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LRH-2013-181-OHR

Published Feb. 20, 2013
Expiration date: 3/22/2013

Interested parties are hereby notified that a proposal to modify an existing In Lieu Fee Program (ILFP) has been received pursuant to 33 CFR 332 to provide mitigation for impacts to waters of the United States (U.S.) under Section 404 ofthe Clean Water Act (Section 404) and/or Section I 0 of the Rivers and Harbors Act of 1899 (Section I 0) within thirty-two (32) eight digit hydrologic unit code (HUC) watersheds within the State of West Virginia. The purpose of this public notice is to solicit comments from the public regarding the proposed modification of this ILFP.

This is not an application for work in federally regulated waters; however, authorization under Section 404 may be required for implementation of particular mitigation sites later proposed under the ILFP, ifapproved. Such sites would be advertised under separate public notices. No decision has been made as to whether this ILFP will be approved.

SPONSOR: West Virginia Department of Environmental Protection, 60I 57th Street SE, Charleston, West Virginia 25304

PURPOSE: The West Virginia Department of Environmental Protection (WVDEP) has proposed to modify the existing ILFP between the WVDEP and the U.S. Army Corps of Engineers (Corps) dated January 25, 2006 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 ofthe program in a way that complies with the regulations governing compensatory mitigation for activities authorized by Department of Army (DA) permits granted by the Corps. The modification is also proposed to bring the existing ILFP into compliance with the requirements of 33 CFR 332 (al so known as the "Mitigation Rule," published in the April 10, 2008 Federal Register). If approved by the State of West Virginia, the proposed JLFP could also be used as compensatory mitigation for activities authorized for other impacts to waters of the State (defined at WV Code 22-Il-3) as regulated by theWVDEP. .

IN-LIEU FEE PROGRAM DEFINITION: An ILFPis a program involving the restoration, establishment, enhancement, and/or preservation ofaquatic resources through fund s 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.

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 Districts' respective web sites' public notice pages. The web addresses for each District are listed on Attachment A. The modified instrument is also available for review in each ofthe offices listed on Attachment A. Optimal times to review the prospectus would be between the hours of9:00 AM and 3:00PM, Monday through Friday. Please call the respective point of contact listed on Attachment A to make arrangements.

Establishment/operation of the ILFP: Under Section 404, applicants for DA permits to discharge dredged or fill material into waters ofthe U.S., including wetlands, are often required to mitigate for permitted wetland losses by creating, restoring, enhancing, or in exceptional circumstances, preserving wetland 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 Interagency Review Team (IRT). The IRT is presently comprised of the Corps, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Department of Agriculture-Natural Resources Conservation Service, the West Virginia Department of Natural Resources and the WVDEP.

: Under Section 404, applicants for DA permits to discharge dredged or fill material into waters ofthe U.S., including wetlands, are often required to mitigate for permitted wetland losses by creating, restoring, enhancing, or in exceptional circumstances, preserving wetland 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 Interagency Review Team (IRT). The IRT is presently comprised of the Corps, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Department of Agriculture-Natural Resources Conservation Service, the West Virginia Department of Natural Resources and the WVDEP.

 

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 process will follow 33 CFR 332, Compensatory Mitigation for Losses of Aquatic Resources ("Mitigation Rule"). The Mitigation Rule was published in the Federal Register on April 10, 2008. The modified ILFP would provide an alternative to permittee-responsible mitigation if it is deemed appropriate during the review process 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, 8-digit HUC (Hydrologic Unit Code, a designation for the watershed drainage area encompassed) 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 ofthe 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 the Corps Huntington and Pittsburgh Districts.

PUBLIC INTEREST REVIEW: 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 ILFP modification. Any comments received will be · considered by the Corps in determining whether to approve the modified ILFP instrument. Comments are also used to determine the need for a public hearing and to determine the overall public interest ofthe proposed activity.

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 modified instrument. Requests for a public hearing shall state, with particularity, the reason for holding a public hearing. The District Engineer will determine if the issues raised are substantial and whether a hearing is needed for making a decision.

COMMENTS OR REQUEST FOR ADDITIONAL INFORMATION: Comments or questions pertaining to this prospectus should reference the application number (LRH-2013-1810HR) and be directed to the attention of James Spence, who can be contacted at the above address, by calling (304) 399-5610 or by email at james.b.spence@usace.army.mil. Comments submitted in response to this notice will be fully considered during the review for this modified instrument. All written comments will be made part of the administrative record which is available to the public under the Freedom of Information Act. The administrative record or portions thereof may also be posted on a Corps internet website. Due to resource limitations, this office will normally not acknowledge the receipt of comments or respond to individual letters of comment. Copies of comments received will be forwarded to the sponsor and to the members of the 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 work described herein may do so by submitting their comments in writing so they are received no later than the expiration date of this notice.

 

Attachment A:

The West Virginia Department of Environmental Protection' "West Virginia In-Lieu Fee Mitigation Program Instrument" is available for review at the following web sites:

Huntington District Web site: http://www.lrh.usace.army.mil/Missions/Regulatory/PublicNotices.aspx

Pittsburgh District Web site: http://www.lrp.usace.army.mil/or/or-f/public notice.htm

Individuals may also make arrangements to review the Instrument at the following office locations:

Pittsburgh District Office, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222 POC: Donald R. Bole, (412) 395-7576, donald.r.bole@usace.army.mil

Huntington District Office, 502 Eighth Street, Huntington, West Virginia 25701 POC: James B. Spence, 304-399-6905, james.b.spence@usace.army.mil