NAO-1995-08595

Norfolk District, U.S. Army Corps of Engineers
Published Dec. 15, 2020
Expiration date: 1/14/2021

December 15, 2020
CENAO-WRR
NAO-1995-08595

FEDERAL PUBLIC NOTICE
The District Engineer received a request from The Nature Conservancy, the Sponsor of the Virginia Aquatic Resources Trust Fund, to increase the number of Advanced Credits in the Middle James River Basin, the New River Basin, the Potomac River Basin, the Roanoke River Basin and the Shenandoah 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.  This public notice is specific to the Basins identified above.

PROPOSED WORK AND PURPOSE:  On July 18, 2019, the ‟VARTF 2019-Amended and Restated 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.

Due to current need, projected future need, the lack of publicly available 3rd party compensatory mitigation alternatives, and the timeframe associated with compensatory mitigation bank (Bank) approvals and credit releases, VARTF submitted five (5) proposals to modify the existing Instrument to increase the number of Advanced Credits in the following Basins:

Middle James River Basin-VARTF has requested to increase the number of non-tidal wetland (NTW) Advanced Credits from ten (10) to twenty (20).  VARTF sold the last of their ten (10) NTW Advanced Credits in 2020. There are two (2) recently proposed NTW Banks that include the Middle James River Basin within their geographic service area (GSA). However, due to the proposed credit release schedules for those Banks and the pressure on the market for those credits, the number of Bank NTW credits that may be available will fluctuate and may not be enough to cover the need.  Please see the attached Middle James River Basin Memorandum from VARTF that further details their request.

New River Basin-VARTF has requested to increase the number of NTW Advanced Credits from five (5) to ten (10).  VARTF sold the last of their five (5) NTW Advanced Credits in 2013.  There are several existing/proposed Banks that have/propose to have NTW credits within the New River Basin. However, due to the approved/proposed credit release schedules for those Banks, the number of available Bank NTW credits will fluctuate and may not be enough to cover the need. Please see the attached New River Basin Memorandum from VARTF that further details their request.

Potomac River Basin-VARTF has requested to increase the number of stream Advanced Credits from ten thousand (10,000) to fifty thousand (50,000). VARTF sold the last of their ten thousand (10,000) stream Advanced Credits in 2020. There are several existing/proposed Banks that have/propose to have stream credits within the Potomac River Basin. However, due to the approved/proposed credit release schedules for those Banks and the pressure on the market for those credits, the number of available Bank stream credits will fluctuate and may not be enough to cover the need. Please see the attached Potomac River Basin Memorandum from VARTF that further details their request.

Roanoke River Basin-VARTF has requested to increase the number of NTW Advanced Credits from five (5) to ten (10) and stream Advanced Credits from five thousand (5,000) to ten thousand (10,000). VARTF sold the last of their five (5) NTW Advanced Credits in 2018 and VARTF has a remaining balance of 1590 stream Advanced Credits. There is currently a shortage of available wetland and stream credits in the 03010106 hydrologic unit code (HUC) in the Roanoke River Basin. No NTW Banks in the Roanoke River Basin include the 03010106 within their approved GSA.  There is one stream Bank in the Roanoke River Basin that includes the 03010106 within its approved GSA. However, due to the approved credit release schedule for that Bank, the number of available Bank stream credits fluctuates and may not be enough to cover the need. Please see the attached Roanoke River Basin Memorandum from VARTF that further details their request.

Shenandoah River Basin- VARTF has requested to increase the number of NTW Advanced Credits from five (5) to ten (10).  VARTF sold the last of their five (5) NTW Advanced Credits in 2020.  No NTW Banks in the Shenandoah River Basin include the 02070004 HUC within their approved GSA.  Please see the attached Shenandoah River Basin Memorandum from VARTF that further details their request.

The ILF Program may be one of several practicable options available to applicants to compensate for unavoidable wetland and stream impacts associated with permits issued by 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. The actual approval of the use of this ILF Program for a specific project is the decision of the USACE and DEQ and will be made consistent with Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, 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 permit or general permit will be granted authorization to use this ILF Program to compensate for unavoidable impacts associated with that particular 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

As this is not an application for work, 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 January 14, 2021. 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.