Public Notice 
U.S. Army Corps In Reply to Application Number
of Engineers NAB-2016-61875 (ST CHARLES WETLAND MITIGATION BANK)
Baltimore District
PN 20-61 Comment Period: September 24, 2020 to October 24, 2020
THE PURPOSE OF THIS PUBLIC NOTICE IS TO SOLICIT COMMENTS FROM INTERESTED PARTIES CONCERNING THE PROSPECTUS FOR DEVELOPMENT OF A PRIVATE COMMERCIAL COMPENSATORY MITIGATION BANK.
The Baltimore District, U.S. Army Corps of Engineers (Corps) and the Maryland Department of the Environment (MDE) have received a complete prospectus for the St. Charles Wetland Mitigation Bank (Bank) pursuant to the 2008 Mitigation Rule (33 CFR 332) proposing to establish a compensatory mitigation bank (“Bank”) and generate mitigation credits to offset unavoidable impacts to waters of the United States (U.S.) authorized under Section 404 of the Clean Water Act (33 USC 1344),. In addition, the Bank is proposed to generate mitigation credits to offset unavoidable impacts to waters of the State of Maryland authorized under Title 5 and Environment Article Annotated Code of Maryland. On 25 June 2013, the Corps issued joint Public Notice (PN) 13-42 for the original Bank prospectus submitted December 2012 by Bank Sponsor (Sponsor), St. Charles Community, LLC. Comments received in response to the PN were provided to the Sponsor concurrent with the Corps initial evaluation letter for consideration during the development of the Bank banking instrument. Since greater than five years has passed from the date of the initial PN, and in consideration that the Sponsor is continuing to develop their final draft instrument, the Corps believes a second Public Notice to allow for submittal of any additional comments is appropriate. Comments submitted in response to the original Public Notice do not need to be resubmitted, as the Bank prospectus attached to PN-13-42 has not changed, and all previously submitted comments are already part of the record. Comments received in response to this PN will be provided to the Sponsor for consideration in their continued development of the Bank draft instrument. The proposed Bank may also provide alternative types of mitigation for Corps of Engineers civil works projects as well as mitigation in connection with resolving Clean Water Act enforcement cases.
BANK SPONSOR:
St. Charles Community, LLC
A subsidiary of US Home Corporation
7035 Albert Einstein Drive, Suite 200
Columbia, Maryland 21046
Attn: Matthew Wineman
WATERWAY AND LOCATION OF THE PROPOSED BANK: The proposed 13-acre compensatory mitigation Bank is located at 5305 Piney Church Road, on an unnamed tributary to the Zekiah Swamp near Waldorf, Charles County, Maryland with the center of the site located approximately at Latitude:38.564’N, Longitude: -76.909’W. The Bank is located within the 8-digit U.S. Geological Survey Hydrologic Unit Code (USGS HUC), 02-07-01-11.
OVERALL PROJECT PURPOSE: The Sponsor proposes to establish, design, construct, operate, and maintain a 13-acre private commercial wetland compensatory mitigation bank to be known as St. Charles Wetland Bank (Bank). The proposed Bank will provide off-site compensatory mitigation for unavoidable impacts to wetlands and other waters of the United States authorized by a Department of the Army (DA) permit within the proposed geographic service area described below.
The attached prospectus provides a summary of the development of the proposed Bank and initiates the Corps’ review associated with establishment of this Bank, including the development of an approved mitigation banking instrument (MBI). A draft MBI may be prepared by the Sponsor following the Corps’ review of the comments received in response to this public notice and determination that the proposed Bank site has potential for providing appropriate compensatory mitigation for activities authorized by DA permits. An approved MBI is the legal document for the establishment, operation, use, and maintenance of the Bank in a way that complies with the regulations governing compensatory mitigation for activities authorized by Department of the Army permits granted by the U.S. Army Corps of Engineers.
