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LRH 2014-199 Ohio Wetlands Foundation Stream In-Lieu Fee Program for the Upper Scioto and Tuscarawas Watersheds

Published Dec. 30, 2014
Expiration date: 1/28/2015

TO WHOM IT MAY CONCERN: A prospectus has been submitted 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) and/or Section 10 of the Rivers and Harbors Act of 1899 (Section 10) with a primary service area in two eight-digit hydrologic unit code (HUC) watersheds (Upper Scioto River 05060001 and Tuscarawas River 05040001) in the State of Ohio, within the boundaries of the U.S. Army Corps of Engineers (Corps) Huntington District.  The purpose of this public notice is to solicit comments regarding the establishment of the proposed ILFP.

This is not an application for work in federally regulated waters; however, authorization under Sections 404/10 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. 

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.

 

ESTABLISHMENT/OPERATION OF THE ILFP: Under Sections 404/10, DA permit recipients are often required to mitigate for effects to aquatic resources by restoring, enhancing, or in exceptional circumstances, preserving aquatic resources.  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 Ohio IRT is presently comprised of the Corps (Huntington, Buffalo 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.

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.  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 Sections 404/10.  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 404/10. 

 

SPONSOR:                Ohio Wetlands Foundation

                                   1220 Stone Run Court

                                    Lancaster, Ohio 43130

 

PURPOSE: The Ohio Wetlands Foundation has submitted a prospectus to the Huntington District to initiate the development of a stream ILFP to meet compensatory mitigation requirements for future permits issued under Section 404 and Section 10.  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 DA permits granted by the 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 6111) that authorizes the Ohio Environmental Protection Agency to regulate all waters of the State.  In May 2014, an ILFP for wetlands was approved for the Ohio Wetlands Foundation.

 

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 with this notice on the Huntington District’s website:

            http://www.lrh.usace.army.mil/Missions/Regulatory/PublicNotices.aspx

 

PROPOSED SERVICE AREA: The ILFP is proposed only within the geographic boundaries of the Huntington District within two eight-digit HUC primary service areas (Upper Scioto River 05060001 and Tuscarawas River 05040001) with a secondary service area proposed within two six-digit HUC watersheds (Scioto River Watershed 050600 and the Muskingum River Watershed 050400). 

 

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 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.  The requests for public hearing shall state, with particularity, the reasons for holding a public hearing.  The District Engineer will determine if the issues raised are substantial and whether a hearing is needed.

 

COMMENTS OR REQUEST FOR ADDITIONAL INFORMATION: 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.  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 proposed prospectus 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-2014-999) and be directed to the Regulatory Division at the above address. 

 

If you have any questions pertaining to this public notice or the prospectus, please contact Jacob Siegrist by mail using the address listed above, by telephone at (513) 825-4489, or by email at  jacob.a.siegrist@usace.army.mil.