Published Nov. 8, 2018
Expiration date: 12/8/2018

November 6, 2018



The District Engineer received a request from the Sponsor of the Virginia Aquatic Resources Trust Fund to amend and restate its existing In-Lieu Fee Program Instrument.


The Nature Conservancy (Conservancy)
Ms. Karen Johnson
Director of Wetland and Stream Mitigation
530 East Main Street
Suite 800
Richmond, Virginia 23219

LOCATION OF THE PROPOSED WORK: The sponsor administers the Virginia Aquatic Resources Trust Fund (VARTF) In-Lieu Fee Program (ILF Program) for the purpose of providing an in-lieu fee mechanism for compensatory mitigation for impacts to aquatic resources throughout the Commonwealth of Virginia.

PROPOSED WORK AND PURPOSE: The sponsor proposes to amend and restate the VARTF Program Instrument (Instrument) dated July 14, 2011, which amended the Memorandum of Understanding dated December 18, 2003, which previously amended the initial Wetlands Restoration Trust Fund Program Memorandum of Understanding dated August 18, 1995. The purpose of the amended and restated Instrument and the associated Site Development Plan (SDP) is to confirm and update guidelines, responsibilities and standards for the establishment, use, operation and maintenance of the ILF Program.  The Instrument authorizes the ILF Program. The SDP is used to approve all new compensatory mitigation projects/sites identified by the Conservancy.

Oversight of this ILF Program would be by an existing group of federal and state agency representatives. This interagency oversight group is known as the Interagency Review Team (IRT).  The Norfolk District of the U.S. Army Corps of Engineers (Corps) and the Virginia Department of Environmental Quality (VDEQ) chair the IRT. 

The ILF Program may be one of a number of practicable options available to applicants to compensate for unavoidable wetland and stream impacts associated with permits issued under the authority of Section 10 of the Rivers and Harbors Act,  Section 404 and 401 of the Clean Water Act (Public Law 95-217) and Title 62.1 of the Code of Virginia.

The actual approval of the use of this ILF Program for a specific project is the decision of the Corps pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act and by VDEQ pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia.  The Corps and VDEQ provide no guarantee that any particular individual or general permit will be granted authorization to use this ILF Program to compensate for unavoidable impacts associated with a proposed permit. Authorization by the Virginia Marine Resources Commission may also be required for its use for specific projects. 

AUTHORITY:  Issuance of a public notice regarding proposed ILF Program modifications/amendments is required pursuant to the “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule,” (Rule) as published in the April 10, 2008, Federal Register, Vol. 73, No. 70, Pages 19594-19705 (33 CFR Parts 325 and 332).

FEDERAL EVALUATION OF PROPOSAL:  The Corps 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 this Draft ILF instrument.  This is not an application for work in Waters of the United States. This is a proposed amended and restated ILF Instrument and SDP that has been presented to the Norfolk District IRT. 

The Corps in evaluating this proposal will consider any comments received.  Comments are used to assess impacts on endangered species, historic properties, water quality, conservation, economics, aesthetics, general environmental concerns, wetlands, fish and wildlife values, flood hazards, flood plain values, land use classification, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, and consideration of property ownership. 

Preliminary review indicates that:  (1) no environmental impact statement would be required; (2) there may be an affect to listed/proposed/candidate species and/or designated/proposed critical habitat under the Endangered Species Act of 1973, coordination for Endangered Species will be conducted when a specific SDP is submitted, and (3) there may be an affect to properties eligible for inclusion or included in the National Register of Historic Places, coordination with the Virginia Department of Historic Resources will be initiated when a specific SDP is submitted. Additional information might change any of these findings.

The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), requires all Federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH) coordination will be initiated when a specific SDP is submitted.

COMMENT PERIOD:  Comments on this amended and restated Instrument should be made in writing, addressed to the Norfolk District, Corps of Engineers-Lynchburg Field Office, P.O. Box 3160, Lynchburg, Virginia  24503 and should be received by the close of business on December 8, 2018. The Draft ILF Instrument and Exhibits can be viewed at

If you have any questions about this Instrument, please contact Jeanne Richardson at

or at 434-384-0182.