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LRH-2013-112

Published March 20, 2013
Expiration date: 4/19/2013

Interested parties are hereby notified that a prospectus has been received pursuant to 33 CFR 332 proposing the establishment of an In Lieu Fee Program (ILFP) to provide mitigation for impacts to waters of the United States (U.S.) under Section 404 of the Clean Water Act (Section 404) Act within two (2) eight digit hydrologic unit code (HUC) watersheds within the State of Ohio. The purpose of this public notice is to solicit comments from the public regarding the establishment of the proposed 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, if approved.  Such sites would be advertised under separate public notices.  No decision has been made as to whether this ILFP will be approved.

 

SPONSOR: The Ohio Wetlands Foundation, 1220 Stone Run Court, Lancaster, Ohio 43130

 

PURPOSE:  The Ohio Wetlands Foundation has provided a prospectus to initiate the development of an ILFP to meet compensatory mitigation requirements for future permits issued under Section 404 and 401 of the Clean Water Act and the Ohio Isolated Wetlands Permit Program. The purpose of the prospectus 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 Department of Army (DA) permits granted by the U.S. Army Corps of Engineers (Corps).  If approved by the State of Ohio, the proposed ILFP could also be used as compensatory mitigation for activities authorized under Ohio Revised Code (ORC Chapter 611 – Isolated Wetlands and/or Ohio Administrative Code (OAC 3745-1) authorized by the Ohio Environmental Protection Agency.

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 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 prospectus is outlined in 33 CFR 332.8(d)(2).  A complete copy of the prospectus is posted on the Huntington web site public notices page (http://www.lrh.usace.army.mil/Missions/Regulatory/PublicNotices.aspx).  The prospectus is also available for review in each of the offices listed on Attachment A. Optimal times to review the prospectus are between the hours of 9:00 AM and 3:00 PM, Monday through Friday. Please call the 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 of the 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 Ohio Department of Natural Resources and the Ohio Environmental Protection Agency.

 

If the prospectus is deemed sufficient, the ILFP will be established through the development of an ILFP instrument to be 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 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. 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. 

 

Proposed Service Area:  The ILFP is proposed to include the Tuscarawas and Upper Scioto watersheds within the Ohio portion of the Huntington District.  The applicable 8 digit HUC (Hydrologic Unit Code, a designation for the watershed drainage area encompassed) regions are 05040001 (Tuscarawas River), and 05060001 (Scioto River-headwaters to below Big Darby Creek) within the State of Ohio. The service areas are within the regulatory boundaries of the Corps Huntington District.

 

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. Any comments received will be considered by the Corps in determining whether to allow the sponsor to proceed to develop a draft ILFP instrument.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the 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 prospectus.  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-2013-00112) and be directed to the attention of Sheila Newman, who can be contacted at the above address, by calling (740) 454-2225 ext 5, or by email at Sheila.M.Newman@usace.army.mil.  Comments submitted in response to this notice will be fully considered during the review for this prospectus. 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 Interagency Review Team.

 

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.