20100642 Ver 1_Emails_20100824

0 OGL-Ia.
Kulz, Eric
From: Williams, Andrew E SAW [[e-mail]]
Sent: Tuesday, August 24, 2010 7:22 PM
To: Darrell Metcalf
Cc: [e-mail]; Hill, Tammy; Mcmillan, Ian; Tugwell, Todd SAW; Bryant, Shari L.;
[e-mail]; Kulz, Eric
Subject: Proposed La Foresta Stream Mitigation Bank (SAW-2010-01239)
Attachments: LaForesta MB_Draft Prospectus_NCWRC.pdf; La Foresta Draft Prospectus Comments
8-11-10.pdf; Memo 20100813.pdf
Dear Mr. Metcalf:
Reference is made to the DRAFT Prospectus for the La Foresta Stream Mitigation Bank
received on July 26, 2010. The DRAFT Prospectus indicates that you propose to restore
approximately 4,500 linear feet of jurisdictional stream channels, within the proposed bank
boundaries of approximately 47 acres. The proposed mitigation bank is located south of
Hicone Road, east of Rankin Mill Road and immediately west and southwest of the La Foresta
Drive terminus, in Guilford County, North Carolina, within the Cape Fear River Basin,
Hydrologic Unit Code (HUC) 03030002.
On July 26, 2010, your DRAFT Prospectus was forwarded via electronic mail to
representatives of the Interagency Review Team (IRT). The individuals who received the DRAFT
Prospectus were: Rebecca Fox, United States Environmental Protection Agency (USEPA), Ian
McMillan and Tammy Hill, both with the North Carolina Department of Environment and Natural
Resources (NCDNR), Howard Hall, United States Fish and Wildlife Services (USFWS), Shari
Bryant, North Carolina Wildlife Resources Commission (NCWRC) and Todd Tugwell of the United
States Army Corps of Engineers (USACE). Written comments were requested by August 16, 2010.
Written responses to the DRAFT Prospectus were received from the NCDNR, NCWRC and the
USACE. We concur with all of the comments provided by NCDNR, NCWRC and USACE. These written
responses are attached for your review. Also, based on our review, the prospectus does not
adequately addresses all the items required by the 2008 Mitigation Rule (33 CFR Part
332) for a complete prospectus. Specifically, the prospectus does not include the following:
1) How the bank will be established and operated.
2) The proposed service area.
3) the proposed ownership arrangements and long-term management strategy for the bank.
4) Qualifications of the sponsor to successfully complete the types of mitigation projects
proposed, including information on past activities.
5) Assurances of sufficient water rights to support long-term sustainability of the bank.
6) Ecological suitability of the site to achieve the objectives of the bank.
While a portion of the draft prospectus mentions ecological suitability, much of the concern
regarding this proposal involves the relocation of approximately 50% of the stream channel
length upslope to remove it from within the existing Duke power line easement. Based on our
current assessment of the proposed stream relocation upslope from the existing location, we
strongly suggest that you modify your proposal, should you chose to pursue this project.
Furthermore, the proposal appears to impact existing adjacent wetlands. You should be aware
that if wetland areas are lost as a result of the project and not replaced, this project may
require an Individual Section 404 permit.
Additionally, as stated above, we concur with all of the comments provided by NCDNR,
NCWRC and USACE. Consideration of all these comments should be made and addressed if you
submit a revised prospectus.
1
Furthermore, You should also be aware that a new model mitigation banking instrument for
private mitigation banks is available at our website
http://www.saw.usace.army.mil/WETLANDS/Mitigation/mitbanks.html.
If you have questions or comments, please contact me at my Raleigh Regulatory Field
Office address, telephone [phone] ext. 26.
Andrew Williams
Regulatory Project Manager
U.S. Army Corps of Engineers
Wilmington District, Raleigh Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
919-554-4884 ext. 26
We would appreciate your feedback on how we are performing our duties. Our automated Customer
Service Survey is located at:
http://per2.nwp.usace.armV.mil/survey.html
Thank you for taking the time to visit this site and complete the survey.
2
0 North Carolina Wildlife Resources Commission 0
Gordon Myers, Executive Director
MEMORANDUM
TO: Andrew Williams, Raleigh Regulatory Field Office
U.S. Army Corps of Engineers
FROM: Shari L. Bryant, Piedmont Region Coordinator
Habitat Conservation Program
DATE: 13 August 2010
SUBJECT: Draft Prospectus for Applied Botany Concepts for La Foresta Stream Mitigation Bank,
Guilford County, North Carolina.
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) have reviewed the
subject document and we are familiar with the habitat values of the area. Our comments are provided in
accordance with provisions of the Clean Water Act of 1977 (as amended), Fish and Wildlife Coordination
Act (48 Stat. 401, as amended; 16 U.S.C. 661-667d), and North Carolina General Statutes (G.S. 113-131 et
seq.).
