areas, then permanent
stakes/markers must distinguish the new mitigation areas from the existing
mitigation areas.
(i) Any additional success criteria specified in the mitigation plan and not
superseded by this 401 WQC.
4.0 Mitigation Monitoring
Per 33 CFR 332.6, 327 IAC 2-1-1: Mitigation monitoring is required to ensure that
the mitigation site is meeting the success criteria necessary to demonstrate that
the functions and water quality values are being replaced successfully. Therefore,
the following monitoring steps must be completed.
(a) Submit as-built plans within three (3) months of completing the construction of
the mitigation. The as-built plans shall include:
(1) Final grade elevations at one foot contours.
(2) Plan view and cross sections.
(3) A longitudinal profile, and lateral cross sections at the apex of each
meander and at the midpoint between meanders for relocated streams.
(4) A cross section along the primary axis and secondary axis for wetlands.
(5) Locations and elevations of structures (e.g., culvert inverts, outfalls, inlets,
berms, piezometers, wells, etc.).
(6) Markers specified in Condition 3.0(h) above.
(7) The species and quantities of each species that were planted. Deviations
from the approved mitigation plan must be highlighted and explained.
(b) Monitor the mitigation site annually for a minimum period of two (2) continuous
years to determine if it is meeting the success criteria. Extended monitoring
may be required. Monitoring reports must be submitted to this office no later
than December 31st of each year until released from monitoring by this office.
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(c) Start mitigation monitoring the first full growing season after construction.
(d) Mitigation monitoring reports must include the following:
(1) The IDEM identification number.
(2) Discussion of hydrology at the mitigation site.
(3) Discussion of plant community development at the mitigation site.
(4) Discussion of methods or means used to determine compliance with the
success criteria.
(5) Photographs representative of the mitigation site and sampling points.
(6) Confirmation that areas designated for preservation have remained
undisturbed.
(7) Identification of any problems with meeting the success criteria.
(8) Corrective actions for identified problems.
(e) Once you believe that the site meets or exceeds all of the success criteria, you
may submit a proposed final monitoring report to IDEM and suspend
monitoring. IDEM will not release the site until you have demonstrated, through
monitoring reports that the site is compliant. If IDEM confirms that the
mitigation site meets or exceeds all of the success criteria, IDEM will notify you
that the mitigation is complete and that you may permanently discontinue
monitoring. If the site does not meet the specified success criteria for the final
monitoring report, you will monitor the site for an additional two (2) years.
Extended monitoring may constitute the sole corrective action if IDEM believes
that the site needs more time to meet the success criteria. Other corrective
actions may also include additional grading, planting, relocation, or other
actions deemed necessary by IDEM to meet the success criteria.
5.0 Erosion and Sediment Control
Per 40 CFR 122.26, 327 IAC 15, the use of appropriate stormwater control
measures and maintenance thereof will prevent any sediment laden water from
migrating off site and entering waterways and wetlands, potentially impairing water
quality. Therefore, the following erosion and sediment control steps must be
completed.
(a) Implement erosion and sediment control measures on the construction site
prior to land disturbance to minimize soil from leaving the site or entering a
waterbody. Erosion and sediment control measures shall be implemented
using an appropriate order of construction (sequencing) relative to the land-
disturbing activities associated with the project. Appropriate measures include,
but are not limited to, silt fence, diversions, and sediment traps.
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(b) Monitor and maintain erosion control measures and devices regularly,
especially after rain events, until all soils disturbed by construction activities
have been permanently stabilized.
(c) Use run-off control measures, including but not limited to diversions and slope
drains. These measures are effective for directing and managing run-off to
sediment control measures and for preventing direct run-off into waterbodies.
(d) Install and make appropriate modifications to erosion and sediment control
measures based on current site conditions as construction progresses on the
site. The Indiana Storm Water Quality Manual or similar guidance documents
are available to assist in the selection of measures that are applicable to
individual project sites.
