April 21, 2021
CENAO-WRR
NAO-1995-08595
FEDERAL PUBLIC NOTICE
The District Commander received a request from The Nature Conservancy (Sponsor), the Sponsor of the Virginia Aquatic Resources Trust Fund (VARTF), to replace their 2009 Compensation Planning Framework (CPF).
SPONSOR
Ms. Karen Johnson
The Nature Conservancy
Director of Wetland and Stream Mitigation
530 East Main Street, Suite 800
Richmond, VA 23219
PROJECT LOCATION: The Sponsor administers the VARTF In-Lieu Fee Program (ILF Program) for the purpose of providing an in-lieu fee option for compensatory mitigation for impacts to aquatic resources throughout the Commonwealth of Virginia. This public notice is specific to the Sponsor’s request to replace their 2009 CPF.
PROJECT DESCRIPTION AND PURPOSE: On July 18, 2019, the ‟VARTF 2019-Amended and Restated Program Instrument” (Instrument) was finalized. The Instrument, through the CPF, identifies where the Sponsor will locate and pursue compensatory mitigation projects. The Sponsor’s first CPF was developed in 2009 and was incorporated into the VARTF ILF Program Instrument. In March 2021, the Sponsor submitted “The Nature Conservancy’s Watershed Approach to Compensation Planning for the Virginia Aquatic Resources Trust Fund” (2021 CPF). The 2021 CPF will replace the 2009 CPF. The 2021 CPF incorporates advances in science, new spatial prioritization data, refinements to the Sponsor’s conservation approach, and the operational history of the VARTF ILF Program into its efforts to select and evaluate compensatory mitigation sites.
The ILF Program may be one of several practicable options available to applicants to compensate for unavoidable aquatic resource impacts associated with permits issued by U.S. Army Corps of Engineers Norfolk District (Corps) pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act and by the Virginia Department of Environmental Quality (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 Corps and DEQ. Corps and DEQ provide no guarantee that a specific individual permit or general permit will be granted authorization to use this ILF Program to compensate for unavoidable aquatic resource impacts associated with that specific permit.
Authorization by the Virginia Marine Resources Commission may also be required for ILF Program use for specific projects.
A copy of the Sponsor’s CPF and the ILF Program Instrument can be found on the Corps’ Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) in the 2021 Revised CPF folder and 2019 Program Instrument folder (Program Cyber Repository Tree (army.mil)).
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 APPLICATION: 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 the direct, indirect, and cumulative impacts for the proposal. Any comments received will be considered by the Corps.
As this is not an application for work, the Corps has made the preliminary determination that no Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA) will be required.
A site-specific evaluation pursuant to NEPA will be conducted when a specific ILF Program site is identified.
ENDANGERED SPECIES:As this is not an application for work, the Corps has made the preliminary determination that:
No listed/proposed/candidate species and/or designated/proposed critical habitat under the ESA of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended) will be affected. Based on this “no effect” determination, no further coordination with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) is required.
A site-specific evaluation under the ESA of 1973 will be conducted when a specific ILF Program site is identified.
HISTORIC AND CULTURAL RESOURCES: As this is not an application for work, the Corps has made the preliminary determination that:
No known Historic Resources eligible for inclusion or included in the National Register of Historic Places (NRHP) are in or near the Corps permit area or would likely be affected by the proposal.
A site-specific evaluation of NRHP eligibility will be conducted when a specific ILF Program site is identified.
ESSENTIAL FISH HABITAT: 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 NMFS on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH).
As this is not an application for work, the Corps has made a preliminary determination that there is no EFH in the Corps area of responsibility.
A site-specific evaluation of EFH will be conducted when a specific ILF Program site is identified.
VIRGINIA’S COASTAL ZONE MANAGEMENT PROGRAM: For compliance with the Coastal Zone Management Act of 1972, as amended for projects located in Virginia’s Coastal Zone, the applicant must certify that federally licensed or permitted activities affecting Virginia's coastal uses or resources will be conducted in a manner consistent with the Virginia’s Coastal Zone Management Program (Virginia CZM Program), and obtain concurrence from the DEQ, Office of Environmental Impact Review (OEIR). It is the applicant’s responsibility to submit a consistency certification to the OEIR for concurrence or objection, and proof of concurrence must be submitted to the Corps prior to final permit issuance. A template federal consistency certification can be found in the Federal Consistency Manual here: https://www.deq.virginia.gov/permits-regulations/environmental-impact-review/federal-consistency . For more information or to obtain a list of the enforceable policies of the Virginia CZM Program, contact the DEQ-OEIR at (804) 698-4204 or e-mail: bettina.rayfield@deq.virginia.gov.
As this is not an application for work, the Sponsor has not submitted proof of CZM concurrence.
A site-specific evaluation of CZM compliance will be conducted when a specific ILF Program site is identified.
VIRGINIA’S SECTION 401 WATER QUALITY CERTIFICATION PROGRAM: The applicant must obtain, from the DEQ, a Clean Water Act Section 401 Water Quality Certification for any federal license or permit that authorizes an activity that may result in a discharge into waters of the U.S. (40 CFR Part 121). As the Certifying Authority, the DEQ may grant, grant with conditions, or deny a certification request. Alternatively, the DEQ may waive, expressly or implicitly, its authority to act on a certification request. In either case, a written notice of waiver from the DEQ (expressly waived) or from the Corps (implicitly waived), satisfies the project proponent’s requirement to obtain certification.
As this is not an application for work, the Sponsor has not submitted a Clean Water Act Section 401 Water Quality Certification.
A site-specific evaluation for a Clean Water Act Section 401 Water Quality Certification will be conducted when a specific ILF Program site is identified.
COMMENT PERIOD: Comments on this project should be in writing and can be sent by either email to jeanne.c.richardson@usace.army.mil, or by regular mail, addressed to the Norfolk District, Corps of Engineers, Lynchburg Field Office, PO Box 3100, Lynchburg, VA 24503, and should be received by the close of business on May 21, 2021.
PRIVACY AND CONFIDENTIALITY: Comments and information, including the identity of the submitter, submitted in response to this Public Notice may be disclosed, reproduced, and distributed at the discretion of the Corps. Information that is submitted in connection with this Public Notice cannot be maintained as confidential by the Corps. Submissions should not include any information that the submitter seeks to preserve as confidential.
If you have any questions about the VARTF’s ILF Program or CPF, contact
Jeanne C. Richardson, jeanne.c.richardson@usace.army.mil, (434) 384-0182.