Applied Botany Concepts proposes to establish the La Foresta Stream Mitigation Bank. The site is
currently used for livestock grazing, and approximately 4,500 linear feet of unnamed tributaries to North
Buffalo Creek in the Cape Fear River basin flow through the site. Approximately 50 percent of the main
stream channel is within a transmission line right-of-way maintained by Duke Energy. A combination of
restoration and preservation will be used that includes creating a vegetative buffer, improving dimension,
pattern, and profile of impaired stream sections, and incorporating structural improvements. A conservation
easement will be used to protect the site. The objective is to improve onsite and downstream water quality,
provide flood attenuation, and reverse aquatic and riparian habitat degradation.
The applicant states "Much of the main stream channel is within a Duke Energy transmission line
maintenance easement. It is of the upmost importance that the stream alignment be relocated outside of the
transmission line easement." While we recognize potential benefits to relocating the stream outside of the
transmission line easement, we are concerned that the proposed relocation appears to be upslope of the
existing stream channel. Relocating the stream channel upslope may require removing a significant amount
of soil to re-establish a floodplain at a lower elevation. From the information provided in the draft
prospectus, it is not possible to determine that the benefits of relocating the stream channel in this area
outweigh the risks. Stream enhancement such as fencing out livestock and allowing a scrub/shrub riparian
buffer to develop along that section of the stream within the transmission line right-of-way could provide
significant benefits to the stream.
Mailing Address: Division of Inland Fisheries • 1721 Mail Service Center • Raleigh, NC 27699-1721
Telephone: [phone] • Fax: [phone]
Page 2
13 August 2010
Draft Prospectus - La Foresta Stream Mitigation Bank
The applicant states "Applied Botany Concepts must relocate the stream alignment in order to
adequately provide stream mitigation on this site. Without this relocation, the mitigation project is no longer
feasible." We do not feel this is a sufficient reason to relocate a stream channel. Relocation of a stream
channel should be based on identified functional benefits to stream geomorphology, water quality, and
aquatic life on the site and in the downstream watershed.
The applicant states "Due to constraints resulting from existing floodplain morphology and in an
effort to preserve the stream's natural alignment, Applied Botany Concepts will reduce the buffer width on
the west side of the main stream where it adjoins the transmission line easement. It is understood that this
buffer reduction will result in a decrease in mitigation credits." This statement is unclear. The applicant is
proposing to relocate the stream channel which means the stream's natural alignment will not be preserved.
We are concerned about a reduced riparian buffer and long-term channel and bank stability in a stream that
has been relocated upslope of the existing channel. Riparian buffers are important to maintain long-term
bank stability, and are needed to improve aquatic habitat (e.g., woody debris and leaf packs), and to moderate
stream temperatures through shading.
At this time, we have several questions and concerns regarding the proposed mitigation bank. We
are concerned about relocating the stream channel upslope from the existing stream channel and reducing
riparian buffers. We feel more information is needed to determine that the benefits of relocating the stream
outweigh the risks. We need to be assured that the proposed project will result in long-term channel and
bank stability and provide benefits to water quality and aquatic habitat on site as well as downstream. To
complete our review, we request the following information:
• A topographic map showing the contour elevation(s) of the existing stream channel and the
contour elevation(s) for proposed relocated stream channel.
• Please label each tributary (as described in Exhibit 1) on Figure 2, and include whether the
tributary is perennial or intermittent. Based on the Channel Stability Assessment (Exhibit 1), it
appears most of the sediment is coming from one tributary, and not from the main channel.
Identifying the tributaries on a map would be helpful to identify problem areas within the site,
and potential restoration areas.
• Detailed information on the length of the existing stream channel and the proposed length of
relocated stream channel. Also, please include which areas are proposed for restoration or
preservation and how it is anticipated that the stream mitigation units (credits) for this bank will
be determined.
• We have several questions regarding the proposed relocated channel design, these include:
o How the relocated channel will be moved upslope? As indicated, this may require removing
a significant amount of soil to re-establish the floodplain at a lower elevation.
o How wide will the riparian buffers be for the relocated channel, particularly on the west side
adjacent to the transmission line. Please include whether there will be any restrictions on the
types of vegetation (e.g., trees) within the riparian buffer on the west side of the relocated
channel.
o How will plugging and filling the existing channel be done?
o Is the proposed design sufficient to handle build-out conditions in the watershed? It is
indicated this is in an urbanizing watershed.
o We recognize that Figure 2 is a simplistic graphic showing the existing and relocated stream
channels. However, the stream channel design for the relocated channel is relatively
uniform and resembles a sine wave. Will the final design have more variation in the pattern?
