SUBJECT: The U.S. Army Corps of Engineers, Albuquerque District (Corps), is evaluating a prospectus for the establishment of the Judge Orr Mitigation Bank (JOMB), which would result in the establishment, enhancement, and preservation of approximately 25 acres of waters of the United States (WOTUS), including wetlands, in the Upper Arkansas River watershed. If authorized, this mitigation bank would receive money from individuals or entities receiving authorization under Section 404 of the Clean Water Act of 1972, when appropriate, to provide compensatory mitigation credit as part of Section 404 permits or enforcement actions within the proposed service area. This notice is to inform interested parties of the proposed activity and to solicit comments.
APPLICANT (SPONSOR): Pete Lien and Sons, Inc., c/o Ms. Danielle Wiebers, 3370 Drennan Industrial Loop North Colorado Springs, CO 80910, DWiebers@petelien.com.
AUTHORITY: This prospectus is being evaluated under 33 CFR 332.8.
LOCATION: The 48.4-acre project site is located within the Upper Arkansas Basin (110200) in Section 34, Township 12 South, Range 64 West, Sixth Principal Meridian, centered near Latitude 38.9573°, Longitude -104.5452°, northeast of the city of Falcon in El Paso County, Colorado. The abutting property (north and east boundaries) is an undeveloped lot, currently being used for livestock grazing. The southern boundary of the bank property runs parallel to Judge Orr Road, and the western boundary runs parallel to Stapleton Road.
PROJECT DESCRIPTION: The Sponsor proposes to establish an approximately 48.4-acre mitigation bank on private lands. The JOMB would consist of existing and newly constructed wetlands and open water features and would generate credits through wetland establishment, enhancement and preservation and upland buffer enhancement. Credits would be used to offset authorized impacts to federally regulated wetlands in the Service Area described below and detailed in the Prospectus. Approximately 19 acres of WOTUS (0.4 acre of open water ponds, 18.4 acres of wetland, and 0.3 acre of perennial stream bed) currently exist on the site within the portion designated for the mitigation bank (see Figure 7 of the Prospectus). The Sponsor has estimated that up to 6.4 acres of new wetlands and associated habitat would be created, 18 acres of wetlands and 0.7 acre of open water would be enhanced, and 0.1 acre of wetlands would be preserved with 23 acres of upland buffer enhancement (Figure 9 of the Prospectus).
The entirety of the 48.4-acre mitigation bank will be protected in perpetuity with an open space conservation easement. The Sponsor has proposed to maintain and monitor the site annually for a minimum of 5 years following construction or until the District Engineer determines that the success criteria, which will be defined in the Mitigation Banking Instrument (MBI), have been achieved.
The bank would operate on the sale of credits with the release of credits based upon milestones. The Interagency Review Team (IRT) is currently reviewing the Prospectus, and the proposed project is subject to modification based on the IRT’s recommendations.
The Prospectus provides additional project details and is available online at the Corps’ Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS) website: https://ribits.ops.usace.army.mil.
SERVICE AREA: The Geographic Service Area for the JOMB was selected based on hydrologic, climactic, and biological conditions and would cover the Upper Arkansas River Basin (6-digit Hydrologic Unit Code 110200) within the Southwest Tablelands ecoregion within the State of Colorado.
OTHER GOVERNMENTAL AUTHORIZATIONS: The JOMB project may require a Department of the Army permit under Section 404 of the Clean Water Act if it results in the placement of fill or discharge within WOTUS. Activities in WOTUS associated with the establishment of mitigation banks typically are authorized by a nationwide permit. The Colorado Department of Public Health and Environment has issued a general water quality certification for general permits, which includes nationwide permits, within the State of Colorado. Therefore, the Corps anticipates an individual water quality certification would not be required for this project. In addition, the State of Colorado requires that the property owner has a water right associated with any water use, including depletions.
