Public Notices

Regulatory Special Public Notice 23-51; LRN-2016-00511

USACE - Nashville District, Regulatory Division
Published Jan. 9, 2024
Expiration date: 2/8/2024

SUBJECT: This notice announces that the Cumberland River Compact In-Lieu-Fee mitigation program has submitted a reissuance request for their program operating instrument

APPLICANT: The Cumberland River Compact, 35 Peabody Street, Suite 305, Nashville, TN 37210

PURPOSE: The Cumberland River Compact (CRC) In-Lieu-Fee (ILF) mitigation program has submitted a request for a reauthorization of their program operating instrument as required for activities authorized under Sections 401 and/or 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.

LOCATION: The sponsor’s proposed ILF instrument would service the Cumberland River basin within the state of Tennessee. The proposed Cumberland River Compact Stream Restoration ILF Program’s prospectus identifies two services areas in which the proposed ILF would be operated and administered.

DEFINITIONS: The following definitions apply to the establishment and operation of ILF programs as defined bv the 2008 rule, “Compensatory Mitigation for Losses of Aquatic Resources” (2008 Mitigation Rule)(CFR Vol. 73 No. 70, p 19670-19705 (33 U.S.C. 401 et seq.; 33 U.S.C. 1344; and Pub. L. 108-136):

Advance credits means any credits of an approved in-lieu fee program that are available for sale prior to being fulfilled in accordance with an approved mitigation project plan. Advance credit
sales require an approved in-lieu fee program instrument that meets all applicable requirements including a specific allocation of advance credits, by service area where applicable. The instrument must also contain a schedule for fulfillment of advance credit sales.

Compensatory mitigation means the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved.

Credit means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the accrual or attainment of aquatic functions at a compensatory mitigation site. The measure of aquatic functions is based on the resources restored, established, enhanced, or preserved.

Debit means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the loss of aquatic functions at an impact or project site. The measure of aquatic functions is based on the resources impacted by the authorized activity.

In-lieu fee program instrument means the legal document for the establishment, operation, and use of an in-lieu fee program.

Instrument means mitigation banking instrument or in-lieu fee program instrument.

Release of credits means a determination by the district engineer, in consultation with the IRT, that credits associated with an approved mitigation plan are available for sale or transfer, or in the case of an in-lieu fee program, for fulfillment of advance credit sales. A proportion of projected credits for a specific mitigation bank or in-lieu fee project may be released upon approval of the mitigation plan, with additional credits released as milestones specified in the credit release schedule are achieved.

Service area means the geographic area within which impacts can be mitigated at a specific mitigation bank or an in-lieu fee program, as designated in its instrument.

BACKGROUND: The Cumberland River Compact was formed as a (501)(c)(3) nonprofit program in 1997, with a primary mission to improve water quality throughout the Cumberland River basin in Tennessee. In accordance with the “Compensatory Mitigation for Losses of Aquatic Resources” Final Rule (“Mitigation Rule”), 73 Fed. Reg. 19,594 (April 10, 2008) (codified at 33 C.F.R Part 325 and 332), the final program instrument (Instrument) was approved by the Tennessee Interagency Review Team (TN IRT) in February 2018 to allow the CRC to operate an in-lieu fee program in the Cumberland River system within the State of Tennessee. Minor modifications to the program operating instrument were completed in July 2019 and September 2021. As part of the conditions for approving the instrument by the IRT, the ILF program is required to request reissuance of its operating instrument, which expired in March of this year. This public notice is in response to the request to reissue the ILF program instrument.

Additionally, as part of the CRC operating instrument, a programmatic audit is required to be conducted at the expiration of the program instrument, every five years. The audit focuses on compliance with provisions in the approved instruments, use of funds, as well as applicable state and federal regulations. The CRC provided a programmatic audit in May of 2023. The audit is currently in review by the TN IRT.

