Sponsor: Henry’s Fork Foundation
Attention: Matt Hively
801 Main Street
Ashton, Idaho 83420
Email: matt@henrysfork.org
Telephone: (208) 652-3567
Location: As proposed, the Program would provide third party compensatory mitigation options for unavoidable impacts to aquatic resources in the following Hydrologic Unit Code (HUC) subbasins within the State of Idaho: Upper Henrys (HUC 17040202), Lower Henrys (HUC 17040203), Teton (HUC 17040204), Idaho Falls (HUC 17040201), and Palisades (HUC 17040104). A map of the proposed service area is enclosed and labeled with the Department of Army reference number (DA No.: NWW-2024-00077).
Purpose: Under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act, applicants applying for the Department of Army permits to discharge dredge or fill material into waters of the United States, including wetlands, are sometimes required to provide compensatory mitigation for permitted unavoidable aquatic resource losses by creating, restoring, enhancing, and preserving wetlands or streams. Authorized ILFPs provide the USACE and the regulated public with additional options for compensatory mitigation of aquatic resource losses. As per the Final Mitigation Rule (33 CFR Part 325 and 332), there are three mechanisms for providing compensatory mitigation (listed in order of preference as established by regulations): mitigation banks, in-lieu fee programs, and permittee-responsible mitigation. An ILFP sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the ILFP sponsor.
Prospectus: This public notice includes only summarized information and figures from the full prospectus. A prospectus is the preliminary proposal prepared by an ILFP sponsor and provides an overview of a proposed in-lieu fee program. USACE invites interested parties to review the full prospectus. A copy of the full prospectus for the proposed Program is available for review on the USACE Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) website (https://ribits.ops.usace.army.mil). At this website, in the left column under “FILTER” select the “USACE District” radio button and from the dropdown list, select “Walla Walla”. Then, in the same column under “MENU” select “ILF Programs.” On the next page, find and select “East Idaho In-lieu Fee Program (Pending)”. Once the page loads, select “[Cyber Repository]” along the top menu. Here you will be able to download the full prospectus. Alternatively, a copy of the full prospectus may be requested from USACE.
Proposed Work: The purpose of the Program is to provide a watershed-scale mitigation option that advances the pace at which regional conservation goals and objectives are achieved. Implicit to the Program’s technical and financial feasibility is a watershed-scale approach considering landscape-level opportunities funded by the sale of mitigation credits. This will allow impacted watershed functions and services to be offset through ecologically significant projects.
The Program’s goal is to provide effective compensatory mitigation for unavoidable impacts to waters of the United States (WOTUS) resulting from the activities authorized under Section 404 of the Clean Water Act (CWA), Section 10 of the Rivers and Harbors Act, impacts to aquatic resources authorized by other federal or state agencies with regulatory authority (e.g., compensatory mitigation for wetlands under Executive Order 11990), or completed enforcement actions under the CWA. The Program’s intent is to uphold the goal of no net loss of wetlands through preservation, enhancement, establishment, and restoration of aquatic resource functions within a watershed context through the establishment and management of compensatory mitigation projects.
The Program objectives to support this goal include:
- Achieve ecological success on a watershed basis by providing wetland and stream functions and values that are appropriate to the service area.
- Use a watershed approach to identify the most appropriate off-site mitigation options available in order to obtain a greater ecological benefit than would otherwise be achieved through on-site mitigation options that are impracticable or of lower ecological value.
- Enhance the scope and quality of mitigation projects by developing and implementing strategic plans that align with federal, state, and other locally shared goals and objectives such as those outlined in Idaho’s State Wildlife Action Plan (SWAP) and Henry’s Fork Basin Plan.
Program Operation: Under the proposed ILFP, the Henry’s Fork Foundation would develop a site-specific Mitigation Plan for each proposed ILFP project site in accordance with the 2008 Compensatory Mitigation Rule (33 CFR 332.4(c)(2) through (c)(14)). Plans would be submitted to the Interagency Review Team for review and approval prior to development and/or implementation of the mitigation project. Specific projects would be treated as modifications to the Program Instrument and processed in accordance with the provision at 33 CFR 332.8(g). Each specific project would require a public notice and site-specific assessments of compliance with all applicable laws and regulations including the Magnuson-Stevens Fishery Conservation and Management Act, Section 7 of the Endangered Species Act, and Section 106 of the National Historic Preservation Act.
Mitigation requirements associated with the permitted impacts to aquatic resources could be met by a permittee paying fees into an established Program account. Fees would be based on the number of credits needed to compensate for permitted aquatic resource losses. Mitigation fees paid into the Program account may only be used for direct replacement and management of aquatic resources. This means selection, design, acquisition (e.g., appraisals, surveys, title insurance), implementation, management, and monitoring of the Program projects. Mitigation sites would be selected based on a pre-determined prioritization strategy as outlined in the prospectus.
