Public Notice
U.S. Army Corps In Reply to Application Number
of Engineers NAB-2014-00371-P02 (Pennsylvania Integrated Ecological
Services Capacity Enhancement and Support)
Pittsburgh District Baltimore District Philadelphia District
SPN-20-11 Comment Period: February 18, 2020 to March 19, 2020
THE PURPOSE OF THIS SPECIAL PUBLIC NOTICE IS TO INFORM INTERESTED PARTIES OF THE PROPOSED ACTIVITY AND TO SOLICIT COMMENTS CONCERNING THE PROPOSED DEVELOPMENT OF AN IN-LIEU FEE (ILF) COMPENSATORY WETLAND AND STREAM MITIGATION PROGRAM BY THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION (PADEP) FOR USE THROUGHOUT THE COMMONWEALTH OF PENNSYLVANIA.
This Special Public Notice is issued jointly by the Baltimore, Philadelphia, and Pittsburgh District of the U.S. Army Corps of Engineers.
The PADEP proposes to establish the Pennsylvania Integrated Ecological Services Enhancement and Support (PIESCES) ILF program under the provisions of 33 CFR Part 332.8. On April 11, 2014, the Corps issued joint Special Public Notice SPN-14-24 for the PIESCES ILF prospectus submitted by the PADEP. Comments received in response to the Special Public Notice were provided to the PADEP concurrent with the Corps initial evaluation letter for consideration during the development of the PIESCES ILF draft instrument. Since greater than five years has passed from the date of the initial Special Public Notice, and in consideration that the PADEP is continuing to develop their PIESCES ILF draft instrument, the Corps believes a second Special Public Notice to allow for submittal of any additional comments is appropriate. Comments submitted in response to the original Special Public Notice do not need to be resubmitted, as the PIESCES prospectus attached to SPN-14-24 has not changed, and all previously submitted comments are already part of the record. Comments received in response to this Special Public Notice will be provided to the PADEP for consideration in their continued development of the PIESCES ILF draft instrument.
SPONSOR: Mr. Sidney Freyermuth
Pennsylvania Department of Environmental Protection
Bureau of Waterways Engineering & Wetlands
Rachel Carson State Office Building
400 Market Street
Harrisburg, Pennsylvania 17101
If approved, the proposed PIESCES ILF program will replace the Pennsylvania Wetland Replacement Project ILF program and operate in compliance with the 2008 Mitigation Rule (33 CFR Part 325 and 332) providing a third-party compensatory mitigation option for Department of the Army (DA) authorizations and/or violations under Section 404 of the Clean Water Act (33 U.S.C. 1344) and/or Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). This ILF program would potentially provide permit applicants a joint state/federal option for meeting aquatic resource compensatory mitigation needs in compliance with both state and federal regulations. The proposed PIESCES ILF program would be applicable for use in providing compensatory mitigation of aquatic resources impacts throughout the Commonwealth of Pennsylvania, within the regulatory boundaries of the Baltimore, Philadelphia, and Pittsburgh Districts of the U.S. Army Corps of Engineers.
A copy of the proposed PIESCES prospectus is attached to this Special Public Notice. This prospectus provides a summary of the information regarding the PADEP proposed PIESCES ILF program 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). In addition, a copy of the prospectus is available online in the Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS) at http://ribits.usace.army.mil
The proposed PIESCES ILF program seeks to:
- Provide aquatic resource compensatory mitigation that offsets compensatory mitigation requirements for PADEP authorized impacts, DA authorized impacts, Corps of Engineers Civil Works project impacts, and/or to satisfy requirements of non-compliance issues or unauthorized activities (i.e., enforcement) to ensure a no net loss of acreage and/or functions of wetlands, streams, floodplains and other bodies of water.
- Ensure “no net loss” of acreage and/or functions of wetlands, streams, floodplains, and other bodies of water through establishment, enhancement, and restoration of aquatic resources.
- Provide a means to ensure that adequate compensatory mitigation of effected aquatic resources occurs within a framework that integrates the Commonwealth’s watershed planning and prioritization processes to the maximum extent practicable.
At this time, no decision has been made as to whether or not the proposed PIESCES ILF program will be approved for use to provide compensatory mitigation for activities authorized by DA permits. On April 10, 2008, the federal rule for “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule” (Mitigation Rule) was published in the Federal Register, and became effective on June 9, 2008. The implementing regulations for the Mitigation Rule are found in Department of the Army, Corps of Engineers 33 CFR Parts 325 and 332, and the U.S. Environmental Protection Agency in 40 CFR Part 230.
The Corps will evaluate the submitted PIESCES ILF program prospectus in accordance with all requirements of the Mitigation Rule in 33 CFR Parts 325 and 332; in consultation with the Pennsylvania Interagency Review Team (IRT); and in consideration of comments received from the general public in response to the Special Public Notices, to determine the potential of the proposed ILF program to provide compensatory mitigation for activities authorized by DA permits within the Commonwealth of Pennsylvania. The utilization of approved and established mitigation banks with available credits, and approved ILF programs, is given preference to other forms of compensatory mitigation in the hierarchy of potential mitigation options as contained in the Mitigation Rule (33 CFR 332.3(b)(1)-(6)). A final approved ILF instrument does not provide DA authorization for specific future projects impacting waters of the United States; exclude such future projects from any applicable statutory or regulatory requirements; or preauthorize the use of credits from the ILF program for any particular project. The Corps provides no guarantee that any particular individual or permit application will be granted authorization to use the ILF program to compensate for unavoidable aquatic resource impacts associated with a proposed project, even though compensatory mitigation may be available within the defined service area.