(e) Implement appropriate erosion and sediment control measures for all
temporary run-arounds, cofferdams, temporary causeways, temporary
crossings, or other such structures that are to be constructed within any waters
of the state. Minimize disturbance to riparian areas when constructing these
structures. Structures must be included in reviewed designs or approved by
IDEM prior to use. Construct temporary run-arounds, temporary cofferdams,
temporary causeways, temporary crossings, or other such structures of non-
erodible materials. Temporary crossings and causeways must be completely
removed upon completion of the project and the affected area restored to pre-
construction contours, grades, and vegetative conditions.
(f) Install stream pump-around operations in accordance with the plans and
ensure in-stream component is constructed of non-sediment producing
materials. The discharge at the outlet shall not cause erosion of the stream
bottom and banks.
(g) Direct cofferdam dewatering activities to an appropriate sediment control
measure or a combination of measures prior to discharging into a water of the
state to minimize the discharge of sediment-laden water.
(h) Ensure cut and fill slopes located adjacent to wetlands and streams (including
encapsulated streams) or that directly discharge to these aquatic features are
stabilized using rapid/incremental seeding or other appropriate stabilization
measures.
(i) Stabilize and re-vegetate disturbed soils as final grades are achieved. Initiation
of stabilization must occur immediately or, at a minimum, within the
requirements of a construction site run-off permit after work is completed. Use
a mixture of herbaceous species beneficial for wildlife or an emergent wetland
seed mix wherever possible and appropriate. Tall fescue may only be planted
in ditch bottoms and ditch side slopes and must be a low endophyte seed mix.
Stabilize the channel before releasing stream flows into the channel.
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(j) As work progresses, re-vegetate areas void of protective ground cover. Areas
that are to be re-vegetated shall use seeding and anchored mulch. If
alternative methods are required to ensure stabilization, erosion control
blankets may be used that are biodegradable, that use loose-woven/leno-
woven netting to minimize the entrapment and snaring of small-bodied
wildlife such as snakes and turtles (follow manufacturer’s
recommendations for selection and installation).
Anchor mulch. Anchoring shall be appropriate for the site characteristics such
as slope, slope length, and concentrated flows. Anchoring methods may not
include loose netting over straw, but can range from crimping of straw,
erosion control blankets as specified above that minimize wildlife
entrapment, or net free blankets. Tackifiers with mulch and hydro-mulch are
acceptable and shall be applied to the manufacturer specifications.
6.0 Construction
Per 327 IAC 2-1-6(b)(4) the protection of existing uses for aquatic life is required
and, per 327 IAC 2-1.3-2 (4) the utilization of best management practices helps
ensure the protection of existing uses. Therefore, the following best management
practices are required.
(a) Avoid in stream channel work during the fish spawning season (April 1 through
June 3).
(b) Clearly mark wetlands and streams that are to remain undisturbed on the
project site.
(c) Restrict channel work and vegetation clearing to the minimum necessary for the
installation of any structures. Work from only one side of the stream, and,
where possible, from the side of the stream which does not have adjacent
wetlands. If no wetlands are present, work from the side with the fewest trees
and woody vegetation.
(d) Ensure permanent in-stream structures, including but not limited to culverts and
other stream encapsulations, are embedded and sized appropriately so as not
to impede surface flows or create abnormal impediments to aquatic life.
(e) Deposit any dredged material in a contained upland (non-wetland) disposal
area to prevent sediment run-off to any waterbody.
(f) Create temporary structures constructed in streams such that near normal
stream flows are maintained. (327 IAC definitions Stream Design Flow)
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(g) Install riprap and other bank stabilization materials so they are flush with the
upstream and downstream bank and stream channel bed elevations and
grades.
Other Applicable Permits
Based on the proposed land disturbance, a construction stormwater general permit is
required for the project. Permit coverage must be obtained prior to the initiation of land-
disturbing activities. Information related to obtaining permit coverage is available at
www.in.gov/idem/stormwater or by contacting the IDEM, Stormwater Program at 317-
233-1864 or via email at Stormwat@idem.IN.gov.