Page 3
13 August 2010
Draft Prospectus - La Foresta Stream Mitigation Bank
Thank you for the opportunity to review and comment on this draft prospectus. If we can be of
further assistance, please contact our office at [phone].
cc: Howard Hall, USFWS
Rebecca Fox, USEPA
Ian McMillan, DWQ
REPLY TO
ATTENTION OF
CESAW-RG/Tugwell
MEMORANDUM FOR RECORD
August 13, 2010
SUBJECT: Comments on Draft Prospectus for the proposed La Foresta Stream Mitigation Bank
1. Purpose: The purpose of this memo is to provide comments on the Draft Prospectus for the La
Foresta Stream Mitigation Bank. These comments address the specific requirements identified
in the April, 2008, the Federal Mitigation Rule (Rule), which establishes the standards and
criteria for the use of all types of compensatory mitigation, including on-site and off-site
permittee-responsible mitigation, mitigation banks, and in-lieu fee mitigation to offset
unavoidable impacts to waters of the United States authorized thought the issuance of
Department of the Army (DA) permits pursuant to Section 404 of the Clean Water Act (33
U.S.C. 1344) and/or Sections 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401,
403).
2. Background: The site for the proposed La Foresta Stream Mitigation Bank was previously
reviewed in the field on April 281h. Comments made during this meeting were taken into account
during the preparation of the Draft Prospectus.
3. Draft Prospectus Comments: In general, the Draft Prospectus appeared to be lacking in
several areas that are specifically required by the Rule (see below). The primary concern
associated with the bank has to do with the proposal to move the channel away from its current
location, which appears to be its natural and historic location. This, along with the inability to
provide a full 50-foot wooded buffer, are significant concerns that, if not addressed in the Final
Prospectus, would be fatal flaws with the proposed bank.
The following specific comments pertain to the Draft Prospectus:
• The stated objectives of the mitigation bank identify five areas where improvements will
be made. These objectives do not include a discussion about the type of mitigation that
will be produced by the bank (stream, buffer, wetland, etc.) or the approximate quality
that might be produced. Additional information to address this would be helpful.
• No discussion is in the Draft Prospectus about how the mitigation bank would be
established and operated.
• The Proposed Service Area section of the document identifies the location of the bank but
does not seem to specifically request a particular service area. Additional clarification as
to the expected service area as defined in the Rule.
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
• The Need and Feasibility of Mitigation Bank section states that the Cape Fear Basin
includes developing urban centers. The discussion includes information about how
degraded the proposed site is, but does not go into any further detail about the need for a
bank in this watershed (i.e., demand for credits).
• There is no discussion about the proposed ownership arrangements or long-term
management strategy for the bank. The Need and Feasibility section states that it will no
longer be possible to proceed with the proposed single-family subdivision in the area of
the bank once the bank is established. It is not clear from the subdivision plat that this is
the case. It appears that remaining portion of the site may still be used for development.
What would be the future proposed use of the site following establishment of the bank?
• Qualifications of the proposed sponsor are not included.
• The project does provide some information about the ecological suitability of the site to
provide mitigation in the Need and Feasibility Section, but there are concerns about how
the proposal will support the planned types of aquatic resources. It appears that the
proposal is to move the stream upslope to the east so that the stream is no longer under
the transmission line. There are several major problems associated with this:
o Moving the stream upslope away from the low point of the valley produces a
situation where flows will move to the bottom of the valley during flooding
conditions. Over time this could cause instability within the stream, possibly
resulting in the migration of the stream back to its current location and condition.
Also, if the flood flows follow the valley slope, it is unclear how these flows will
be encouraged to move back to the constructed stream location at the downstream
end of the project.
o Moving the stream uphill and raising the bed to reconnect it to the floodplain may
disconnect the stream from groundwater, resulting in adverse base flow
conditions, particularly during drought periods.
o There is no plan shown to connect the small tributary that comes into the main
channel from the west across the transmission line easement into the new channel.
o At the very upper end of the project, it appears that there may be a stream that
comes into the site from the northwest. How will this stream be connected to the
new channel alignment?
o The project description mentions that it would be necessary to have a reduced
buffer on the west side of the project where it adjoins the transmission line
easement, but it appears from the Site Map that the buffers will be substantially
less than the required 50 feet on both the west and east sides of the stream, with
areas where the stream looks to abut the proposed easement. If the stream cannot
be located a sufficient distance away from the transmission line easement to
develop a buffer that can effectively protect the stream, the proposal does not
meet the minimum requirements to be a viable stream mitigation bank. Please
note that draft Federal/State guidance for determining stream credits generated
with projects with non-standard buffer widths is now out for comment (available
on our website). This guidance states that no credit can be generated where
buffers are not at least 15' in width from top of stream bank in the piedmont and
coastal plain.
o The relocated stream appears to cross through 2 potential wetland areas. These
areas would be adversely affected by the construction of a stream project within
their boundaries. A jurisdictional delineation should be conducted on the site to
identify the limits of Corps jurisdiction. Furthermore, if wetland areas lost as a
result of the project and not replaced, the project may not quality for authorization
under Nationwide Permit 27, in which case an individual permit would be
required.