The URL can be used to link to this page

Home My WebLink AboutDWR Response to DMS Jordan Project Review_June2022DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1B816751E68 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director TO: FROM \f Qlui'i Na j NORTH CAROLINA Environmental Quality June 7, 2022 Lindsay Crocker Eastern Regional Supervisor — Division of Mitigation Services Katie Merritt k 54t 6/7122 Nutrient Offset & Buffer Banking Coordinator DSO/ r W THROUGH: Paul Wojoski 6/10/2022 Supervisor - 401 & Buffer Permitting Branch SUBJECT: DWR Response to DMS request to review four (4) projects submitted as "Legacy Credits — Upper and Lower New Hope Cape Fear 02 Watershed" On April 18, 2022, DWR received a memo along with attachments from the Division of Mitigation Services (DMS) requesting DWR staff review the following projects for retroactive credits for buffer mitigation credits and/or nutrient offset credits: Sandy Creek Site, Forest Hills Site, Little Beaver Creek Site, Chapel Creek Site. All four (4) projects are located in either the Upper or Lower Sub - watersheds of Jordan Lake. The memo requested DWR review these projects for retroactive credits with the following considerations: 1) DWR consider the projects under the October 24, 2014 temporary buffer mitigation rules because they were originally submitted for closeout during that timeframe; 2) DWR evaluate the project proposals for credit as submitted; and 3) DWR suggest alternative credit possibilities under the riparian buffer and nutrient offset rules if there is disagreement on the credit approaches as presented by DMS DWR's responses to the three (3) considerations above are summarized as follows: 1) DWR determined that none of the four projects could be reviewed under the October 24, 2014 Temporary Consolidate Buffer Mitigation Rule, but are subject to the Permanent Consolidated Buffer Mitigation Rule (15A NCAC 02B .0295), effective November 1, 2015. 2) DWR evaluated the project proposals for buffer mitigation credits. The conclusions of this evaluation are provided on pages 3-7. 3) DWR provided alternative credit possibilities under the permanent Consolidated Buffer Mitigation Rule that would apply to each of the four projects. D E Q ,�J North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1611 Mail Service Center I Raleigh, North Carolina 27699-1611 NORTHCof EnvlA 919.707.9000 Deparimem M Envlronmamal Dual DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 A summary of the results of DWR's findings for the request submitted by DMS above for each project is provided on pages 3-7. For the purposes of this memo, the Temporary Consolidated Buffer Mitigation Rule, 15A NCAC 02B .0295 effective October 24, 2014 will be referred to as "Temporary Rule" and the Permanent Consolidated Buffer Mitigation Rule. 15A NCAC 02B .0295 effective November 1, 2015 will be referred to as "Permanent Rule". Page 2 of 9 DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 A) DWR Review of Sandy Creek Stream and Wetland Restoration Site (DMS IMS ID# 322) River Feature 4Distance Alternative 3Retroactive Mitigation 5Mitigation Basin/Credit Type from Mitigation Credit Type Ratio/ Units/Credit Service Area stream Type % of Full Credit 0-100, 'Preservation Buffer only 3:1 @ 100% TBD Cape Fear/Upper Subject New Hope Urban 101-200' 'Preservation TBD Arm of Jordan Stream Buffer only 3:1 @ 33% Lake 'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply with this rule. 2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within that riparian area. s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive crediting options. a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks. Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement. 'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR including the most recent Project Credit Table Template provided online Project Review Notes: • Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5). • Sewer line bisects the conservation easement at the Southwest end of the project. Preservation Credits must be removed within 0-200' where the sewer line interrupts the continuity of the top of bank and outer easement boundary. • All credit types, including wetland and buffer, must be depicted on the credit asset map submitted for this project. There can be no credit stacking of wetland credit and buffer credit within the same footprint. Confirmation of no credit stacking shall be provided. • A Project Credit Table and corresponding Figure showing Preservation credits proposed under the Permanent Rule must