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This notice announces a proposal to develop a mitigation banking Instrument, including a
mitigation bank site, submitted in accordance with the “Compensatory Mitigation for Losses of
Aquatic Resources” (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), as published in the federal register on April 10,
SPONSOR: EIP Credit Co, LLC.
5550 Newbury Street, Suite B
Baltimore, MD 21209
AGENT: Beaver Creek Hydrology, LLC
2156 Sandersville Rd.
Lexington, KY 40511
LOCATION: On Rush Branch and unnamed tributaries of Rush Branch of the Rolling Fork River Watershed (8-Digit HUC: 05140103). The 760-acre property is located north of KY 49 and south of KY 243, in Casey County, KY.
PURPOSE: To develop a mitigation banking instrument that would operate within the Commonwealth of Kentucky, providing stream mitigation credits within Service Area 5 of the Resource-based, Predefined Service Areas for Third Party Mitigation within Kentucky.
DESCRIPTION OF WORK: The sponsor is proposing to establish a stream mitigation bank, Rush Branch Mitigation Bank, on a 760-acre site located within the Rush Branch watershed. The sponsor proposes approximately 89,490 linear feet of re-establishment, rehabilitation, enhancement, preservation, and sustainability of perennial, intermittent and ephemeral streams, and enhancement of stream riparian corridors within headwater drainages of the Rush Branch watershed. Rush Branch flows into Big South Fork, which flows into the Rolling Fork River, which flows into the Salt River, a traditionally navigable water (TNW).
The sponsor proposes that the project would generate a net gain of approximately 64,360 stream Adjusted Mitigation Units (AMUs) within Kentucky Predefined Service Area 5. The project area, including the streams plus 50-foot or greater riparian area from the top of each stream bank, would be permanently protected through implementation of conservation easement. The privately owned property would be leased to the sponsor in the form of a Mitigation Banking Lease Agreement (MBLA). The sponsor proposes a currently unidentified non-profit organization to serve as the third-party long-term manager throughout the long-term management phase of the project.
The Rush Branch Mitigation Banking Instrument, in concert with the mitigation project
site, would be developed to generate stream mitigation credits that could be made available for
sale to compensate for impacts associated with the discharge of dredged or fill material into
“Waters of the United States (U.S.)” resulting from projects within the approved service area.
The Sponsor has submitted a prospectus consistent with the Mitigation Rule. The prospectus
may be reviewed in full by contacting the Corps; additionally, a summary of the mitigation site is detailed below. Any discharge of fill into “waters of the U.S.” associated with the mitigation projects would be reviewed under separate procedures.
Mitigation Plan: This public notice announces the development of a prospectus for the Rush Branch Mitigation Bank, including one mitigation site. Consistent with the Mitigation
Rule, a mitigation plan for this proposal will not be developed until the mitigation bank instrument is drafted, which is at a later phase of the mitigation bank approval process.
Therefore, no mitigation plans are available for review at this time.
REVIEW PROCEDURES: A DA Permit cannot be issued if any legally required Federal, State, or local authorization or certification is denied. A DA permit, if otherwise warranted, will not be issued until a State of Kentucky Water Quality Certification or waiver is on file at this office. In order to comply with Section 401 of the Clean Water Act, the applicant must apply for State certification from the Kentucky Energy and Environment Cabinet Division of Water (KDOW).
Copies of this notice are sent to the appropriate Federal and State Fish and Wildlife Agencies.
Their views and comments are solicited in accordance with the Fish and Wildlife Coordination
Act of 1956. Based on information by the applicant, and a review of the Information for Planning
and Consultation (IPAC) website, https://ecos.fws.gov/ipac/, the following federally-listed species are known or believed to occur in the area to be affected (directly or indirectly) by the proposed action.
Common Name Scientific Name
Indiana Bat Myotis sodalis
Northern Long-eared Bat Myotis septentrionalis
Gray Bat Myotis grisescens
Clubshell Pleurobema clava
Fanshell Cyprogenia stegaria
Orangefoot Pimpleback (pearlymussel) Plethobasus cooperianus
Pink Mucket (pearlymussel) Lampsilis abrupta
Rabbitsfoot Quadrula cylindrica cylindrica
Ring Pink (mussel) Obovaria retusa
The Endangered Species Act (ESA, 87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.) requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) pursuant to Section 7(a) 2 of the ESA on all actions that may affect a species listed (or proposed for listing) under the
ESA as threatened or endangered, or any designated critical habitat. A copy of this notice is being furnished to the USFWS for their review. Per this notification, we request comments from the USFWS concerning potential impact to threatened and/or endangered species. After receipt of comments, the USACE will evaluate the potential impacts to proposed and/or listed species and their designated critical habitat and initiate consultation with USFWS, if required.
The National Register of Historic Places is currently being examined to determine if there are any properties currently listed on the Register which would be directly affected by the proposed work. If we are made aware, as a result of comments received in response to this notice, or by other means, of specific archaeological, scientific, prehistorical, or historical sites or structures which might be affected by the proposed work, the District Engineer will immediately take the appropriate action necessary pursuant to the National Historic Preservation Act of 1966 - Public Law 89-665 as amended (including Public Law 96-515).
The decision whether to issue a permit will be based on an evaluation of the probable impact of
the proposed activity on the public interest. That decision will reflect the national concern for
both protection and utilization of important resources. The benefits which reasonably 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; among those are conservation, economics, aesthetic values, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and in general, the needs and welfare of the
public. In addition, the evaluation of the impact of the activity on the public interest will include
application of the guidelines (40 CFR Part 230) promulgated by the Administrator, United States
Environmental Protection Agency, under authority of Section 404(b) of the CWA.
PUBLIC REVIEW AND COMMENT: 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 impacts of this proposed activity. Any comments received will be considered by the Corps of Engineers 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, 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 are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.
Written statements received in this office on or before the closing date will become a part of the
official record and will be considered in the determination on this permit request. Any objections
which are received during this period will be forwarded to the sponsor for possible resolution
before the determination is made whether to issue or deny the requested DA Permit.
Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application. A request for a public hearing must state the specific interest which might be damaged by issuance of the DA Permit.
Information pertaining to this application is available for public examination during normal business hours upon prior request. Drawings are available on Louisville District's Internet site at http://www.lrl.usace.army.mil/Missions/Regulatory/Public-Notices/. All comments regarding this proposal should be addressed to Donald E. Lewis, CELRL-RDE at the address noted above and should refer to the Public Notice Number LRL-2023-00333.
If you desire to submit your comments by email, you must comply with the following:
a) In the subject line of your email, type in ONLY the Public Notice ID No. LRL-2023-00333.
b) Provide your physical mailing address and telephone number.
c) Send your email to: email@example.com
d) If you are sending attachments greater than 10 Mb in size with your email, you must send a hard copy (CD or paper) to the Corps’ physical address as well.