SPK-2014-01100, Public Notice of In-Lieu Fee Program Establishment within Colorado Western Slope Boundaries of Sacramento District

SUBJECT:  Approval announcement of the Western Slope In-Lieu Fee Program Enabling Instrument in Colorado. 

AUTHORITY:  Section 404 of the Clean Water Act      

SPONSOR:  National Forest Foundation, Attn: Marcus Selig, 390 Union Blvd, Suite 400, Denver, Colorado 80228; email mselig@nationalforests.org; or phone (720) 437-0290

PROGRAM AREA:  The In-Lieu Fee Program Area is defined as the boundary of the U.S. Army Corps of Engineers Sacramento District within Colorado.  The Program Area is located west of the continental divide and contains 12 service areas that serve as a compensatory mitigation option to off-set impacts to streams and wetlands.  Figures 1 and 2 identify the service areas of all third-party mitigation options, including mitigation banks and in-lieu fee programs in western Colorado.  

DESCRPTION:  The U.S. Army Corps of Engineers, Sacramento District, (Corps) in cooperation with an Interagency Review Team (IRT) has signed the National Forest Foundation’s (NFF) Sacramento District Colorado Western Slope In-Lieu Fee (ILF) Program Enabling Instrument effective October 13, 2020.  The IRT consists of the U.S. Environmental Protection Agency, Region VIII; the Colorado Parks and Wildlife; and the Corps.  This establishes an In-Lieu Fee Program as a compensatory mitigation option in western portions of Colorado within the Sacramento District.  The ILF Program will have the following Advance Credits outlined below upon Program Establishment:

ILF Projects would be developed in accordance with the ILF Program Instrument and the Prioritization Strategy outlined in the Compensation Planning Framework.  The ILF Program Instrument can be found on the Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS) at https://ribits.ops.usace.army.mil/ords/f?p=107:378:::NO::P378_PROGRAM_ID:2808.

In addition to the ILF Program, there are three mitigation banks with available credits within the Sacramento District’s area of responsibility in Colorado, including the Animas Wetlands, Finger Rock Preserve, and WetBank Gunnison. The credits available at each bank are identified in the table below:

BACKGROUND:  In accordance with 33 CFR 325, the US Army Corps of Engineers has the authority to issue or deny permits for activities pursuant to section 404 of the Clean Water Act.  For permits evaluated under section 404 of the Clean Water Act, except as provided under section 404(b)(2), no discharge of dredged or fill material can be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences, in accordance with 40 CFR 230.  Compensatory mitigation for unavoidable impacts may be required to ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines.  The requirements for compensatory mitigation are outlined in 33 CFR 332.  In general, the required compensatory mitigation should be located within the same watershed as the impact site, and should be located where it is most likely to successfully replace lost functions and services, taking into account such watershed scale features as aquatic habitat diversity, habitat connectivity, relationships to hydrologic sources (including the availability of water rights), trends in land use, ecological benefits, and compatibility with adjacent land uses.  

When permitted impacts are located within the service area of an approved mitigation bank, and the bank has the appropriate number and resource type of credits available, the permittee's compensatory mitigation requirements may be met by securing credits from the bank sponsor.  Since an approved instrument (including an approved mitigation plan and appropriate real estate and financial assurances) for a mitigation bank is required to be in place before its credits can begin to be used to compensate for authorized impacts, use of a mitigation bank can help reduce risk and uncertainty, as well as temporal loss of resource functions and services.  Mitigation bank credits are not released for debiting until specific milestones associated with the mitigation bank site's protection and development are achieved, thus use of mitigation bank credits can also help reduce risk that mitigation will not be fully successful.  Mitigation banks typically involve larger more ecologically valuable parcels and more rigorous scientific and technical analysis, planning, and implementation than permittee-responsible mitigation.  Also, development of a mitigation bank requires site identification in advance, project-specific planning, and significant investment of financial resources that is often not practicable for many in-lieu fee programs.  For these reasons, the use of mitigation bank credits generally has preference over the use of other mitigation options, such as purchasing Advance or Released Credits at an ILF program or completing permittee-responsible mitigation. 

Where permitted impacts are located within the service area of an approved ILF program, and the ILF program has the appropriate number and resource type of credits available, the permittee's compensatory mitigation requirements may be met by securing those credits from the ILF program.  Where permitted impacts are not located in the service area of an approved mitigation bank, or the approved mitigation bank does not have the appropriate number and resource type of credits available to offset those impacts, ILF program credits, if available, are generally preferable to permittee-responsible mitigation.  In-lieu fee projects typically involve larger, more ecologically valuable parcels, and more rigorous scientific and technical analysis, planning and implementation than permittee-responsible mitigation.  They also devote significant resources to identifying and addressing high-priority resource needs on a watershed scale, as reflected in their compensation planning framework.

Enclosures (2)
Figure 1 – Colorado Western Slope ILF Service Area Map
Figure 2 - Colorado West Mitigation Banks