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LRH 2014-0052-OHR

Published July 20, 2018
Expiration date: 8/19/2018

TO WHOM IT MAY CONCERN: The district engineer has received a request to modify an approved in-lieu fee (ILF) program instrument to implement an ILF project, in the State of West Virginia (WV), for Federal and State permits as described in this Public Notice.  Issuance of a Public Notice regarding proposed ILF projects 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).  In addition, the proposed ILF project has been submitted for authorization under the provisions of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.  The United States (U.S.) Army Corps of Engineers (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 ILF project 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.


INTERAGENCY REVIEW TEAM: As indicated in the Corps’ regulations (33 CFR 332.8(b)), the district engineer will establish an Interagency Review Team (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 ILF instruments.  The IRT reviews draft prospectuses, prospectuses, instruments, and other documents and provides comments to the Corps. The WV 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), WV Department of Environmental Protection (WVDEP), and WV Division of Natural Resources (WVDNR).


ILF: An ILF program 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 Department of the Army (DA) permits.  Similar to a mitigation bank, an ILF sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the ILF sponsor.  As ILF project sites are identified and secured, the ILF sponsor must submit 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 ILF projects will be conducted in accordance with the procedures in 33 CFR 332.8(g)(1), as modifications of the ILF instrument.



WV ILF Stream and Wetland Mitigation Program

601 57th Street, SE

Charleston, WV 25304


PURPOSE: WVDEP operates an approved ILF program, which includes the entire state of WV. They have submitted a revised proposal to modify their approved ILF instrument to implement an ILF project (i.e., Frozen Camp Wildlife Management Area (WMA) ILF Site) within the 8-digit Hydrologic Unit Code (HUC-8) No. 05030202, the Middle Ohio South watershed. The primary objective of the proposed ILF project is to restore wetland functions to generate stream and wetland mitigation credits to fulfill compensatory mitigation obligations assumed by the WV ILF Program through advance credits sold in the WVDEP’s Secondary Service Area (SSA) 1, which includes the following HUC-8 watersheds: Little Kanawha (HUC-8 05030203), Middle Ohio South (HUC-8 05030202), Middle Ohio North (HUC-8 05030201), Upper Ohio South (HUC-8 05030106), and Upper Ohio North (HUC-8 05030101).


LOCATION: The proposed project site is located on 8.573 acres within Jackson and Roane Counties along Left Fork of Frozen Camp approximately 1.3 miles southeast of Marshall, WV (38.8063°, -81.5277°).  The proposed project area involves land that is primarily owned by the WVDNR associated with a wildlife management area. The proposed project site involves the Left Fork of Frozen Camp and includes the adjacent wetlands, floodplain, and riparian corridor.  Left Fork of Frozen Camp is an indirect tributary to the Ohio River, a navigable water of the U.S.  This proposal has been assigned DA file number LRH-2014-00542-OHR.


DESCRIPTION OF PROPOSED ACTIVITY: The ILF sponsor has submitted a compensatory mitigation plan to the Corps, Huntington District proposing to establish and manage one (1) ILF project identified as the Frozen Camp WMA ILF Site.  A complete copy of the Mitigation Plan; Frozen Camp WMA In-Lieu Fee Mitigation Project, dated May 24, 2018, is available for review upon request.


The sponsor has indicated the proposed ILF project has been identified and selected in accordance with the Compensation Planning Framework of their approved ILF instrument. The sponsor proposes to generate approximately 3,102.4 stream credits through stream restoration, enhancement, re-establishment and preservation and 2.216 wetland credits through wetland restoration, establishment, enhancement, and preservation. The specific objective of this proposed ILF project is to restore stream and wetland functions that have been lost or impaired as a result of past and present land use practices. These functions include, but are not limited to, water quality, flood storage, wildlife habitat, and ecosystem integrity and connectivity.


The sponsor has proposed site-specific performance standards to ensure streams and wetlands and their associated buffers/uplands are restored within the ILF project site, and the sponsor has proposed a credit release schedule based on development of the site toward meeting the performance standards within a monitoring period. The ILF project would be monitored for a period of 10 years relative to the achievement of the performance standards, and reports would be submitted to the WV IRT describing the findings of the monitoring efforts.  The sponsor has indicated financial assurances would be provided for the ILF project to ensure a high-level of confidence that the ILF project will be successfully completed in accordance with its performance standards. The sponsor has proposed a long-term management plan and a long-term management funding mechanism. Upon attainment of all performance standards and after all advance credits have been fulfilled, and released credits sold, if applicable, the ILF project would be transferred to a third party long-term manager. The sponsor proposes to provide long-term protection of the entire ILF project site through an agreement with the WVDNR. The sponsor has identified the WVDNR as the proposed long-term manager and protection instrument holder.