be submitted. Final Steps: DMS can submit the Sandy Creek project for a final review of buffer mitigation credits per the instructions provided on page 3. Once a final submittal has been provided to DWR, DMS will receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for this project. The draft asset map submitted by DMS with their proposal is attached for reference. Page 3 of 9 DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 B) DWR Review of Forest Hills Stream Restoration Site (DMS IMS ID# 139) River Feature 4Distance Alternative 3Retroactive Mitigation 5Mitigation Basin/Credit Type from Mitigation Credit Type Ratio/ Units/Credit Service Area stream Type % of Full Credit Cape TOB-29' 'Preservation Buffer only 3:1 @ TBD Fear/Upper Subject 75% New Hope Urban Arm of Jordan Stream 0-100, 'Preservation Buffer only 3:1 @ TBD Lake 100% 'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply with this rule. 2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within that riparian area. s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive crediting options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites. a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks. Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement. 'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR including the most recent Project Credit Table Template provided online Project Review Notes: • Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5). • Sewer line is present within the conservation easement. Preservation Credits must be removed within 0-200' where the sewer line interrupts the continuity of the top of bank and outer easement boundary. • Vegetation management zones need to be excluded from credits. • Two stormwater outfall pipes /culverts create non -diffused flow through the buffer. The footprint of the non -diffused flow needs to be clearly marked on a map and removed from credit assets. • The conservation easement appears to be at least 30' wide throughout the project and meets the minimum width required, except at the southernmost easement boundary. Therefore, even if preservation credits abut a vegetation management zone or sewer easement, all credits can be proposed at 100% full credit except where the width is <30' and forested (not in grass). • A Project Credit Table and corresponding Figure showing Preservation credits proposed under the Permanent Rule must be submitted. Final Steps: DMS can submit the Forrest Hills project for a final review of buffer mitigation credits per the instructions provided on page 4. Once a final submittal has been provided to DWR, DMS will receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for this project. The draft asset map submitted by DMS with their proposal is attached for reference. Page 4 of 9 r I i \ 1 �I 1�E}1 y i � j • elf, { DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 C) DWR Review of Little Beaver Creek Stream and Wetland Restoration Site (DMS IMS ID# 221) River Feature 4Distance Alternative 3Retroactive Mitigation 5Mitigation Basin/Credit Type from Mitigation Credit Type Ratio/ Units/Credit Service stream Type % of Full Area Credit Rural Non- 0-100' 'Preservation, Buffer only 15:1 & 62:1 TBD Cape Subject 6Enhancement @ 100% Fear/Lower Streams 101-200' 'Preservation, Buffer only 15:1 & 62:1 TBD New Hope (if 6Enhancement @ 33% Arm of applicable) Jordan Lake Rural 0-100, 'Preservation, Buffer only 110:1 & TBD Subject 6Enhancement 62:1 Streams @ 100% 101-200' 'Preservation, Buffer only 110:1 & TBD 6Enhancement 62:1 @ 33% 'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply with this rule. 2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within that riparian area. s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive crediting options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites. a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks. Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement. 'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR including the most recent Project Credit Table Template provided online 'The area described as an Enhancement Site was assessed and determined to comply with all of 15A NCAC 02B .0295(o)(6). Cattle exclusion fencing is required to be installed around the mitigation area to get buffer credit under this part of the Project Review Notes: • Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5) and 15A NCAC 02B .0295 (o)(6). • Where maps depict pasture as pre-existing conditions and cattle fencing is installed, the project area will qualify as Cattle Exclusion Enhancement per 15A NCAC 02B .0295 (o)(6). If fencing will not be installed, these areas will qualify as Preservation per 15A NCAC 02B .0295 (o)(5). • Where maps do not depict pasture as pre-existing conditions, project area will qualify as Preservation per 15A NCAC 02B .0295 (o)(5) or (o)(4). Topographical maps included in the mitigation plan do not depict Northern Drainage 1, Northern Drainage 2 or Southern Tributary, which were to be restored using Priority 1 restoration according to the submitted mitigation plan. Unless these three features are present on the NRCS Soil Survey, they will be considered "Not Subject" and therefore will qualify as Preservation per 15A NCAC 02B .0295 (o)(4). Provide a NRCS Soil Survey showing the project boundary and these Page 5 of 9 DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 features to justify Preservation per .0295 (o)(4); otherwise, riparian areas will qualify as Preservation per .0295 (o)(5). • All credit types, including wetland and buffer, must be depicted on the credit asset maps submitted for this project. There can be no credit stacking of wetland credit and buffer credit within the same footprint. Confirmation of no credit stacking shall be provided. • A Project Credit Table and corresponding Figure showing Cattle Exclusion Enhancement credits and Preservation Credits must be submitted Final Steps: DMS can submit the Little Beaver Creek project for a final review of buffer mitigation credits per the instructions provided on pages 5-6. Once a final submittal has been provided to DWR, DMS will receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for this project. The draft asset map submitted by DMS with their proposal is attached for reference. Page 6 of 9 X x REr �2 �: Uttte Beaver Creek I M" i DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 D) DWR Review of Chapel Creek Stream Restoration Site (DMS IMS ID# 77) River Feature 4Distance Alternative 3Retroactive Mitigation 5Mitigation Basin/Credit Type from Mitigation Credit Type Ratio/ Units/Credit Service Area stream Type % of Full Credit TOB-100' 'Preservation Buffer only 3:1 @ TBD Cape 100% Fear/Upper Subject New Hope Urban 101-200' 'Preservation Buffer only 3:1 @ TBD Arm of Jordan Stream 33% Lake 'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply with this rule. 2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within that riparian area. s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 does not allow retroactive crediting options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites. a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks. Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement. 'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR including the most recent Project Credit Table Template provided online Project Review Notes: • Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5). • A Project Credit Table and corresponding Figure showing Preservation credits proposed under the Permanent Rule must be submitted. Final Steps: DMS can submit the Chapel Creek project for a final review of buffer mitigation credits per the instructions provided on page 7. Once a final submittal has been provided to DWR, DMS will receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for this project. The draft asset map submitted by DMS with their proposal is attached for reference. Page 7 of 9 A830EAE7-A678-4794-8HE-Cl B816751 E680 EL Chapel Creek: Proposed Riparian Buffer and Nutrient Offset Credits 2022 r e♦♦.��ee♦♦♦ee y ��ea♦♦♦♦♦eG♦♦♦e6♦o ♦epees ��♦♦e♦♦♦♦♦♦♦♦♦♦♦s♦�►��,� , IIII 1101��111111111111111 IIIIIIIIIIIIIIIII IIIII Illlliill _ �♦♦♦♦♦♦♦♦♦e♦e♦�s��♦�� F , IIIIIIIII IIIIIIIIIIII�II II IIII I reeeeeeeeie♦♦♦♦e�`�� ♦ `I uulluuuulilluuuuliiiiiiiiiiiiiiiiill// .�eee♦♦♦♦♦♦♦♦yo♦�.�� IIIIIIIIIIIIIIIII .♦.�� ee�ea.�e�.o♦aeeee♦i♦ ♦♦i♦i♦i� .�� '�♦i♦i♦♦♦i♦i♦i♦ie ei♦iei♦iei`.. -. see♦ �. Oei♦iei=♦!♦♦�►'�� ♦♦e♦♦♦e♦eeeee.�+♦e♦e♦�ie♦i`e . e��' `��w��`''s♦♦!�♦�:.r ♦i♦i♦i♦iei♦iC°��eeM'1;�oP.9��,.-a-.�i`. ♦��e�♦t, a..,, .��♦e�► ♦ere♦e♦ee�eee♦e♦e♦♦♦♦♦ •e.