Pursuant to 33 CFR 332.8(d)(4), the Corps has posted a full copy of the subject prospectus online so that it is available for review by the public. The prospectus may be downloaded from the Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS) at web address:
https://ribits.ops.usace.army.mil/ords/f?p=107:10:::NO::P10_BANK_ID:2877
PROJECT DESCRIPTION: The proposed establishment of this 13-acre Bank site involves the creation, enhancement and preservation of aquatic resources. It is proposed that ecological lift associated with establishment of this mitigation bank, including wildlife habitat, water quality and education would generate wetland and/or stream credits that are to provide off-site compensatory mitigation for activities authorized under a Department of the Army permit. Specifically, the following is a list of project objectives as described by the Sponsor:
- Establish approximately 3.89 acres of palustrine forested (PFO) wetlands;
- Enhancement 0.51 acres of palustrine open water (POW) to PFO wetlands through grading and planting;
- Enhancement 0.27 acres of POW to palustrine scrub-shrub (PSS) wetlands through grading and planting;
- Enhancement of 0.26 acres of POW to palustrine emergent (PEM) wetlands through grading and planting;
- Enhance of 2.22 acres of PEM wetlands to PFO wetlands with planting only;
- Enhancement of 0.23 acres of POW to PEM wetlands with minimal grading and planting;
- Preservation of 2.18 acres of PEM wetlands;
- Preservation of 0.57 acres of PSS wetlands;
- Preservation of 0.22 acres of PFO wetlands; and 1.98 acres of upland buffer.
- The Bank is proposed to be protected in perpetuity via recordation of a real estate instrument such as a conservation easement or restrictive covenant.
- Upon Bank closure, the bank is proposed to be managed long term by the sponsor.
PROPOSED SERVICE AREA: The service area of a bank is a geographic area, such as a watershed or ecoregion, within which the mitigation bank is authorized to provide compensatory mitigation required by Department of the Army permits. The proposed primary service area for the Bank would include the Lower Potomac River Basin Watershed, 8 digit USGS HUC: 02-07-00-11. The proposed secondary service area would include the Middle
Potomac-Anacostia-Occoquan sub-basin 8 digit USGS HUC 02-07-00-10. The use of the secondary service area would be considered by the Corps only when credits are not available from another approved mitigation bank within the primary service area and the applicant demonstrates that the mitigation credits will replace the lost aquatic functions and services at the impact site. Impacts to coastal and tidal aquatic resources would be excluded from mitigating at this nontidal Bank.
MITIGATION BANK APPROVAL AND PERMITTING PROCESSES: This Bank may be one of a number of practicable options available to applicants to compensate for unavoidable impacts associated with permits issued under the authority of Section 404 of the Clean Water Act. Released mitigation bank credits are generally the preferred option for compensatory mitigation because banks consolidate resources, involve more financial planning and scientific expertise, and must meet certain performance standards, thereby reducing risks associated with mitigation projects. Approval to use an approved Bank site to offset impacts for a specific project is the decision of the Corps pursuant to Section 404 of the Clean Water Act. The Corps provides no guarantee that any particular individual or general permit will be granted authorization to use an approved Bank site to compensate for unavoidable impacts associated with a proposed permit. Authorization by the MDE
may also be required to use this Bank to offset specific impacts regulated by the Maryland.
Issuance of a public notice regarding proposed compensatory mitigation bank sites is required pursuant to 33 C.F.R. § 332.8(d)(4) and 40 C.F.R. § 230.98(d)(4). The proposed establishment of the compensatory mitigation Bank will be evaluated pursuant to the 2008 Mitigation Rule (33 CFR Part 332).
The Sponsor must obtain the appropriate federal, state, and local permits required to implement the Bank restoration activities. The Sponsor would submit an application for a Corps permit should the Bank mitigation activities involve a discharge of dredge or fill material within waters of the U.S. or work within navigable waters of the U.S. and receive Corps authorization prior to initiating construction activities. The Corps would complete consultation, if appropriate, under the Endangered Species Act, the National Historic Preservation Act and other applicable federal laws, prior to any DA permit authorization for construction of the Bank site.
Based upon a preliminary review of the prospectus, the proposed work to develop the compensatory mitigation Bank site may result in temporary and/or permanent impacts to waters of the U.S. or work within navigable waters of the U.S. No permit application has been submitted to date for the proposed construction activities associated with development of the Bank. A preliminary review indicates that the proposed work may qualify for Corps authorization under the Nationwide Permit (NWP) #27 (Aquatic Habitat Restoration, Enhancement, and Establishment Activities) or State Programmatic General Permit (SPGP). Both the SPGP and NWP #27 have undergone a full public interest review as required by Corps regulations (33 CFR 320.4(a)), and NEPA documentation has been prepared that addresses environmental considerations.
