March 26, 2019
CENAO-WRR
NAO-1995-08595
FEDERAL PUBLIC NOTICE
The district engineer received a request from the sponsor of the Virginia Aquatic Resources Trust Fund to increase the number of advanced credits in the Atlantic Ocean basin, Chesapeake Bay basin and Potomac River basin.
SPONSOR
The Nature 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: On July 14, 2011, the VARTF ILF Program Instrument (Instrument) was finalized. The Instrument, through the Compensation Planning Framework (CPF), identifies the service areas in which VARTF works and the number of Advanced Credits associated with each of those service areas. In determining the number of Advanced Credits for each service area the US Army Corps of Engineers-Norfolk District (USACE), the Virginia Department of Environmental Quality (DEQ), and the Interagency Review Team (IRT) evaluated the CPF, the Sponsor’s past performance in a service area, and the projected financing needed to plan and implement projects.
On November 8, 2019, USACE public noticed an amended and restated Instrument. USACE is working with DEQ, the IRT, and the Sponsor to evaluate public comments received during that public notice comment period. The requested increases in Advanced Credits will be a component of the final amended and restated Instrument.
Due to the current need, projected future need, the lack of publicly available 3rd party compensatory mitigation alternatives, and the timeframe necessary to approve compensatory mitigation banks, VARTF submitted three (3) proposals to modify the existing Instrument to increase the number of Advanced Credits in the following basins:
Atlantic Ocean Basin-VARTF has requested to increase the number of non-tidal wetland (NTW) Advanced Credits from five (5) to ten (10). VARTF sold the last of their
five (5) NTW Advanced Credits in 2017. There are currently no proposed or approved NTW compensatory mitigation banks in the Atlantic Ocean Basin. VARTF currently has two (2) approved projects that will generate approximately 11.93 NTW credits.
Please see the attached Memorandum from VARTF that further details their request.
Chesapeake Bay Basin-VARTF has requested to increase the number of tidal wetland (TW) Advanced Credits from two (2) to five (5). VARTF sold 1.94 of their two (2) TW Advanced Credits over the past five (5) years. There are currently no proposed or approved TW compensatory mitigation banks in the Chesapeake Bay Basin. VARTF currently has one (1) Site that will generate approximately 9.9 TW Credits. Please see the attached Memorandum from VARTF that further details their request.
Potomac River Basin-VARTF has requested to increase the number of NTW Advanced Credits from five (5) to forty-five (45). The forty (40) additional NTW Advanced Credits:
- would be released for a two (2) year timeframe;
- would be restricted for use ONLY in all of Hydrologic Unit Cod (HUC) 02070008 and the northwestern portion of HUC 02070010; and
- would require that immediately upon issuance of this Public Notice, the Sponsor begin to evaluate potential Sites to offset those additional Advanced Credits;
VARTF promised/sold all five (5) of their NTW Advanced Credits in 2018 and 2019. The currently available number of NTW compensatory mitigation bank credits in all of HUC 02070008 and the northwestern portion of HUC 02070010 fluctuates from zero (0) to approximately fifteen (15) at any given time. The fluctuation is based on approved credit release schedules for those compensatory mitigation banks whose geographic service area (GSA) covers the HUCs identified above and the pressure on the market for those credits. There are currently a number of proposed NTW compensatory mitigation banks with proposed GSAs that include all of HUC 02070008 and the northwestern portion of HUC 02070010, however they are six (6) months to one (1) year from final approval. Please see the attached Memorandum from VARTF that further details their request.
An existing group of federal and state agency representatives have oversight of this ILF Program. This interagency oversight group is known as the Interagency Review Team. USACE and DEQ 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 404 and 401 of the Clean Water Act (Public Law 95-217) in Virginia.
The actual approval of the use of this ILF Program for a specific project is the decision of USACE pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act and by DEQ pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia. USACE and DEQ 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 ILF Program 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: 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 this proposed increase in the number of Advanced Credits. This is not an application for work in Waters of the United States. This is a proposal to increase the number of Advanced Credits for an existing ILF Program.
USACE 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 ILF Site is identified, 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 ILF Site is identified. 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). Essential Fish Habitat (EFH) coordination will be initiated when a specific ILF Site is identified.
COMMENT PERIOD: Comments on the proposed request to increase the number of Advanced Credits 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 April 21, 2019. The proposed request, the existing VARTF Instrument and all of the exhibits can be viewed at https://ribits.usace.army.mil/.
If you have any questions, please contact Jeanne Richardson at jeanne.c.richardson@usace.army.mil or at 434-384-0182.