U.S. Army Corps In Reply to Application Number
of Engineers CENAB-OP-RM (MARYLAND DEPARTMENT OF THE
ENVIRONMENT IN-LIEU FEE PROGRAM PROSPECTUS)
Baltimore District 2014-02253
SPN: 15-52 Comment Period: September 10, 2015 to October 09, 2015
Subject: Special Public Notice to solicit comments from the public concerning the proposed development of an in-lieu fee (ILF) compensatory mitigation program by the Maryland Department of Environment (MDE).
The MDE proposes to establish the Maryland (MD) In-Lieu Fee (ILF) Program under the provisions of 33 CFR Part 332.8. If approved, the proposed MD ILF will replace the MD ILF program and operate in compliance with the 2008 Mitigation Rule 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 and/or Section 10 of the Rivers and Harbors Act of 1899. This MD ILF program would potentially provide permit applicants a joint State/Federal option for meeting aquatic resource mitigation needs in compliance with both State and Federal regulations. The proposed MD ILF program would be applicable for use in providing compensatory mitigation of aquatic resources impacts throughout the State of Maryland, within the regulatory boundaries of the Baltimore District of the U.S. Army Corps of Engineers. This notice is to inform interested parties of the proposal and to solicit comments.
SPONSOR: Mr. Elder A. Ghigiarelli, Jr.
Maryland Department of the Environment
Wetlands and Waterways Program
Water Management Administration
1800 Washington Boulevard, Suite 430
Baltimore, Maryland 21230
A copy of the proposed MD ILF Program prospectus is attached electronically to this Special Public Notice. This prospectus provides a summary of the information regarding the proposed MD 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 or is available by calling Ms. Maria N. Teresi at (410) 962-4501.
The proposed MD ILF program seeks to:
- Provide aquatic resource compensatory mitigation that offsets compensatory mitigation requirements for MDE 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 State’s watershed planning and prioritization processes to the maximum extent practicable.
The MDE previously established the MD ILF program, which became effective in 1972 and 1991, to provide compensatory mitigation for tidal and nontidal wetland impacts, respectively, in the State of Maryland. In 2008, the Corps published new regulations at 33 CFR 332.8 (2008 Mitigation Rule), establishing procedures for the implementation of ILF agreements. In accordance with 33 CFR Part 332.8 (v)(2), the MD ILF program was grandfathered until June 9, 2013, after which, the MD ILF program expired and was no longer an acceptable form of compensatory mitigation for DA authorizations. On May 10, 2013, Special Public Notice SPN-13-28 was issued jointly by the Baltimore District of the U.S. Army Corps of Engineers (Corps) informing the public of the MD ILF program expiration and requirement for project-specific Corps review of Maryland State Programmatic General Permit-4 (MDSPGP-4) permit applications when use of the MD ILF program was proposed to satisfy compensatory wetland mitigation requirements. If approved, the proposed MD ILF program will replace the MDE ILF program for use to satisfy compensatory mitigation requirements for impacts associated with Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act authorizations.
At this time, no decision has been made as to whether or not the proposed MD 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 MD ILF Program prospectus in accordance with all requirements of the Mitigation Rule in 33 CFR Parts 325 and 332; in consultation with the Maryland IRT; and in consideration of comments received from the general public in response to this Special Public Notice, to determine the potential of the proposed MD ILF program to provide compensatory mitigation for activities authorized by DA permits within the State of Maryland. 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 general permit will be granted authorization to use the ILF program to compensate for unavoidable aquatic resource impacts associated with a proposed permit, even though compensatory mitigation may be available within the defined service area.
Oversight of the MD ILF program will be undertaken by the Maryland 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 MDE serves as co-chair 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.
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). A preliminary review of the proposed MD ILF program indicates that the program will not adversely affect EFH.
COASTAL ZONE MANAGEMENT PROGRAMS: Where applicable, the applicant 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 (CZM) Program.
A preliminary review of this prospectus indicates that the proposed program will not affect Federal 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 prospectus continues, additional information may become available which could modify this preliminary determination.
A preliminary review of this prospectus indicates that the proposed program will not affect historic properties listed in latest published version of the National Register of Historic Places, including properties listed as eligible for inclusion therein. As the evaluation of this prospectus continues, additional information may become available which could modify this preliminary determination.
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 potential of the proposed MD 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. 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, referencing Public Notice 15-XX, CENAB-OP-RM-2014-02253, concerning the work described above related to the factors listed above or other pertinent factors must be received by the District Engineer, U.S. Army Corps of Engineers, Baltimore District, P.O. Box 1715, Baltimore, Maryland 21203-1715, within the comment period specified above to receive consideration.
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.
If you have any questions concerning this matter or wish to obtain a hard copy of the MD ILF Program prospectus, please contact Ms. Maria N. Teresi, Regulatory Project Manager, Maryland Section, Baltimore District, U.S. Army Corps of Engineers at (410) 962-4501 or via email at firstname.lastname@example.org
FOR THE DISTRICT ENGINEER:
WILLIAM P. SEIB
Chief, Regulatory Branch