Oversight of the PIESCES ILF program will be undertaken by the Pennsylvania IRT, which is comprised of federal and state regulatory and resource agencies. The Baltimore District, U.S. Army Corps of Engineers serves as chair of the IRT, and the Pennsylvania Department of Environmental Protection serves as co-chair of the IRT.
The decision whether to approve this ILF program will be based on an evaluation of the probable impacts, including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonable 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, economic, 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, mineral needs, and consideration of property ownership and in general, the needs and welfare of the people.
ENDANGERED SPECIES: A preliminary review of this prospectus indicates that the proposed program is not likely to adversely affect federally-listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended. As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.
ESSENTIAL FISH HABITAT: The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 04-267), requires all federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat, including species of concern, life cycle habitat, or Habitat Areas of Particular Concern. The Corps has made a preliminary determination that the program will have no adverse effect on Essential Fish Habitat. This determination may be modified if additional information indicates otherwise.
HISTORIC RESOURCES: Pursuant to Section 106 of the National Historic Preservation Act of 1966 and applicable guidance, the Corps has made a preliminary determination that the proposed program would have no adverse effecton historic properties. The Corps final eligibility and effect determination will be based on coordination with the State Historic Preservation Office as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps’ identified permit area.
TRIBAL RESOURCES: Section 106 of the National Historic Preservation Act also requires federal agencies to consult with federally-recognized American Indian Tribes that attach religious and cultural significance to historic properties that may be affected by the agency’s undertaking. Corps Tribal Consultation Policy mandates an open, timely, meaningful, collaborative, and effective deliberative communication process that emphasizes trust, respect, and shared responsibility. The policy further emphasizes that, to the extent practicable and permitted by law, consultation works toward mutual consensus and begins at the earliest planning stages, before decisions are made and actions taken. The Corps final eligibility and effect determination will be based on coordination with interested tribes, in accordance with the Corps current tribal standard operating procedures as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on tribal resources.
MODIFICATION OF CIVIL WORKS PROJECTS: 33 USC 408 (SECTION 408): All Section 408 proposals will be coordinated internally at USACE. The Section 408 decision will be issued along with the Section 404 and/or Section 10 decision. Please see the following link for more information regarding Section 408: https://www.nab.usace.army.mil/section408/.
COASTAL ZONE MANAGEMENT PROGRAMS: Where applicable, the sponsor has indicated in their ILF program prospectus that the proposed activity complies with and will be conducted in a manner consistent with the approved Coastal Zone Management Program.
SUBMISSION OF COMMENTS: The Corps of Engineers 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 the impacts of the proposed PIESCES ILF program to provide compensatory mitigation for activities authorized by DA permits. Any comments received will be considered by the Corps of Engineers 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. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments provided will become part of the public record for this action and are subject to release to the public through the Freedom of Information Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.
Written comments concerning the proposed PIESCES ILF program described above related to the factors listed above or other pertinent factors must be received by the U.S. Army Corps of Engineers, Baltimore District within the comment period specified above through postal mail at the address below or electronic submission to the project manager email address below. Written comments should reference the Application Number NAB-2014-00371-P02 (Pennsylvania Integrated Ecological Services Capacity Enhancement and Support).
PUBLIC HEARING REQUESTS: Any person who has an interest which may be adversely affected by the approval of the program may request a public hearing. The request, which must be in writing, must be received within the comment period as specified above to receive consideration. Also it must clearly set forth the interest which may be adversely affected by this activity and the manner in which the interest may be adversely affected. The public hearing request may be submitted by electronic mail or mailed to the following address:
Michael Danko
(mike.danko@usace.army.mil)
U.S. Army Corps of Engineers, Baltimore District
Regulatory Branch
Carlisle Field Office
401 East Louther Street
Suite 205
Carlisle, PA 17013-2657
It is requested that you communicate this information concerning the proposed program to any persons known by you to be interested, who did not receive a copy of this notice.
General information regarding the Corps’ permitting process can be found on our website at https://www.nab.usace.army.mil/Missions/Regulatory.aspx. This Special Public Notice has been prepared in accordance with Corps implementing regulations at 33 CFR 325.3. If you have any questions concerning this specific program, or would like to request a paper copy of this Special Public Notice, please contact Mr. Wade B. Chandler, Chief, Pennsylvania Section, Baltimore District, U.S. Army Corps of Engineers at (814) 235-0572, wade.b.chandler@usace.army.mil, or Mr. Michael Danko, Regulatory Project Manager, Pennsylvania Section, Baltimore District, U.S. Army Corps of Engineers, at (717) 249-8730, mike.danko@usace.army.mil. This Special Public Notice is issued by the Chief, Regulatory Branch, Baltimore District.