GENERAL INFORMATION: In-Lieu Fee (ILF) mitigation programs support the implementation of compensatory mitigation projects consistent with the 2008 Mitigation Rule to provide compensatory mitigation for impacts authorized by Department of the Army (DA) permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act through the sale of advanced credits. In general, advanced credits may subsequently be withdrawn to offset debits incurred at a permitted project site. In the event that the ILF has standing (available) released credits in a given service areas, such credits can be used to offset debits. In this way, a permit requirement to provide compensatory mitigation can be transferred to the ILF program. The ILF program is ultimately responsible for the successful development of mitigation projects, including monitoring and reporting requirements, within three growing seasons of the sale of the first advanced credit sale. Unless an ILF program has a surplus of credits available in a service area (i.e., released credits) as a result of credit releases from prior mitigation projects, the compensatory mitigation will take place after the permitted impacts have occurred. To help ensure that the collected funds are used in a timely manner to initiate compensatory mitigation projects, a time limit of three growing seasons for fulfillment of advance credits (see § 332.8(n)(4) [§ 230.98(n)(4)]) and requiring in-lieu fee programs to establish accounts to retain the collected funds. Those funds can only be used for the selection, design, acquisition, implementation, and management of in-lieu fee projects, with a small percentage allowed for administrative costs. 

A group of federal and state regulatory and resource agency representatives known as the Interagency Review Team (IRT) would oversee the operation of ILF programs. The IRT is chaired by the USACE. The primary role of the IRT is to facilitate the establishment of mitigation programs through third party banks via an MBI, or in the case of ILF programs, an approved modification of the operating instrument to include new restoration sites. The IRT will review the prospectus, instrument, and other appropriate documents and provide comments to the USACE.

The approval of the ILF instrument reauthorization is the decision of the USACE pursuant to Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of the Clean Water Act and/or the Tennessee Department of Environmental Conservation (TDEC) pursuant to Section 401 of the CWA and/or applicable state of Tennessee statute(s) and regulation(s). Agency review will include, but will not be limited to, the review of credit delivery within three growing seasons (e.g. released credits), review of programmatic audits, and overall program compliance with the authorized operating ILF instrument. The USACE and TDEC provide no guarantee that any particular individual or general permit would be authorized in order to use ILF advance or released credits for compensation.

SOLICITATION OF COMMENTS: The USACE 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 this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historical properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. An electronic copy of the submitted instrument is provided with the email notification for this public notice and will also be made available on the RIBITS website in the 'Cyber Repository' under the Cumberland River Compact In-Lieu Fee Instrument folder located at: https://ribits.ops.usace.army.mil/ords/f?p=107:100::::RP:P100_PROGRAM_ID:2830

PUBLIC INTEREST REVIEW: The purpose of this PN is to advise all interested parties of the proposed new ILF operating instrument and to solicit comments and information necessary to evaluate the probable impact on the public interest. The decision whether to authorize the ILF program will be based on an evaluation of the probable impact, including cumulative impacts, of the ILF program on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits that reasonably may be expected to accrue from the ILF program must be balanced against its reasonably foreseeable detriments. All factors that may be relevant to the ILF program will be considered, including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people. After the end of the comment period, the district engineer will review all comments received and make an initial determination as to the potential of the proposed project to provide compensatory mitigation for activities authorized by DA permits. That determination will reflect the national concern for both protection and utilization of important resources.

PUBLIC HEARING REQUESTS: Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application. Requests for hearings shall state, with particularity, the reasons for holding a public hearing.

COMMENT PERIOD: Written statements received in this office within 30 days from the date of this notice will become a part of the record and will be considered in the determination. Any response to this notice should be directed to the Nashville District Corps of Engineers, Regulatory Division, Attention: Mr. Ryan Evans, Technical Services Branch, at the above address, by phone at 615-369-7516, or by email: ryan.evans@usace.army.mil.

                                                                                                                                /s/
                                                                                                               William E. Worrall, P.E.
                                                                                                     Chief, Technical Services Branch
                                                                                                                Regulatory Division