Service Area: The proposed service area is depicted in the enclosed attachment (Page 1 of 1). The service area includes the following Hydrologic Unit Code (HUC) subbasins within the State of Idaho: Upper Henrys (HUC 17040202), Lower Henrys (HUC 17040203), Teton (HUC 17040204), Idaho Falls (HUC 17040201), and Palisades (HUC 17040104). The service area includes the urbanizing areas of Fremont County, a portion of Clark County, Madison County, a portion of Jefferson County, Teton County, and a portion of Bonneville County. The proposed service area includes the cities of St. Anthony, Rexburg, Rigby, Victor, and Idaho Falls.
Drawings: Drawings are attached and labeled with the USACE reference number NWW-2024-00077. Copies of this public notice, which have been mailed or otherwise physically distributed, feature drawings in black and white. The electronic version features those drawings in color, which we think more accurately illustrates the proposed ILFP. To access the electronic version of this public notice, go to the Walla Walla District Regulatory website at https://www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/Public-Notices/.
Endangered Species: Pursuant to Section 7(c) of the Endangered Species Act, the District Engineer’s final determination relative to site specific project impacts associated with individual site development plans would be subject to review by and coordination with the U.S. Fish & Wildlife Service (USFWS). Consultation with USFWS would be conducted for each individual site development plan prior to any USACE authorizations, or approvals. Each mitigation site proposed under the ILFP would be placed on public notice and consultation requirements of Section 7(c) of the Endangered Species Act would be met prior to any USACE authorizations, or approvals.
Essential Fish Habitat: The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act (Public Law 104-267), requires all Federal agencies to consult with the NOAA on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). In accordance with the Essential Fish Habitat (EFH) consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer’s final determination relative to site specific project impacts and the need for mitigation measures associated with individual site development plans would be subject to review by and consultation with the NOAA.
Historic Properties: In accordance with the National Historic Preservation Act (NHPA), the District Engineer’s final eligibility and effects determination for individual site development plans would be based upon coordination with the State Historic Preservation Office (SHPO) and/or Tribal Historic Preservation Office (THPO), as appropriate and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the USACE-identified permit area. Each mitigation site proposed under the ILF would be placed on public notice and consultation requirements of the NHPA would be met prior to any USACE authorizations, or approvals.
Water Quality Certification: Reviews of activities pursuant to Section 404 of the Clean Water Act will include application of the guidelines promulgated by the Administrator, U.S. Environmental Protection Agency, under authority of Section 404 (b) of the Clean Water Act and the applicant will obtain a water quality certificate or waiver from the appropriate state agency in accordance with Section 401 of the Clean Water Act prior to a permit decision, where applicable.
USACE Public Hearing Requests: Any person may request in writing within the comment period specified in this notice that a USACE public hearing be held to consider this proposed ILFP. Requests for a USACE public hearing shall state with particularity the reasons for holding a public hearing.
Evaluation: The USACE will evaluate the proposed ILFP in accordance with 33 CFR Part 332. The USACE is soliciting comments from the public; Federal, State, and local agencies and officials; Native American Tribes; and other interested parties in order to consider and evaluate the impacts of the proposed Program. Any comments received will be considered by USACE to determine whether to authorize the proposed Program. Comments are used to determine the need for a public hearing and to determine the overall public interest of the proposed Program.
Submitting Comments: Interested parties are invited to provide comments on the proposed Program. All comments must be received no later than the expiration date of this public notice to ensure consideration. All comments received will become part of the administrative record and are subject to public release under the Freedom of Information Act including any personally identifiable information such as names, phone numbers, and addresses. Additional information about the proposed Program may be obtained from the USACE contact listed below.
Comments may be submitted online, by conventional mail or by email. Comments may be submitted online at the Regulatory Request System website (https://rrs.usace.army.mil/rrs). At this website, select Public Notices and under Filter Notices select Walla Walla District. Comments submitted by conventional mail or email must include the USACE reference number as shown on page one and include the commenter’s name and address. To be accepted, email comments must originate from the author’s email account and must include on the subject line of the email message the USACE reference number. Comments may be submitted to the following mailing address or email address:
U.S. Army Corps of Engineers
Lia E. Landowski
Coeur d’Alene Regulatory Field Office
1910 Northwest Blvd., Suite 210
Coeur d’Alene, Idaho 83814
Email: lia.e.landowski@usace.army.mil
Telephone: (986) 810-0177
Enclosure:
East Idaho In-lieu Fee Program Service Area Map