This certification does not relieve you of the responsibility of obtaining any other permits
or authorizations that may be required for this project or related activities from IDEM or
any other agency or person. You may wish to contact the Indiana Department of Natural
Resources at 317-232-4160 (toll free at 877-928-3755) concerning the possible
requirement of natural freshwater lake or floodway permits.
This certification does not:
(1) Authorize impacts or activities outside the scope of this certification;
(2) Authorize any injury to persons or private property or invasion of other private
rights, or any infringement of federal, state or local laws or regulations;
(3) Convey any property rights of any sort, or any exclusive privileges;
(4) Preempt any duty to obtain federal, state or local permits or authorizations
required by law for the execution of the project or related activities; or
(5) Authorize changes in the plan design detailed in the application.
Notice of Right to Administrative Review (Permits)
If you wish to challenge this permit, you must file a Petition for Administrative Review with
the Office of Environmental Adjudication (OEA) and serve a copy of the petition upon
IDEM. The requirements for filing a Petition for Administrative Review are found in IC 4-
21.5-3-7, IC 13-15-6-1 and 315 IAC 1-3-2. A summary of the requirements of these laws
is provided below.
A Petition for Administrative Review must be filed with the Office of Environmental
Adjudication (OEA) within fifteen (15) days of the issuance of this notice (eighteen (18)
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days if you received this notice by U.S. Mail), and a copy must be served upon IDEM.
Addresses are:
Director Commissioner
Office of Environmental Adjudication Indiana Dept. of Environmental Management
Indiana Government Center North Indiana Government Center North
100 North Senate Avenue, Room N103 100 North Senate Avenue, Room 1301
Indianapolis, Indiana 46204 Indianapolis, Indiana 46204
The petition must contain the following information:
(a) The name, address and telephone number of each petitioner.
(b) A description of each petitioner’s interest in the permit.
(c) A statement of facts demonstrating that each petitioner is:
(1) a person to whom the order is directed;
(2) aggrieved or adversely affected by the permit; or
(3) entitled to administrative review under any law.
(d) The reasons for the request for administrative review.
(e) The particular legal issues proposed for review.
(f) The alleged environmental concerns or technical deficiencies of the permit.
(g) The permit terms and conditions that the petitioner believes would be
appropriate and would comply with the law.
(h) The identity of any persons represented by the petitioner.
(i) The identity of the person against whom administrative review is sought.
(j) A copy of the permit that is the basis of the petition.
(k) A statement identifying petitioner’s attorney or other representative, if any.
Failure to meet the requirements of the law with respect to a Petition for Administrative
Review may result in a waiver of your right to seek administrative review of the permit.
Examples are:
(a) Failure to file a Petition by the applicable deadline;
(b) Failure to serve a copy of the Petition upon IDEM when it is filed; or
(c) Failure to include the information required by law.
If you seek to have a permit stayed during the administrative review, you may need to
file a Petition for a Stay of Effectiveness. The specific requirements for such a Petition
can be found in 315 IAC 1-3-2 and 315 IAC 1-3-2.1.
Pursuant to IC 4-21.5-3-17, OEA will provide all parties with notice of any pre-hearing
conferences, preliminary hearings, hearings, stays, or orders disposing of the review of
this action. If you are entitled to notice under IC 4-21.5-3-5(b) and would like to obtain
notices of any pre-hearing conferences, preliminary hearings, hearings, stays, or orders
disposing of the review of this action without intervening in the proceeding you must
submit a written request to OEA at the address above.
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If you have procedural or scheduling questions regarding your Petition for
Administrative Review, additional information on the review process is available at the
website of the Office of Environmental Adjudication at http://www.in.gov/oea.
If you have any questions about this certification, please contact James Turner, Project
Manager, by email at JTurner2@IDEM.IN.Gov or by telephone at 317-450-7054.
cc: Sarah Keller, USACE – Indianapolis
Indiana Stream and Wetland Mitigation Program
Tomás Fuentes-Rohwer, Davey Resource Group