HISTORIC PROPERTIES: Based on information provided by the applicant, a Class I File Search indicates that there are three potential historic resources within the project area, and several in the greater file search area. The Corps will initiate consultation with the State Historic Preservation Office, pursuant to Section 106 of the National Historic Preservation Act, as appropriate.
ENDANGERED SPECIES: The Corps will initiate consultation with the U.S. Fish and Wildlife Service, pursuant to Section 7 of the Endangered Species Act, as appropriate.
ESSENTIAL FISH HABITAT: Based on information provided by the applicant and our preliminary review, the proposed project will not adversely affect Essential Fish Habitat (EFH) as defined in the Magnuson-Stevens Fishery Conservation and Management Act.
Authority: The Mitigation Rule established a process and defined requirements for the establishment and management of mitigation banks, in-lieu fee agreements, and permittee‑responsible mitigation. In addition, the Mitigation Rule established a public review process and timeline for the development of mitigation banks and in-lieu fee agreements.
Background: A mitigation bank contains wetlands, streams and/or other aquatic resources that have been restored, established, enhanced, or preserved. The bank area is then utilized to compensate for future impacts to aquatic resources resulting from permitted activities. The value of a bank is determined by quantifying the aquatic resource functions restored, established, enhanced, and/or preserved in terms of “credits.” Whenever permitted activities require compensatory mitigation and are located within the service area of a mitigation bank that has the appropriate type and amount of credits available, the Corps typically prefers to satisfy the compensatory mitigation requirements through the use of bank credits, as prescribed at 33 CFR 332.3(b).
Mitigation Approval and Permitting Processes: As part of the process to establish a bank, the Corps will organize an IRT to evaluate and determine the types and number of potential credits that may be generated. Upon bank approval and the Corps verifies that the Sponsor has met administrative milestones and/or performance-based criteria, the Corps may release potential credits in accordance with the MBI credit release schedule. In addition to the Corps’ approval of the final MBI and issuance of any necessary permits to construct the bank, the Sponsor would need to obtain the appropriate federal, state, and local permits required to implement the bank restoration activities.
To ensure a high level of confidence that the bank would be successfully completed in accordance with applicable mitigation performance standards, the Corps would require the Sponsor to secure sufficient and appropriate financial assurances.
To ensure permanent protection of the bank site, the Corps would require the Sponsor to secure legal site protection (e.g., conservation easement). The Corps would also require the Sponsor to identify a third-party, non-profit conservation entity that would fund long-term management of the bank property.
All credit sales would be tracked and reported by the Sponsor to the Corps.
CONSIDERATION OF COMMENTS: The Corps is soliciting comments from the public; federal, state, and local agencies and officials; Indian tribes; and other interested parties in order to help inform the Corps and the IRT as to the overall merits of the proposed bank, the scope of the proposed mitigation bank, the delineation of the service area, the ecological suitability of the individual sites to achieve wetlands restoration, and to identify project aspects that should be addressed during the development of a draft MBI. 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 WOTUS under Section 404 of the Clean Water Act or as a means of resolving Section 404 enforcement actions.
CLOSE OF COMMENT PERIOD: All comments pertaining to this public notice must reach this office on or before October 28, 2022, which is the close of the comment period. Extensions of the comment period may be granted for valid reasons provided a written request is received by the limiting date. If no comments are received by that date, it will be considered that there are no objections. Anyone may request, in writing, that a public hearing be held to consider this application. Requests shall specifically state, with particularity, the reason(s) for holding a public hearing. If the Corps determines that the information received in response to this notice is inadequate for thorough evaluation, a public hearing may be warranted. If a public hearing is warranted, interested parties will be notified of the time, date, and location. Comments and requests for additional information should be submitted to:
Kerrianne Zdimal, Regulatory Specialist
U.S. Army Corps of Engineers, Albuquerque District
1970 East 3rd Avenue, Suite 109
Durango, CO 81301
Please note that names and addresses of those who submit comments in response to this public notice may be made publicly available through the Freedom of Information Act.
CORPS OF ENGINEERS