PN-24-25 NAB-2022-61427 M49 (ACRE LLC-Carpenter Farms Mitigation Bank)

                       Public Notice
U.S. Army Corps              In Reply to Application Number
of Engineers                    NAB-2022-61427 M49 (ACRE LLC UMBI - Carpenter Farms Mitigation Bank)

Baltimore District

PN-24-25                          Comment Period: August 12, 2024 to September 11, 2024

THE PURPOSE OF THIS PUBLIC NOTICE IS TO SOLICIT COMMENTS FROM INTERESTED PARTIES CONCERNING THE PROSPECTUS FOR DEVELOPMENT OF AN UMBRELLA MITIGATION BANKING INSTRUMENT (UMBI) AND A PRIVATE COMMERCIAL UMBRELLA COMPENSATORY MITIGATION BANK.

The Baltimore District, United States Army Corps of Engineers (Corps) has received a complete prospectus pursuant to the 2008 Mitigation Rule (33 CFR 332) proposing to establish the Carpenter Farms Umbrella Mitigation Banking Instrument (“CFUMBI”) including the Carpenter Farms North Bank Site compensatory mitigation bank (“Bank”) to generate mitigation credits to offset unavoidable impacts to waters of the United States authorized under Section 404 of the Clean Water Act (33 USC 1344). In addition, the proposed CFUMBI and Bank may be used to generate compensatory mitigation credits to offset unavoidable impacts to wetlands and/or waters regulated by the State of Maryland under Titles 5 and 16 Environment Article Annotated Code of Maryland. Finally, the proposed CFUMBI and 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:

ACRE Investment Management, LLC
Attn: Mr. Chandler Van Voorhis
4243 Jackson Street
The Plains, Virginia 20198

WATERWAY AND LOCATION OF THE PROPOSED WORK:

The proposed approximately 67.5-acre Bank Site is located at approximately 1706 Dixon Tavern Road, in Barclay, Queen Anne’s County, Maryland, 21607 with the center of the site located approximately at Latitude: 39.1418°, Longitude: -75.8344°. The Bank Site is located within the Chester-Sassafras watershed, 8-digit United States Geological Survey Hydrologic Unit Code (USGS HUC) 02060002, within the Coastal Plain physiographic province of Maryland. Maps of the Bank Site are shown in Appendix A of the Prospectus, linked below.

OVERALL PROJECT PURPOSE:

The Bank Sponsor proposes to establish, design, construct, operate, and maintain an approximately 67.5-acre private commercial umbrella compensatory wetland mitigation bank to be known as the Carpenter Farms North Bank Site. The proposed Bank Site would provide off-site compensatory mitigation for unavoidable impacts to nontidal wetlands authorized by a Department of the Army (DA) permit within the proposed geographic service area described below. The proposed CFUMBI will establish the framework for the development, implementation, and protection of the initial Carpenter Farms North Bank Site and future individual umbrella mitigation Bank Sites to be approved under this CFUMBI. This is the initial Bank Site proposed under this CFUMBI.

The 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 UMBI. A draft UMBI may be prepared by the Bank 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 the Department of the Army permits. An approved UMBI, including a mitigation Bank Site addendum, 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 the Department of the Army and the Maryland Department of the Environment permits.

Future Corps and Maryland Department of the Environment (MDE) approval, in coordination with the Maryland Interagency Review Team (IRT), of additional Bank Sites under this CFUMBI through the Instrument modification procedures will constitute the regulatory approval required for those approved Bank Sites to be used to provide compensatory mitigation for Department of the Army and/or MDE permits. All future approved Bank Sites must comply with the terms and conditions of this Instrument, as well as any modifications made to this initial Instrument for specific Bank Site operations and requirements and/or updated IRT procedures.

Pursuant to 33 CFR 332.8(d)(4), the Corps has posted a full copy of the subject prospectus for the CFUMBI and Bank site online so that it is available for review by the public. The prospectus may be downloaded from the Regulatory In-Lieu Fee Bank Information Tracking System (RIBITS) at this web address:

https://ribits.ops.usace.army.mil/ords/f?p=107:278:11614218492221:::RP,278:P278_BANK_ID:6614

PROJECT DESCRIPTION:

The proposed establishment of the approximately 67.5-acre Carpenter Farms North Bank Site involves the re-establishment, enhancement, and preservation of aquatic resources and adjacent upland areas. The Bank Sponsor proposes that the ecological lift with establishment of this mitigation bank would include restoration of natural wetland hydroperiods and flow paths, increased infiltration and groundwater recharge, increased topographic complexity and physical habitat. The project proposes to responsibly address anthropogenic impacts from land alteration and drainage on the property by re-establishing forested wetlands and native plant communities in areas currently cultivated by agricultural crops, reducing habitat fragmentation, and improving habitat for native terrestrial and aquatic species. The ecological lift and increased aquatic function of the restored and enhanced wetlands would generate wetland credits that are to provide off-site compensatory mitigation for activities authorized under a DA or MDE permit. Specifically, the proposed Carpenter Farms North Bank Site includes:

