20091190 Ver 2_Mitigation Information_20091202

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MITI GAT I ON S E RV I C E S
Bringing business into a natural environment.
November 30, 2009
Mr. Steve Chapin
IRT Chair
U.S. Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006

Re: Catawba River Umbrella Mitigation Bank, McDowell Creek Tributaries Bank
Site - Prospectus Comments
Action ID SAW-2009-01675
Mr. Chapin:
We received the comments provided by the North Carolina Department of
Environment and Natural Resources, Division of Water Quality (DWQ)
regarding our Catawba River Wetland and Stream Umbrella Mitigation Bank
Prospectus dated October 12, 2009. We appreciate the opportunity to address
DWQ's comments and concerns and to incorporate them as we move forward.
Below are the original comments followed by our reply:
"Overall, the mitigation bank appears to be well positioned, and the initial
project appears to be a viable candidate for providing mitigation credits
through the restoration and enhancement of a stream network and associated
wetlands and riparian buffer. We support the further development of an
Umbrella Mitigation Banking Instrument for the bank and a mitigation plan
for the McDowell Creek Tributary Bank Site. "
We are confident this Bank site offers an opportunity to greatly enhance and
improve the ecological conditions of the regional watershed. We are
currently preparing an Umbrella Mitigation Banking Instrument for review
by the IRT.
"The UMBI should clam the Conditions on Debiting and define a "credit"
for the purposes of this bank. Generally, 2 acres of wetland restoration (or I
acre of restoration and I restoration equivalent composed of preservation or
enhancement with ratios applied) will be debited for every acre of wetland
impact. Stream mitigation requirements will be determined according to the
2003 (or subsequent) Stream Mitigation Guidelines and the permitting
agencies. "
The UMBI will define what the "credits" are and describe in detail how they
are calculated and will be used and debited from the Bank.
12800 UNIVERSITY DR. SUITE 400 • FT. MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD - CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302
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M I T I G A T I O N S E R V I C E S
Bringing business into a natural environnnnt.
"The credit release schedule for wetlands should be modified slightly to
show 10% of credits released after demonstration of success in each of the
seven monitoring years. Wetland monitoring should occur for seven years. If
hydrology success has been demonstrated during the first f ve years, the IRT
may consider allowing the sponsor to discontinue groundwater monitoring
and continue vegetation monitoring only during the last two years of the
monitoring period. "
The UMBI will include the following Credit Release Schedule for Forested
Wetlands, as outlined in the "Model Mitigation Banking Instrument for
Private Mitigation Banks": "If deemed appropriate by the IRT, fifteen percent
(15%) of the Bank's total restoration credits shall be available for sale
immediately upon completion of all of the following:
1. Execution of this UMBI by the Sponsor, the DE, and other agencies
eligible for membership in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this UMBI;
and
5. Recordation of the long-term protection mechanism described in Section X
of this UMBI, as well as a title opinion covering the property acceptable to the
DE.
The Sponsor must complete the initial physical and biological improvements to
the Bank site pursuant to the Mitigation Plan no later than the first full growing
season following initial debiting of the Bank. Subject to the Sponsor's continued
satisfactory completion of all required success criteria and monitoring, additional
restoration mitigation credits will be available for sale by the Sponsor on the
following schedule:
1. 15 % upon completion of all initial physical and biological improvements
made pursuant to the Mitigation Plan (total 30%);
2. 10% after first year, if interim success measures are met (total 40%);
3. 10% after second year, if interim success measures are met (total 50%);
4. 10% after third year, if interim success measures are met (total 60%);
5. 10% after fourth year, if interim success measures are met (total 70%);
6. 10% after fifth year, if Success Criteria are met (total 80%);
7. 10% after sixth year, if vegetative Success Criteria are met (90%); and
8. 10% after seventh year, if vegetative Success Criteria are met (100%).
Provided that all Success Criteria are met, the IRT may allow the Sponsor to
discontinue hydrologic monitoring after the fifth year. The Sponsor will be
required to monitor vegetation for an additional two years after the fifth year for
a total of seven years. "
¦ "The credit release schedule for streams should include the following events.
Each credit release is dependent upon approval from the USACE after
consultation with the IRT.
12800 UNIVERSITY DR. SUITE 400 - FT MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD • CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302
E art ark November 30, 2009, Pg. 3
M I T I G A T I O N S E R V I C E S
Bringing business into a natural environment.
O 15% upon completion of execution of the Mitigation Banking
Instrument by the sponsor and the IRT, approval of the
mitigation plan, delivery of financial assurances, and
recordation of the preservation mechanism and title opinion
covering the property.
O 15% upon completion of all initial physical and biological
improvements made pursuant to the Mitigation Plan.
0 10% after each of monitoring years one through four, provided
channel is stable and all other success measures are met.
0 15% after monitoring year five, provided channel is stable and
all other success measures are met.
0 15% any time after two bank full events have occurred, in
separate years, provided the channel is stable and all other
Success Criteria are met. In the event that less than two bank-
full events occur during the monitoring period, remaining credit
release shall be at the discretion of the IRT. "
The UMBI will include the following Credit Release Schedule for Streams,
as outlined in the "Model Mitigation Banking Instrument for Private
Mitigation Banks":
"The following credit release schedule applies only to those stream projects
where Restoration or Enhancement I has been performed where pattern,
dimension, and profile, or dimension and profile (respectively) have been
improved.
If deemed appropriate by the IRT, fifteen percent (15%) of the Bank's total
stream credits shall be available for sale immediately upon completion of all of
the following:
1. Execution of this UMBI by the Sponsor, the DE, and other agencies
eligible for membership in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this UMBI;
and
5. Recordation of the long-term protection mechanism described in Section X
of this UMBI, as well as a title opinion covering the property acceptable to the
DE.
Subject to the Sponsor's continued satisfactory completion of all required success
criteria and monitoring, additional stream credits will be available for sale by the
Sponsor on the following schedule:
1. 15 % upon completion of all initial physical and biological improvements
made pursuant to the Mitigation Plan (total 30%);
2. 10% after first year, provided channel is stable and all other success
measures are met (total 40%);
3. 10% after second year, provided channel is stable and all other success
measures are met (total 50%);
12800 UNIVERSITY DR. SUITE 400 - FT. MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD • CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 • OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302
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M I T I G A T I O N S E R V I C ES
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4. 10% after third year, provided channel is stable and all other success
measures are met (total 60%);
5. 10% after fourth year, provided channel is stable and all other success
measures are met (total 70%);
6. 15% after fifth year, provided channel is stable and all other success
measures are met (total 85%).
A reserve of 15% of the Bank's total stream credits shall be released any time
after two bank-full events have occurred, in separate years, provided the channel
is stable and all other Success Criteria are met. In the event that less than two
bank-full events occur during the monitoring period, remaining credit release
shall be at the discretion of the IRT."
¦ "In regards to Contingency Plans and Corrective Actions, the bank sponsor
shall be responsible for all corrective actions necessary to maintain the
integrity of the mitigation project until its transfer to the long-term land
steward, regardless of the cause of deficient conditions. "
The UMBI will include the following:
"The Sponsor will be, by default, responsible for all mitigation success of the
Bank Sites until monitoring requirements and success criteria have been met as
well as for the long-term management of the project until a suitable third-party
land steward has been secured. A long term management plan will be developed
prior to Bank approval which will define the actions and responsible party after
Bank closure."
"Our rules (15A NCAC 2H.0506 (h) (8)) indicate that mitigation shall occur
within the same river basin and physiographic province when practical.
Current State Law (SL 2009-337) requires non-governmental permittees to
utilize mitigation bank credits if they are available within the same 8-digit
Cataloging Unit as the impact. The Geographic Service Area (GSA) should
include the area in which the mitigation site can reasonably be expected to
offset the loss of water quality due to impacts of similar wetland resources.
The location of the proposed McDowell Creek Bank Site involves an 8-digit
CU that spans both the Piedmont and Blue Ridge Mountains Level 3
Omernick ecoregions. We suggest that the primary GSA of the proposed
project be limited to the portion of the 8-digit hydrologic unit within the
Piedmont ecoregion, and that any use in adjacent cataloging units within the
Catawba Basin be subject to the ratio adjustments specified in Guidance on
the Use of Compensatory Mitigation in Adjacent Cataloging Units. "
We will incorporate 15A NCAC 211.0506 (h)(8) and SL 2009-337 when
determining the service area for the Bank and appropriate ratios for
debiting.
12800 UNIVERSITY DR. SUITE 400 • FT. MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD • CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 • OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302
E a rt a r k November 30, 2009, Pg. 5
M I T I G A T I ON S E R V I C ES
Bringing business into a natural environment.
"We appreciate the efforts taken to consult several watershed plans and
articles in order to consider the project in a watershed context. The proposal
describes how current and expected urbanization around the McDowell Site
will be taken into account when designing the project for long-term stability
and viability. "
We understand that stream systems are highly sensitive to surrounding
development. Huntersville will continue to experience rapid growth, thus
incorporating the anticipated changing watershed into our design is crucial
for the success of the Bank.
¦ The conceptual restoration plan does not specify the extent of the
conservation easement boundaries. The conservation easement perimeter
fencing should be far enough from the restored stream reaches to provide a
minimum 50 foot undisturbed (i.e. not impacted by herbicide application or
mowing for fence maintenance) riparian buffer in all locations.
The conservation easement will be a minimum of 50 feet from the top of
bank of the restored streams on both sides throughout the Bank site.
Fencing will be installed in a manner that will protect the easement from
disturbances on adjacent land uses.
"The conceptual restoration plan indicates that the restored wetland type
will be a seasonally saturated forested wetland with a minimum hydroperiod
of 5 percent of the growing season. As you know, Table 5 in the 1987 Corps
of Engineers Wetlands Delineation Manual describes "seasonally inundated
or saturated" as 12.5 to 25 percent of the growing season. We recommend
that the bank sponsor aim for greater than the minimum jurisdictional
hydroperiod in the restored wetlands. Targeted hydroperiods should be
developed based upon hydrologic modeling, reference comparisons, and
community descriptions available in the scientific literature. In the absence
of data indicating the site should be drier, 12.5% in most years is a
reasonable target for bottomland hardwood forest restoration projects,
especially during the early years of site development when
evapotranspiration is low. "
The wetland restoration design goals will be to achieve greater than 12.5%
saturation during the growing season. If data is gathered that indicates the
restored wetlands are successful without 12.5% saturation during the
growing period, we would like to take this into account with consultation
from the IRT. We have identified a reference wetland that will be monitored
to determine if the goals set for the wetland restoration areas are
appropriate. Rainfall data will also be taken into consideration. More detail
on wetland hydrology and success criteria will be included in the Mitigation
Plan.
12800 UNIVERSITY DR. SUITE 400 • FT. MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD - CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 • OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302
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M I T I G A T I O N S E R V I C E 5
Bringing business into a natural environment.
Thank you for the opportunity to address the comments submitted by the DWQ.
Incorporating these comments into the design and preparation of the UMBI will
be an important step in creating a successful mitigation bank. We look forward to
continuing to work with you and the rest of the IRT.
If you have any questions or need additional information please contact me at
[phone] (office), [phone] (cell), or by email at
Tommy. [e-mail].
Very truly yours,
Tommy Cousins, PWS
Project Manager
EarthMark Mitigation Services, LLC
CC: Chris Estes, Estes Design, via email
Frank Henry, Estes Design, via email
Matt Fisher, EarthMark, via email
Doug Cordello, EarthMark, via email
Rich Mogensen, EarthMark, via email
12800 UNIVERSITY DR. SUITE 400 - FT. MYERS FLORIDA 33907 PH 239.415.6250 FX 239.415.6243
1960 DERITA ROAD • CONCORD, NC 28027 PH 704.782.4133 FX 704.782.4148
137 1/2 EAST MAIN STREET SUITE 210 - OAK HILL, WV 25901 PH 304.465.4300 FX 304.465.4302