Published Aug. 4, 2016
Expiration date: 9/6/2016

August 5, 2016


The District Engineer received a request from Living River Restoration Trust to modify its existing In Lieu Fee instrument established May 4, 2004 and the amendment to the instrument signed on September 16, 2009. The purpose of the proposed modification is to expand Program operations and to ensure that the entire Program meets the standards set forth in 33 CFR Part 332 Compensatory Mitigation for Losses of Aquatic Resources: Final Rule (t).

Living River Restoration Trust
Point of Contact: Dave Koubsky
Elizabeth River Project
Phone: 757-399-7487

WATERWAY AND LOCATION OF THE PROPOSED WORK: The proposed mitigation site(s) will be located within and adjacent to the Elizabeth River and its tributaries in Norfolk, Portsmouth, and Chesapeake.

PROPOSED WORK AND PURPOSE: The sponsor proposes to establish, design, construct, and operate an In Lieu Fee (ILF) program to be known as Living River Restoration Trust. The purpose of the ILF is to provide off-site compensatory mitigation for projects that result in unavoidable impacts to wetlands, oyster reefs, mudflats, subaqueous bottom and other waters of the United States in the Elizabeth River Watershed. 

The Sponsor plans to remediate contaminated soil in the Elizabeth River, create/restore oyster reefs, and create/restore tidal vegetation within the Elizabeth River.

The sponsor proposed, 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 ILF would include the National Watershed Boundary Dataset Hydrologic Unit Codes 02080208 and 0208010802. This proposed service area would include portions of the Cities of Chesapeake, Norfolk, Portsmouth, Suffolk and Virginia Beach.  

Oversight of this ILF program would be by an existing group of federal and state agency representatives. This interagency oversight group is known as the Interagency Review Team (IRT).  The Norfolk District of the U.S. Army Corps of Engineers and the Virginia Department of Environmental Quality chair the IRT. 

This ILF program may be one of a number of practicable options available to applicants to compensate for unavoidable wetland 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 for a specific project is the decision of the Corps pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act and 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 provide no guarantee that any particular individual or general permit will be granted authorization to use this ILF to compensate for unavoidable impacts associated with a proposed 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 ILF program modifications 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 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 Draft ILF instrument. This is not an application for work in Waters of the United States.

The 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. 

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 Site Development Plan is submitted. (3) Known properties eligible for inclusion or included in the National Register of Historic Places are in or near the Elizabeth River and coordination will be initiated when a specific Site Development Plan is submitted. 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). The Elizabeth River contains Essential Fish Habitat (EFH) and coordination for EFH will begin when a specific Site Development Plan is submitted.

COMMENT PERIOD: Comments on this project should be made in writing, addressed to the Norfolk District, Corps of Engineers- (ATTN:  CENAO-WRR), 803 Front Street, Norfolk, Virginia  23510-1011 and should be received by the close of business on September 6, 2016. The 2004 Instrument, 2009 Amendment and the Draft ILF Instrument and Exhibits can be viewed at

If you have any questions about this mitigation site, please contact Mr. Brian Denson at or at 757-201-7792.