Published Oct. 22, 2014
Expiration date: 11/23/2014

The district engineer received a prospectus to establish a wetland and stream compensatory mitigation In-Lieu-Fee (ILF) fund program (Fund) for federal and state permits as described below:


Commonwealth of Virginia Department of Environmental Quality (DEQ)
Brenda Winn
Office of Wetlands and Stream Protection
PO Box 1105
Richmond, Virginia 23218

WATERWAY AND LOCATION OF THE PROPOSED WORK: The proposed Fund will review projects throughout the Commonwealth of Virginia and in all watersheds.

PROPOSED WORK AND PURPOSE: In April 2013, the Virginia General Assembly passed amendments to the Code of Virginia Sections 62.1-44.15:21 and 62.1-44.15:23.1 that established the legal provisions for developing and operating the Wetland and Stream Replacement Fund (“Fund”) in-lieu fee program. Monies in the Fund shall be used for the purpose of purchasing mitigation bank credits, as soon as practicable, if qualifying credits are available. If such credits are not available, within three years of the collection of monies for a specific impact, then funds shall be utilized either (1) to purchase credits from a board-approved fund that have met the success criteria, if qualifying credits are available, (2) for the planning, construction, monitoring, and preservation of wetland and stream mitigation projects and preservation, enhancement, or restoration of upland buffers adjacent to wetlands or other state waters when used in conjunction with creation or restoration of wetlands and streams, or (3) for other water quality improvement projects as deemed acceptable by the Department of Environmental Quality.

Such projects developed under clause 2 (above) shall be developed in accordance with guidelines, responsibilities, and standards established by the Department of Environmental Quality for use, operation, and maintenance consistent with 33 CFR Part 332, governing compensatory mitigation for activities authorized by U.S. Army Corps of Engineer permits.

The sponsor proposes to establish, design, construct, and operate a compensatory wetland and stream mitigation program to be known as the “Wetland and Stream Replacement Fund In-Lieu Fee Mitigation Program” (Fund). The purpose of the Fund is to provide off-site compensatory mitigation for projects that result in unavoidable impacts to wetlands and streams and other waters of the United States in all drainage basins in the Commonwealth of Virginia.

The sponsor proposes, for purposes of Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act, that the geographic service area of this Fund  include all of the National Watershed Boundary Dataset Hydrologic Unit Codes in the Commonwealth of Virginia.

Oversight of this Fund would be a group of federal and state agency representatives.  This interagency oversight group would be known as the Interagency Review Team (IRT). The Norfolk District, U.S. Army Corps of Engineers, would chair the IRT.

This mitigation fund 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 mitigation fund for a specific project is the decision of the Corps pursuant to Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act and/or by the Department of Environmental Quality pursuant to Section 401 of the Clean Water Act and Title 62.1 of the Code of Virginia. The Corps and the Department of Environmental Quality cannot guarantee, to either the applicant or the bank sponsor, authorization to use this mitigation fund to compensate for unavoidable wetland impacts associated with any particular Individual or General 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 in-lieu fee programs and in-lieu fee sites 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 U.S. Army Corps of Engineers 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 mitigation site. This is not an application for work in Waters of the United States. The U.S. Army Corps of Engineers 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.

All projects proposed under this Fund must comply with: 1) The Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended), 2) Section 106 of the National Historic Preservation Act of 1996 , and the Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267).

COMMENT PERIOD: Comments on this project should be made in writing, addressed to the Norfolk District, U.S. Army Corps of Engineers (ATTN:  Vincent Pero), 920 Gardens Boulevard, Suite 200, Charlottesville, Virginia 22901, and should be received by the close of business on November 23, 2014.

If you have any questions about this in-lieu fee Fund, please contact: Vincent Pero at 434-973-0568 or e-mail: