TITLE: Merschman Fertilizer Mississippi River Terminal Encroachment Improvements to Burlington North Bottoms Levee (Public Notice ID #2022-0001)
PUBLIC NOTICE COMMENT PERIOD:
Begins: 24 April 2025
Expires: 24 May 2025
Interested parties are hereby notified that an application has been received for a Department of the Army Section 408 permission for certain work at or near a federally-authorized flood risk management project of the United States, as described below and shown on attached figures. Written comments are being solicited from anyone having an interest in the requested alteration. Comments providing substantive information or a rationale for the commenter’s position are the most helpful. All comments supporting, opposing, or identifying concerns the U.S. Army Corps of Engineers (USACE) should consider in its decisions process are welcome. Comments will become part of the USACE administrative record and will be considered in determining whether to approve the request.
This public notice is not a paid advertisement and is for public information only. Issuance of this notice does not imply USACE endorsement of the project as described.
REQUESTER: In compliance with 33 USC 408 (Section 14 of the Rivers and Harbors Act of 1899; hereinafter Section 408), Merschman Fertilizer, LLC has requested permission for encroachments modifying the Burlington North Bottoms Levee, an existing federally-authorized flood risk management project.
LOCATION: The proposed project is located at the Merschman Fertilizer, LLC River Terminal, in Burlington, IA.
LOCATION MAP(S)/DRAWING(S): See Figures 1 and 2.
REQUESTER’S PROPOSED ACTION: Merschman Fertilizer, LLC altered the Burlington North Bottoms Levee for repairs and improvements to their River Terminal Facility. Following repairs and improvements, Merschman Fertilizer, LLC requested Section 408 permission for modifications to the levee. These modifications included repairing the existing Mississippi River dock and building a new elevator, creating a new walkway, and constructing new mooring dolphins for their terminal facility. The USACE Rock Island District’s (District) Regulatory Division authorized this project prior to the action under Nationwide Permits 9 and 39 for compliance with Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403). Merschman Fertilizer, LLC requested Section 408 permission after completion of the actions. All new features, including those located in the river, connect to the levee near Levee Station 62+50.
REGULATORY AUTHORITY: This request will be reviewed according to the provisions of Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. 408). A requestor has the responsibility to acquire all other permissions or authorizations required by Federal, state, and local laws or regulations, including any required permits from the USACE Regulatory Program under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403), Section 404 of the Clean Water Act (33 USC Section 1344), and/or Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 USC 1413). The compliance determination for any Section 10/404/103 permit decision associated with the proposed alteration is separate from and will not be included in the Section 408 compliance determination. An approval under Section 408 does not grant any property rights or exclusive privileges nor does it authorize any injury to the property or rights of others.
EVALUATION: The decision whether to grant the requested permission for project modification under Section 408 is based on several factors which are outlined in Engineering Circular (EC) 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to Section 408. The decision will reflect the national concern for 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. A USACE technical team will review the requests for modification considering the following factors:
1. Impair the Usefulness of the Project Determination. The review team willdetermine if the proposed alteration would limit the ability of the federally-authorized project to function as authorized, or if it would compromise or changeany authorized project conditions, purposes or outputs. The decision whether toapprove a request for modification would be based on a determination of noimpairments.
2. Injurious to the Public Interest Determination. Proposed alterations will bereviewed to determine the probable impacts, including cumulative impacts, onthe public interest. Evaluation of the probable impacts that the proposedalteration to the USACE project may have on the public interest requires acareful weighing of all those factors that are relevant in each particular case.Factors that may be relevant to the public interest depend upon the type ofUSACE project being altered and may include, but are not limited to, such things as conservation, economic development, historic properties, cultural resources, environmental impacts, water supply, water quality, flood hazards, floodplains, residual risk, induced damages, navigation, shore erosion or accretion, and recreation. The decision whether to approve an alteration will be determined by the consideration of whether benefits are commensurate with risks. If the potential detriments are found to outweigh the potential benefits, then it may be determined that the proposed alteration is injurious to the public interest.
3. Environmental Compliance. A decision on a Section 408 request is a Federalaction, and therefore subject to the National Environmental Policy Act (NEPA)and other environmental compliance requirements. While ensuring compliance isthe responsibility of USACE, the requester is providing all information the Districtidentifies as necessary to satisfy all applicable Federal laws, executive orders,regulations, policies, and ordinances. The National Environmental PolicyAct (NEPA) and other analyses completed to comply with the otherenvironmental statutes (e.g., Endangered Species Act) should be commensuratewith the scale and potential effects of the activity that would alter the USACEproject.
a. Rock Island District Regulatory Division authorized these actions underNationwide Permits 9 and 39 for compliance with Section 10 of the Rivers andHarbors Act of 1899 (33 USC 403). This authorization was issued prior to theaction. Prior to Section 10 authorization, Rock Island District RegulatoryDivision reviewed the proposed actions for compliance with applicableenvironmental and cultural resources laws and regulations.
b. The Applicant prepared an Environmental Assessment and necessaryenvironmental compliance documentation for the District to review. The Districtwill ensure modifications would comply with the NEPA, the EndangeredSpecies Act, and all other applicable Federal environmental laws andregulations prior to determining if Section 408 permission should be grantedfor the encroachments.
c. No cultural resources are documented within the Project Area. According tothe National Levee Database, the Burlington North Levee and DrainageDistrict was authorized in 1977 and constructed in 1984; it is therefore not oldenough to be considered an historic property. The Project Area is limited innature and scope. The Rock Island District Regulatory Division determinedthere was no potential to cause effects and consultation was not required.
4. Technical Analysis. The District is working closely with the requestor to ensure allrequired technical plans, maps, drawings, and specifications are provided andcomplete. A District-led Agency Technical Review is being conducted todetermine any potential adverse impacts to the USACE-authorized floodprotection system and to the navigation channel.
SOLICITATION OF COMMENTS: The 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 activity. Any comments received will be considered by the USACE to determine whether to issue, modify, condition or deny a permission for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the NEPA. The USACE previously solicited comments for this proposed Section 408 permission in March 2024. The USACE is re-soliciting comments from the public as this Public Notice serves as the method of Section 408 public involvement for the NEPA process. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.
It should be noted that materials submitted as part of the Section 408 request become part of the public record and are thus available to the general public under the procedures of the Freedom of Information Act (FOIA). Individuals may submit a written request to obtain materials under FOIA or make an appointment to view the project file at the Corps of Engineers Rock Island District, Office of Counsel.
It is presumed all parties receiving this Public Notice will wish to respond to it; therefore, a lack of response will be interpreted as meaning that there is no objection to the project as described.
COMMENT SUBMISSION AND ADDITIONAL INFORMATION: Written comments on the described work should reference the U.S. Army Corps of Engineers Public Notice number 2022-0001. Comments must reach this office no later than May 24, 2025. Comments or requests for additional information should be mailed or emailed to the following address:
Email: CEMVR_Planning@usace.army.mil
District Engineer
US Army Corps of Engineers, Rock Island District
Attn: Ryckaert (PM-M)
Clock Tower Building
P. O. Box 2004
Rock Island, IL. 61204-2004
Click links below for Location Maps/Drawings.