�♦♦♦e♦i♦i`. eei♦i��*i��'�ee�♦+♦►es♦i♦i•,se r.".r;• ;.., . �♦♦♦♦� ♦�v'y�^� . I�IIIIIIIIIIIIOI�IIIIII a 'x4 _ �`♦eeee♦♦� +y Legend Conservation Easement s. ` Channel 0'-30' 30' - 100' ;. TOB to 100' + �;�� > 1ou page 7B - DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1B816751E68 Attachment: Office Memorandum from Division of Mitigation Services dated April 18, 2022 DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68 ROY COOPER Governor ELIZABETH S. BISER Secretary MARC RECKTENWALD Director NORTH CAROLINA Environmental Quality OFFICE MEMORANDUM To: Katie Merritt, Riparian Buffer and Nutrient Offset Credit Manager, DWR From: Lindsay Crocker, Eastern Supervisor Project Management, DMS Date: April 18, 2022 Re: Legacy Credits —Upper and Lower New Hope Cape Fear 02 watershed Background for Context January 1, 2014, the Consolidated Buffer Mitigation Rules (15A NCAC 02B .0295) rules went into effect. On October 24, 2014, the rules were readopted as temporary rules. These rules were permanently adopted on November 1, 2015. The creditable changes between the first two versions and final version of the rule included among other things, ratio changes for mitigation, caps on certain buffer widths, and preservation only credit allowance on projects. On October 14, 2014, DMS formally submitted four sites for consideration under the temporary consolidated rules in the Jordon Lake Upper and Lower New Hope (UNH and LNH) watersheds. Submission included GIS maps, asset tables, and project information. Historically, this watershed has a consistent need for buffer and/or nutrient offset credits, and DMS has difficulty in procuring private mitigation. According to the DMS Project Manager at the time (Jeff Schaffer, retired), these sites were visited with DMS and DWR staff in 2014. Correspondence between staff (Katie Merritt, DWR and Jeff Schaffer) in 2014 confirms these site visits and describes that DWR was seeking legal interpretation of these rules before assigning credit. In March 2016, DWR requested that DMS resubmit the sites for closeout under the recently revised permanent rule. Since then, the difficulty in procuring mitigation has increased to the extent that the Department of Environmental Quality has suspended the acceptance of payments in the UNH and LNH service areas until effective solutions are developed. Three of the four previously submitted legacy projects in the Upper and Lower New Hope have riparian buffer and/or nutrient offset credit which are in the DMS accounting system (CRM). These projects have credit that is equivalent to approximately 6 acres of riparian buffer, and 2.5 acres of nutrient offset. These are in addition to DMS' current need of —30 acres of riparian areas (equivalent) to satisfy mitigation obligations in the UNH and LNH areas. D Q �� North Carolina Department of Environmental Quality I Division of Mitigation Services 217 West Jones Street 1 1652 Mail Service Center I Raleigh, North Carolina 27699-1652 rr NOR I H AAROLINA DeR mcm n}Emdrc ial Owkty r 919.707.8976 DocuSign Envelope ID: A830EAE7-A678-4794-8HE-C1B816751E68 Current Request DMS is submitting these four projects for credit consideration. Submittal includes background information on the projects, land use history, planting information, credit maps and asset tables. If a site would generate different credit between the two versions of the rule, then two tables were submitted. A summary of the sites is shown below and there are five years of monitoring reports for all projects available: https://deg.nc.gov/about/divisions/mitigation-services/dms-protect-documents- table. DMS respectfully requests that: 1. DWR consider these projects for close out under the October 24, 2014 temporary rules because they were originally submitted for close out during that timeframe; 2. DWR evaluate these proposals for credit as submitted; and 3. If applicable, DWR suggest alternative credit possibilities under the riparian buffer and nutrient offset rules if there is disagreement on DMS presented credit approaches. We look forward to working together to resolve the credits on these projects. ULNH Buffer Analysis: Legacy Projects Riparian Forest Hills: UNH Buffer or Nitrogen/ Phosphorus In CRM 247,787 Potential in Temporary 236,238 8,225 498 Potential in Permanent 236,238 8,225 498 +/- -11, 549 Riparian Little Beaver Creek: LNH Buffer Nitrogen Phosphorus In CRM 0 Potential in Temporary 443,158 Potential in Permanent 443,158 +/- 443,158 Scenario B Potential in Temp 181,978 Scenario B Potential in Perm 153,716 Riparian AND Chapel Creek: UNH Buffer Nitrogen/ Phosphorus In CRM 24,481 3,494 118 Potential in Temporary 86,789 3,495 176 +/- 62,308 0 0 Potential in Permanent 39,646 3,495 176 +/- 15,165 0 58 Riparian Sandy Creek: UNH Buffer Nitrogen Phosphorus In CRM 1,963 1,788 113 Potential in Temporary 65,309 0 0 Potential in Permanent 0 0 0 +/- 63,346 -1,788 -113 R North Carolina Department of Environmental Quality I Division of Mitigation Services 217 West Jones Street 1 1652 Mail Service Center I Raleigh. North Carolina 27699-1652 NORTH CAROUNA aea.rtrn.M & E.W.. J/" 919.707.8976