Please refer to the table below for a summary of approximate aquatic resource impacts to construct the compensatory mitigation bank.
EFFECTS ON AQUATIC RESOURCES:
|
Activity (i.e. culvert)
|
Stream Impact (lf)
|
Wetland Impact (Sq. Ft.)
|
Authority (Section 10/404/408)
|
|
Ecological restoration
|
0
|
96,703 Square feet
|
Section 404
|
In addition, the proposed work would impact approximately 122,464 square feet of State regulated nontidal wetland buffer.
LEAD FEDERAL AGENCY: The U.S. Army Corps of Engineers, as the lead federal agency, is responsible for all coordination pursuant to applicable federal authorities.
The Interagency Review Team (IRT) responsible for review, approval, and oversight of the proposed mitigation bank includes representatives from the Corps, the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, National Marine Fisheries Service and MDE. The Baltimore District of the U.S. Army Corps of Engineers (Corps) chairs the IRT and MDE co-chairs the IRT.
ENDANGERED SPECIES: A preliminary review of this prospectus indicates that the proposal will have no effect 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 (MSFCMA), 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 (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH), including species of concern, life cycle habitat, or Habitat Areas of Particular Concern. The project site does not lie in or adjacent to EFH as described under MSFCMA for managed species under the MSFCMA. The Baltimore District has made a preliminary determination that the project will have no effect on EFH. The Baltimore District has made a preliminary determination that mitigative measures are not required to minimize adverse effects on EFH at this time. 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 reviewed the latest published version of the National Register of Historic Places and initially determined that no properties listed or eligible for inclusion, in the National Register of Historic Places, are located at the site of the proposed Bank. The Corps has made the preliminary determination that the proposed project would have no 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/.
The applicant must obtain any State or local government permits which may be required.
NOTE: This public notice is being issued based on information furnished by the Bank Sponsor. This information has not been verified or evaluated to ensure compliance with laws and regulation governing the regulatory program.
REQUEST FOR PUBLIC HEARING: Any person may request a public hearing. The request must be submitted in writing to the District Engineer within the designated comment period of the notice and must state the specific reasons for requesting the public hearing.
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 to help inform the Corps and the IRT as to the overall merits of the proposed Bank, the scope of the proposed mitigation bank, the delineation of the proposed service area, the ecological suitability of the Bank site to achieve restoration of waters of the U.S., and to identify project aspects that should be addressed during the development of final MBI. Any comments received will be considered by the Corps of Engineers to determine whether the proposal has the potential to provide mitigation opportunities for project proponents (permittees) authorized to impact waters of the U.S. under Section 404 of the Clean Water Act as a means of resolving Section 404 enforcement actions. 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.
Written comments concerning the proposed Bank 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’s email address below. All comments should reference the Application Number 2016-61875.
Mr. Steve Harman
(steve.harman@usace.army.mil)
U.S. Army Corps of Engineers, Baltimore District
Regulatory Branch
2 Hopkins Plaza
Baltimore, MD 21201-2930
Ms. Kelly Neff, MDE
(kelly.neff@maryland.gov)
MDE, Mitigation and Technical Assistance Section
1800 Washington Boulevard, Suite 430
Baltimore, Maryland 21230-1708
Please share this information concerning the proposed work with any persons known by you to be interested, who did not receive a copy of this notice.
General information regarding the Corps’ permitting and mitigation processes can be found on our website at https://www.nab.usace.army.mil/Missions/Regulatory.aspx. This public notice has been prepared in accordance with Corps implementing regulations at 33 CFR 325.3. If you have any questions concerning this specific project, or would like to request a paper copy of this public notice, please contact Mr. Steve Harman, Baltimore District, Corps, at 410.962.6082 (steve.harman@usace.army.mil) or by contacting Ms. Kelly Neff, MDE, Wetlands and Waterways Program at 410.537.4018 (kelly.neff@maryland.gov). This public notice is issued by the Chief, Regulatory Branch.