• Re-establishment of approximately 25.6 acres of forested nontidal wetlands
• Enhancement of approximately 12.7 acres of forested nontidal wetlands
• Enhancement of approximately 5.1 acres of forested wetland buffer
• Preservation of approximately 4 acres of forested wetland 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 Sponsor may transition management to a long-term steward. Site ownership would remain with the current site owner.

A summary of the proposed mitigation resource type and crediting is provided in the Prospectus.

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 DA permits. The proposed primary service area for the Carpenter Farms North Bank Site is the Chester-Sassafras watershed (8-digit USGS HUC 02060002).

The proposed secondary service area would include the Choptank watershed (8-digit USGS HUC 02060005) within the Coastal Plain physiographic region of Maryland. 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 an applicant demonstrates that the mitigation credits would replace the lost aquatic functions and services at the impact sites. Certain types of impacts, including impacts to coastal and tidal aquatic resources, would be excluded from mitigation at the Carpenter Farms North Bank Site.

MITIGATION BANK APPROVAL AND PERMITTING PROCESS

An approved compensatory mitigation 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 would be granted authorization to use an approved Bank Site to compensate for unavoidable impacts associated with a proposed permit. Authorization by MDE may also be required to use this Bank to offset specific impacts regulated by the State of Maryland.

Issuance of a public notice regarding proposed compensatory mitigation Bank Sites is required pursuant to 33 CFR § 332.8(d)(4) and 40 CFR § 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 Bank Sponsor would submit an application for a Corps permit should the Bank mitigation activities involve a discharge of dredge or fill material into waters of the United States or work within navigable waters of the United States and receive appropriate authorizations 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 on a preliminary review of the Prospectus, the proposed work to develop this compensatory mitigation Bank Site may result in temporary and/or permanent impacts to waters of the United States. No DA 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 #27 (Aquatic Habitat Restoration, Enhancement, and Establishment Activities). Nationwide Permit #27 has undergone a full public interest review as required by Corps regulations (33 CFR 320.4(a)), and National Environmental Policy Act documentation has been prepared that addresses environmental considerations. Authorization for the proposed impacts will also be required by MDE.

Please refer below for a summary of approximate aquatic resource impacts to construct the compensatory mitigation bank.

APPROXIMATE EFFECTS ON AQUATIC RESOURCES:

In addition, the proposed work would impact approximately 4.7 acres of State-regulated nontidal wetland buffer.

LEAD FEDERAL AGENCY:

The Corps, as the lead federal agency, is responsible for all coordination pursuant to applicable federal authorities.

The IRT is responsible for review, approval, and oversight of the proposed UMBI and Bank Site. The IRT includes representatives from the Corps, the United States Environmental Protection Agency, United States Fish and Wildlife Service, National Marine Fisheries Service, Maryland Department of Natural Resources, and MDE. The Baltimore District of the Corps chairs the IRT and MDE co-chairs the IRT.

ENDANGERED SPECIES:

A preliminary review of this prospectus indicates that the proposed work will have no effect on 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 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 is not within 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 registered properties listed as eligible for inclusion, therein, are located at the site of the proposed work. The Corps has made the preliminary determination that the proposed project would have no effect on 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 the Corps. 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/Missions/Regulatory/Section-408-Requests/.

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 (see Corps address below) within the designated comment period of the notice and must state the specific reasons for requesting the public hearing.

SUBMISSION OF COMMENTS:

The Corps 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 CFUMBI and Carpenter Farms North Bank Site, 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 United States, and to identify project aspects that should be addressed during the development of a draft UMBI. Any comments received will be considered by the Corps to determine whether the proposal has the potential to provide mitigation opportunities for project proponents (permittees) authorized to impact waters of the United States under Section 404 of the Clean Water Act, or 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 Corps, Baltimore District within the comment period specified above through the postal mail at the address below or electronic submission to the project manager’s email address below. All comments should reference the Application Number NAB-2022-61427 M49.

Mr. Matthew Hynson
matthew.hynson@usace.army.mil
United States Army Corps of Engineers, Baltimore District
Regulatory Branch
2 Hopkins Plaza
Baltimore, Maryland 21201-2930

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 process 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. Matthew Hynson, Baltimore District, Corps, at matthew.hynson@usace.army.mil. This public notice is issued by the Chief, Regulatory Branch.