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LRH 2012-373

Published Dec. 8, 2016
Expiration date: 1/4/2017

PUBLIC NOTICE: The district engineer has received a request to modify an approved in-lieu fee program (ILFP) instrument within the United States (U.S.) Army Corps of Engineers (Corps), Huntington District regulatory boundary as described in this Public Notice. This Public Notice 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 332). The purpose of this Public Notice is to inform you of the proposed modification to the approved ILFP instrument and to solicit your comments and information to better able us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process.


INTERAGENCY REVIEW TEAM: As indicated in the Corps regulations (33 CFR 332.8(b)), the district engineer has established an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee programs.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments.  The Corps, Huntington District (Regulatory Division) is the lead district for the State of Ohio and chairs the Ohio IRT on all statewide or multiple District prospectuses. The Ohio IRT is presently comprised of the Corps (Buffalo, Huntington, and Pittsburgh Districts), the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Department of Agriculture-Natural Resources Conservation Service, the Ohio Department of Natural Resources, and the Ohio Environmental Protection Agency. 


REGULATORY PROGRAM: Since its early history, the Corps has played an important role in the development of the nation's water resources.  Originally, this involved construction of harbor fortifications and coastal defenses.  Later duties included the improvement of waterways to provide avenues of commerce.  An important part of our mission today is the protection of the nation's waterways through the administration of the Corps’ Regulatory Program.


SECTION 10: The Corps is directed by Congress under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition or capacity of navigable waters of the U.S.  The intent of this law is to protect the navigable capacity of waters important to interstate commerce.



SECTION 404: The Corps is directed by Congress under Section 404 of the Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the U.S., including wetlands.  The intent of the law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical and biological integrity.


TO WHOM IT MAY CONCERN: 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 proposed modification to the approved ILFP instrument.


IN-LIEU FEE PROGRAM DEFINITION: An ILFP is a program involving the restoration, establishment, enhancement and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for Department of the Army (DA) permits.  Similar to a mitigation bank, an ILFP sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the ILFP sponsor.


IN-LIEU FEE PROGRAM SERVICE AREAS: Approved ILFPs must have a geographic service area as a requirement of the approved ILFP instrument (33 CFR 332.8(d)(6)(ii) and (iv)).  The geographic service area is the watershed, ecoregion, physiographic province, and/or other geographic area within which the ILFP is authorized to provide compensatory mitigation.  All impacts and compensatory mitigation must be accounted for by the service area, and service areas must be appropriately sized to ensure that aquatic resources provided will effectively compensate for adverse environmental impacts across the entire service area.  The basis for the ILFP’s service areas is proposed by the sponsor and must be documented in the ILFP instrument, and must be approved by the Ohio IRT. 


ILFP SPONSOR:      North Coast Regional Council of Park Districts (North Coast)

          12882 Diagonal Road

LaGrange, Ohio 44050


PURPOSE: The North Coast has submitted a draft instrument modification to modify their approved ILFP instrument to provide third party stream and/or wetland compensatory mitigation within three (3) additional services areas (i.e. Ohio Brush-Whiteoak Watershed: Hydrologic Unit Code (HUC) 05090201, Little Miami Watershed: HUC 05090202, and Lower Great Miami Watershed: HUC 05080002). Currently, the approved ILFP provides third party stream and wetland compensatory mitigation in one (1) primary service area (i.e. Tuscarawas Watershed: HUC 05040001) in the State of Ohio, within the Corps, Huntington District’s regulatory boundary.


DESCRIPTION OF PROPOSED ACTIVITY:  A complete copy of the proposed draft instrument modification is available for review upon request. Currently, the approved ILFP provides third party stream and wetland compensatory mitigation in one (1) primary service area. North Coast is requesting to modify their approved ILFP instrument to include three (3) additional service areas to provide stream and/or wetland compensatory mitigation, as follows:


Service Area HUC


Advance Credits





Tuscarawas Watershed





Ohio Brush-Whiteoak Watershed





Little Miami Watershed





Lower Great Miami Watershed





Refer to the enclosed “Figure 1: Service Areas and Corps Districts,” map for a depiction of the approved and proposed service areas.


PUBLIC INVOLVEMENT: The Corps is soliciting comments from the public, Federal, state, and local agencies and officials, Federally-recognized Tribes and other interested parties in order to consider and evaluate the proposed modification to the approved ILFP instrument.  Any comments received will be considered by the Corps in determining whether to approve the modification. 


PUBLIC HEARING: Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this proposed modification.  The request for a public hearing shall state, with particularity, the reasons for holding a public hearing.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. 


COMMENTS OR REQUEST FOR ADDITIONAL INFORMATION: Comments submitted in response to this notice will be fully considered during the review for this proposed modification.  All written comments will be made part of the administrative record which is available to the public under the provisions of the Freedom of Information Act.  Copies of comments received will be forwarded to the sponsor and to the members of the Ohio IRT.    


This notice is promulgated in accordance with Title 33, Code of Federal Regulations, parts 320-332.  Any interested party desiring to comment on the proposed modification described herein may do so by submitting their comments in writing so they are received no later than the closing date of this notice.


All responses to this notice should reference the public notice number (LRH-2012-373) and be directed to the Huntington District Regulatory Division at the above address.  Please contact Mr. Cory Wilson with any questions pertaining to this Public Notice or the proposed modification at the above address, by telephone at (330) 365-4271, or by email at