Joint Public Notice
U.S. Army Corps In Reply to Application Number
of Engineers CENAB-OPR-M (Wye Mitigation Bank)
Baltimore District 2018-61106 Maryland Nontidal Wetlands License No. 18-NT-2073
PN 18-54 Comment Period: September 13, 2018 to October 13, 2018
THE PURPOSE OF THIS PUBLIC NOTICE IS TO SOLICIT COMMENTS FROM THE PUBLIC CONCERNING THE PROPOSED WYE MITIGATION BANK PROSPECTUS FOR DEVELOPMENT OF A PRIVATE COMMERCIAL MITIGATION BANK.
THE BALTIMORE DISTRICT, U.S. ARMY CORPS OF ENGINEERS (CORPS) AND THE MARYLAND DEPARTMENT OF THE ENVIRONMENT (MDE) ARE SOLICITING COMMENTS FROM THE PUBLIC; FEDERAL, STATE, AND LOCAL AGENCIES AND OFFICIALS; INDIAN TRIBES; AND OTHER INTERESTED PARTIES IN ORDER TO CONSIDER AND EVALUATE THE BANKING INSTRUMENT PROSPECTUS, THE PROPOSED WYE MITIGATION BANK, AND THE POTENTIAL OF THE PROPOSED MITIGATION BANK TO PROVIDE APPROPRIATE COMPENSATORY MITIGATION FOR ACTIVITIES AUTHORIZED BY DEPARTMENT OF THE ARMY AND STATE OF MARYLAND PERMITS.
At this time, no decision has been made as to whether or not the proposed Mitigation Banking Instrument for the Wye Mitigation Bank Site will be approved. We are requesting comments to determine if approval should be granted for the proposed Wye Mitigation Bank for the purpose of providing compensatory mitigation for future unavoidable wetland impacts authorized by the Department of the Army (DA) and MDE under Section 404 of the Clean Water Act (CWA) and Titles 5 and 16 Environment Article Annotated Code of Maryland. Such authorized use of a Bank must meet all applicable requirements and be authorized by the appropriate authorities.
Issuance of a public notice regarding proposed mitigation banks 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 325 and 332).
At this time, a complete application for work in waters of the United States or Waters of the State to construct the Wye Mitigation Bank Site has not been received by the Corps and the MDE. A preliminary review of the proposed site indicates that there may be waters of the United States or Waters of the State, including wetlands within the project area. These areas may be regulated pursuant to Section 404 of the Clean Water Act (CWA), the Maryland Nontidal Wetlands Protection Act, and the Maryland Waterway Construction Act, and the work described below may require Corps and MDE authorization.
The Corps and MDE have received the Wye Mitigation Bank Prospectus which is available at our website: http://www.nab.usace.army.mil/Missions/Regulatory/PublicNotices.aspx as an attachment to the electronic copy of this public notice. Those receiving notification of this public notice who desire a copy of the proposed Prospectus may either access the above website link or, may request a hard copy of the document by contacting Mr. Jason R. Peters, Baltimore District, Corps, Regulatory Easton Field Office at 410.820.8550 (Jason.R.Peters@usace.army.mil) or by contacting Ms. Kelly Neff, MDE, Wetlands and Waterways Program at 410.537.4018 (kelly.neff@maryland.gov).
This Prospectus provides a summary of the information regarding the proposed Mitigation Banking Instrument and the Wye Mitigation Bank Site in accordance with the Department of Defense/Environmental Protection Agency Final Rule on Compensatory Mitigation for Losses of Aquatic Resources (33 CFR Parts 325 and 332 and 40 CFR Part 230). Oversight of this mitigation bank will be undertaken by the Maryland Interagency Review Team (IRT), which is comprised of Federal and State regulatory and resource agencies. The Corps serves as chair of the IRT, and the MDE as co-chair the IRT.
This prospectus provides a summary of how the proposed Wye Mitigation Bank will be established, used, operated, and maintained and is provided in accordance with the Federal Final Rule on Compensatory Mitigation for the Losses of Aquatic Resources (33 CFR 325 and 332 and 40 CFR 230) and Code of Maryland Regulations (COMAR).
APPLICANT: Beverly W. Tilghman, Trustee
Richard Tilghman Family Enterprise Trust
26080 Bruffs Island Road
Easton, Maryland 21601
SPONSOR: Johnson, Mirmiran and Thompson, Inc.
Attn: Mr. Jim Morris, P.E. and Mr. Chandler Denison
40 Wight Avenue
Hunt Valley, Maryland 21030
The Sponsor proposes in accordance with the attached plans, to establish, design, construct, and operate a compensatory Mitigation Bank.
LOCATION AND WATERWAY: The mitigation bank site is proposed in the Miles and Wye River sub-watersheds on an approximately 58-acre parcel of land containing agricultural drainage ditches and farmed nontidal wetlands that drain off-site in a south westerly direction through unnamed tributaries to Leeds Creek. The site is located southeast of the intersection of Bruffs Island Road and Copperville Road, at 26400 Bruff Island Road, in Easton, Talbot County, Maryland (Latitude 38.832483, Longitude 76.154385).
