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LRH 2013-00181-OHR

Published May 10, 2018
Expiration date: 6/9/2018

TO WHOM IT MAY CONCERN: The district engineer for the United States (U.S.) Army Corps of Engineers (Corps) Huntington District has received a proposal to modify an existing In-Lieu Fee Program (ILFP) instrument 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) to provide mitigation for impacts to waters of the United States (U.S.) under Section 404 of the Clean Water Act (Section 404) and/or Section 10 of the Rivers and Harbors Act of 1899 (Section 10) within 32 eight (8)-digit hydrologic unit code (HUC) watersheds within the State of West Virginia.


This is not an application for work in federally regulated waters; however, a Department of the Army (DA) authorization under Section 404 and/or Section 10 may be required for the implementation of particular compensatory mitigation sites later proposed under the ILFP instrument modification, if approved. Such sites would be advertised under separate public notices.  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 this proposal. The purpose of this Public Notice is to inform you of the proposed ILFP instrument modification and to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process.


SPONSOR:      West Virginia Department of Environmental Protection (WVDEP)

West Virginia In-Lieu Fee (ILF) Stream and Wetland Mitigation Program 601 57th Street, SE

Charleston, West Virginia 25304


INTERAGENCY REVIEW TEAM (IRT): As indicated in the Corps regulations (33 CFR 332.8(b)), the district engineer will establish an IRT to review documentation for the establishment and management of mitigation banks and ILF projects.  The primary role of the IRT is to facilitate the establishment of mitigation banks and/or ILF projects through the development of mitigation banking or ILFP instruments. The IRT reviews draft prospectuses, prospectuses, instruments, and other documents and provides comments to the Corps. The West Virginia IRT consists of the following federal and state resource agencies: Corps Huntington and Pittsburgh Districts, U.S. Environmental Protection Agency (USEPA), U.S. Fish and Wildlife Service (USFWS), U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS), WVDEP, and West Virginia Division of Natural Resources (WVDNR).


ILF PROGRAM DEFINITION: An ILFP is a program that involves 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 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. As ILFP sites are identified and secured, the ILFP sponsor must submit compensatory mitigation plans to the district engineer that include all applicable items listed in 33 CFR 332.4(c)(2) through (14). The mitigation plans must also include a credit release schedule consistent with 33 CFR 332.8(o)(8) that is tied to achievement of specific performance standards. The review and approval of ILFP projects will be conducted in accordance with the procedures in 33 CFR 332.8(g)(1), as modifications of the ILFP instrument.


PURPOSE: The WVDEP has proposed to modify their existing ILFP instrument between the WVDEP and the Corps dated June 3, 2013 to meet compensatory mitigation requirements for future permits issued under Section 404 and/or Section 10.  The modification would supersede and replace the existing ILFP, and its purpose is to establish guidelines, responsibilities and standards for the establishment, use, operation and maintenance of the program in a way that complies with the regulations governing compensatory mitigation for activities authorized by DA permits granted by the Corps.  If approved by the State of West Virginia, the proposed ILFP could also be used as compensatory mitigation for activities authorized for other impacts to waters of the State (defined at West Virginia Code 22-11-3) as regulated by the WVDEP.


DESCRIPTION OF PROPOSED ACTIVITY: Information required for a complete ILFP instrument is outlined in 33 CFR 332.8(d)(2). A complete copy of the modified instrument is posted on the Huntington and Pittsburgh Corps Districtsrespective web sites.


Establishment/operation of the ILFP: Under Section 404, applicants for DA permits to discharge dredged or fill material into waters of the U.S., including wetlands, are often required to compensate for authorized wetland losses by creating, restoring, enhancing, or in exceptional circumstances, preserving wetlands or streams. Authorized ILFPs provide the Corps and the regulated public with additional options for compensatory mitigation of aquatic resource losses. The establishment and implementation of an ILFP must be in accordance with an ILFP instrument approved by the IRT.


If the modified instrument is deemed sufficient, the ILFP program will be modified and signed by the sponsor, the Corps, and other IRT members who choose to do so. The ILFP would continue to provide a generally preferred alternative to permittee-responsible mitigation for proposed unavoidable impacts to waters of the U.S. authorized under Section 404 and/or Section 10.  It may also provide an alternate type of mitigation for Civil Works projects requiring compensation for impacts to aquatic resources as well as providing a resource for use in resolving enforcement cases under Section 404 and/or Section 10.


Proposed Service Area: The ILFP is proposed to include the entire state of West Virginia as the geographic area for which mitigation can be provided. West Virginia encompasses 32, eight (8)-digit HUC regions: 02070001 (South Branch Potomac River and tributaries), 02070002 (North Branch Potomac River and tributaries), 02070003 (Cacapon River and tributaries), 02070004 (Potomac River tributaries such as Opequon Creek), 02070006 (tributaries of the North Branch Shenandoah River), 02070007 (tributaries of the Shenandoah River), 02080201 (tributaries of the upper James River), 05020001 (Tygart Valley River and tributaries), 05020002 (West Fork River and tributaries), 05020003 (upper Monongahela River and tributaries), 05020004 (Cheat River and tributaries), 05020005 (lower Monongahela River and tributaries), 05020006 (upper Youghiogheny River and tributaries), 05030101 (tributaries to the upper Ohio River such as Dunkard Creek and Wheeling Creek), 05030106 (other tributaries to upper Ohio River such as Kings Creek), 05030201 (tributaries to middle Ohio River such as Middle Island Creek), 05030202 (other tributaries to middle Ohio River such as Tug Fork in Jackson County), 05030203 (Little Kanawha River and tributaries), 05050002 (middle New River and tributaries), 05050003 (Greenbrier River and tributaries), 05050004 (lower New River and tributaries), 05050005 (Gauley River and tributaries), 05050006 (upper Kanawha River and tributaries), 05050007 (Elk River and tributaries), 05050008 (lower Kanawha River and tributaries), 05050009 (Coal River and tributaries), 05070101 (upper Guyandotte River and tributaries), 05070102 (lower Guyandotte River and tributaries), 05070201 (Tug Fork River and tributaries), 05070204 (Big Sandy River and tributaries), 05090101 (lower Ohio River and tributaries such as Four Pole Creek) and 05090102 (Twelvepole Creek and tributaries) within the state of West Virginia. The service areas are within the regulatory boundaries of either the CorpsHuntington District or the Pittsburgh District.


SOLICITATION OF COMMENTS: 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 this proposed ILF project. For accuracy and completeness of the administrative record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition.  Any person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the ILFP modification. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Any comments received will be considered by the Corps to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Any comments received will be considered by the Corps to determine whether to approve, modify, condition or deny this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above.

Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. Written statements on these factors received in this office on or before the expiration date of this Public Notice will become a part of the record and will be considered in the final determination. A permit will be granted unless its issuance is found to be contrary to the public interest.

CLOSE OF COMMENT PERIOD: All comments pertaining to this Public Notice must reach this office on or before the close of the comment period listed on page one of this Public Notice. If no comments are received by that date, it will be considered that there are no objections.

 Comments and requests for additional information should be submitted to:


U.S. Army Corps of Engineers

ATTN: CELRH-RD-E Public Notice No. LRH-2013-00181-OHR

502 Eighth Street

Huntington, West Virginia 25701-2070


Please note the comments received in response to this Public Notice become part of our administrative record and, as such, may be available to the public under provisions of the Freedom of Information Act. Thank you for your interest in our Nation's water resources.  If you have any questions concerning this Public Notice, please contact Mr. Justin Elkins at the above address, by telephone at (304) 399-5271, or by email at