NAO-2009-00044 (Living River Restoration Trust, Virginia)

Published Dec. 1, 2023
Expiration date: 1/1/2024

December 1, 2023

The District Engineer received a request from The Coastal Virginia Conservancy (previously the Living River Restoration Trust), the Sponsor of the Living River Trust Fund, to increase the number of Subaqueous Bottom Advanced Credits in the Lower James River Basin.  

The Coastal Virginia Conservancy
Ms. Elizabeth Friel
Executive Director
5215 Colley Avenue
Suite 119
Norfolk, Virginia 23508

The Sponsor administers the Living River Restoration Trust Fund (LRRT) In-Lieu Fee Program (ILF Program) for the purpose of providing an in-lieu fee mechanism for compensatory mitigation for impacts to subaqueous bottom in the Lower James River Basin in Hampton Roads, Virginia.

On May 4, 2018, the Living River Restoration Trust Program Instrument (Instrument) was finalized. The Instrument, through the Compensation Planning Framework (CPF), identifies the service area for the LRRT as Hydrologic Unit Code 02080208. The Instrument assigns 16 Advanced Subaqueous Bottom Credits to the LRRT. In determining the number of Advanced Credits, the US Army Corps of Engineers-Norfolk District (USACE) and the Interagency Review Team (IRT) evaluated the CPF, the Sponsor’s past performance in that service area, and the projected financing needed to plan and implement projects.

Due to current need, projected future need, and the lack of existing subaqueous bottom credits, the Sponsor submitted a proposal to modify the existing Instrument to increase the number of Subaqueous Restoration Advanced Credits from 8 to 20 and increase the number of Subaqueous Rehabilitation Advanced Credits from 8 to 40.

The ILF Program may be one of several practicable options available to applicants to compensate for unavoidable subaqueous bottom 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. The actual approval of the use of this ILF Program for a specific project is the decision of the USACE and will be made consistent with Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act. USACE provides 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.

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).

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 is no effect 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 is no effect 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.

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, Jeanne Richardson, at the address below or via email and should be received by the close of business on January 1, 2024. The proposed request, the existing LRRT Instrument and all exhibits can be viewed at Public Notices (

If you have any questions, please contact:
Jeanne Richardson
803 Front Street
Norfolk, Virginia 23510