BANK DESCRIPTION: The proposed Wye Mitigation Bank would provide compensatory mitigation for future unavoidable nontidal wetland and stream impacts authorized by a Section 404 CWA permit, a Maryland Nontidal Wetlands Protection Act permit and/or a Maryland Waterways Construction Act permit. This mitigation bank would be used to comply with special conditions for compensatory mitigation of permitted projects by providing in-kind compensation for authorized aquatic resource impacts. The proposed mitigation bank is comprised of approximately 1,470 linear feet of stream restoration, 3.62 acres of wetland enhancement, 47.59 acres of wetland restoration, and 4.57 acres of wetland buffer enhancement within an approximately 58 acre site protected by a permanent conservation easement. The mitigation bank may only be used for future projects after all appropriate and practicable steps to avoid and minimize adverse impacts to aquatic resources, including wetlands and streams, have been demonstrated.
BANK SERVICE AREA: The primary service area for the proposed mitigation bank is the Chester-Sassafras and the Choptank Watersheds (USGS 8-digit Hydrologic Unit Codes (HUC) 02060002 and 02060005, respectively) and the secondary service area is the Tangier and Nanticoke Watersheds (USGS 8-digit HUC 02080110 and 02080109, respectively).
WORK REQUIRING CORPS AND MDE AUTHORIZATION: At this time, a jurisdictional determination has not been performed by the Corps/MDE to confirm Federal and State jurisdiction at the proposed 58-acre mitigation bank. The proposed work to construct a wetland and stream mitigation bank involves grading, excavating and filling selective areas within the mitigation bank site by temporarily impacting approximately 3.62 acres of emergent nontidal wetland, 17.79 acres of State regulated 25-foot nontidal wetland buffer, and 1,470 linear feet perennial stream channel. Any impact to jurisdictional streams and/or wetlands must be approved by the Corps and MDE prior to commencing any regulated construction activities. The wetland buffer and floodplain impacts are subject to MDE regulations. These impacts are not subject to DA regulation.
The final mitigation banking instrument does not provide ultimate DA and/or State authorization for specific future projects impacting waters of the United States or Waters of the State; exclude such future projects from any applicable statutory or regulatory requirements; or preauthorize the use of credits from the bank for any particular project. The Corps and MDE provide no guarantee that any particular individual or general permit will be granted authorization to use this Mitigation Bank to compensate for unavoidable aquatic resource impacts associated with a proposed permit, even though compensatory mitigation may be available within the defined service area(s).
The decision whether to approve this mitigation bank and issue a permit for the impacts to waters of the United States will be based on an evaluation of the probable impacts including cumulative impacts of the proposed bank on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects, thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, and, in general, the needs and welfare of the people.
ENDANGERED SPECIES ACT: A preliminary review of this application using the U.S. Fish and Wildlife Service IPaC online screening tool indicates that the proposed work will not affect any Federal listed threatened, endangered, or candidate species and/or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended. The U.S. Fish and Wildlife Service (USFWS) Chesapeake Bay Field Office certified this on April 17, 2018. As the evaluation of this proposal continues, additional information may become available which could modify this determination.
NATIONAL HISTORIC PRESERVATION ACT: Review of the latest published version of the National Register of Historic Places indicates that no registered properties listed as eligible for inclusion therein are located at the site of the proposed work. Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the requested permit. The Maryland Historical Trust (MHT) on May 21, 2018 made the determination that there are no historic properties affected by this undertaking. As the evaluation of this proposal continues, additional information may become available which could modify this determination.
WRITTEN COMMENTS: Written comments concerning the activity described above must be submitted directly to the District Engineer, U.S. Army Corps of Engineers, Baltimore District [ATTN: Mr. Jason R. Peters, CENAB-OPR-M], 2 Hopkins Plaza, Baltimore, Maryland, 21201 or by email to Jason.R.Peters@usace.army.mil and to the Maryland Department of the Environment [ATTN: Ms. Kelly Neff, Mitigation and Technical Assistance Section], 1800 Washington Boulevard, Suite 430, Baltimore, Maryland 21230-1708 or by email to kelly.neff@maryland.gov, within the comment period as specified above to receive consideration.
Requests to be included on the MDE interested persons list may be sent to MDE, Attn: Kelly Neff, 1800 Washington Boulevard, Suite 430, Baltimore, MD 21230 or kelly.neff@maryland.gov or 410-537-4018. Any further notices concerning actions on the application will be provided only by mail to those persons on the interested persons list. Please refer to Subsection 5-907 of the Annotated Code of Maryland or the Code of Maryland Regulations 26.23.02 for information regarding the State application process.
The applicant must obtain any State or local government permits which may be required.
It is requested that you communicate this information concerning the proposed work to any persons known by you to be interested and not being known to this office, who did not receive a copy of this notice.
FOR THE DISTRICT ENGINEER:
KATHY B. ANDERSON
Chief, Maryland Section Southern
Kelly Neff
Chief, Wetland Mitigation & Technical Assistance Section
Maryland Department of the Environment