Figure 1 of 5 shows the location of the proposed ILF project, Figure 2 of 5 shows the watershed location proposed service area for the proposed ILF project, Figure 3 of 5 shows the proposed ILF project watershed land cover/land use, Figure 4 of 5 shows the proposed ILF project site delineation, and Figure 5 of 5 shows the proposed resource development at the ILF project.


DA PERMITS: The establishment and use of the proposed ILF project would be as specified in the modification to the existing ILF instrument. Authorization of the proposed ILF project will be evaluated under the Nationwide Permit No. 27 described in the January 6, 2017 Federal Register, Issuance and Reissuance of Nationwide Permits (82 FR 1860).


WATER QUALITY CERTIFICATION: In accordance with Nationwide Permit No. 27, a general Section 401 Water Quality Certification was granted by the WVDEP.


HISTORIC AND CULTURAL RESOURCES: This ILF project must be reviewed to determine any potential effects to properties that may be eligible for or listed on the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act.  The NRHP has been consulted and there are no listed properties within the project boundaries.


In a letter dated August 24, 2015 (File No. FR#15-873-MULTI), the WV State Historic Preservation Office (SHPO) stated that there are no previously documented archaeological resources within the vicinity of the proposed project and associated area of potential effect (APE). Furthermore, previous archaeological survey within the area has occurred yielding negative results. In consideration of the activities proposed in conjunction with the overall undertaking, the WV SHPO stated it is unlikely any cultural resources would be encountered. Subsequently, the WV SHPO determined the project would have no effect on historic properties and that no further consultation is necessary.


This Public Notice serves as coordination with the WV SHPO, pursuant to Section 106 of the National Historic Preservation Act of 1966. A copy of this Public Notice will be furnished to the SHPO for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.


THREATENED & ENDANGERED SPECIES: This Public Notice will serve as coordination with the USFWS concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act of 1972 (as amended). Four (4) federally-listed threatened or endangered species have the potential to occur within the project area. The project is located within the range of the Indiana bat (Myotis sodalis), northern long-eared bat (Myotis septentrionalis), fanshell mussel (Cyprogenia stegaria), pink mucket pearly mussel (Lampsillis abrubta), sheepnose mussel (Plethobasus cyphyus), and snuffbox mussel (Epioblasma triquetra).


The project is not located within any known use areas for the aforementioned species and there is no critical habitat within the project vicinity. Although minimal tree clearing is proposed in conjunction with the project, the goal of the overall project is to generate an ecological lift facilitated in part by additional plantings that are anticipated to increased canopy cover and improved habitat. Best management practices would be implemented concurrently with the work in order to reduce the potential of temporary, indirect effects within the restoration area and downstream. Construction would commence at the upstream portion and proceed downstream with all in-stream work conducted during low flow periods wherever possible. Erosion and sediment control practices would be utilized and remain in place until the final grading is complete with construction areas adequately stabilized, reseeded, and mulched.


In a letter dated February 8, 2016 (FWS File No. 2016-I-0282) the USFWS Elkins Field Office determined the project would have no effect on any federally-listed threatened or endangered species and no further consultation was required. Based on information provided by the USFWS West Virginia Field Office, the Corps has consulted the most recently available information and has determined the proposed project would have no effect on the Indiana bat, northern long-eared bat, fanshell mussel, pink mucket pearly mussel, sheepnose mussel, or snuffbox mussel.


This Public Notice serves as a request to the USFWS for any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).


PUBLIC INTEREST REVIEW AND COMMENT: This proposal will be reviewed in accordance with 33 CFR 320-332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders. Interested parties are invited to state any objections they may have to the proposed work.  The proposed ILF project is under evaluation for compliance with the terms and conditions of Nationwide Permit No. 27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities.  If determined necessary, an individual DA permit pursuant to the procedures outlined at 33 CFR 325.2 would be required.  For individual DA permits, the decision whether to approve ILF project will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activities on the public interest. That decision will reflect the national concern for both protection and utilization of important resources.  The benefit that reasonably may be expected to accrue from the proposals must be balanced against their reasonably foreseeable detriments.  All factors that may be relevant to the proposals will be considered including the cumulative effects thereof; of those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.  Our evaluation will also follow the guidelines published by the USEPA pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR part 230). 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.


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 ILF project. 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.


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-2014-00542-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. Wes Barnett at the above address, by telephone at (304) 399-6905, or by e-mail at