20090969 Ver 4_USACE Correspondence_20100208

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY To
ATTENTION OF: February 4, 2010
Regulatory Division
Action ID No. SAW-2009-01917
Mr. Kenneth R. Waldroup, PE
City of Raleigh
Public Utilities Department
One Exchange Plaza, Suite 620
Raleigh, North Carolina 27602
Dear Mr. Waldroup:
oq-ogtoq
E-? C
D LS ??D v
FEB 0 8 2010
VVERANOD CVO $TTORV A4jI eri/ NQi
This letter is in reference to the proposed City of Raleigh Umbrella Mitigation Bank.
We received a draft mitigation plan for the Cedar Fork Creek Site on September 29, 2009, which
is proposed for inclusion into the bank and would preserve approximately 9,550 linear feet of
streams and approximately 110 acres of jurisdictional wetlands. A Public Notice concerning the
site was issued on October 20, 2009, which resulted in receiving four written comment letters.
Please find attached these comment letters for your review and consideration, however, realize
that the issues brought forward within the Neuse Riverkeeper letter of October 20, 2009, are
being addressed at our District Office level, and therefore does not require any action on your
part at this time.
After your review of the attached comments, please provide an amended mitigation plan,
including any revisions as a result of the Public Notice process as soon as possible. If you have
any questions please contact Monte Matthews at 919-554-4884, extension 30.
Sincerely,
Jean B. Manuele
Chief, Raleigh Regulatory
Field Office
vy
Enclosures
Copies furnished:
Mr. Eric Kulz
Stream Mitigation Review Coordinator
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, North Carolina 27604
Ms. Rebecca Fox
U. S. Environmental Protection Agency
Wetlands Section - Region IV
1307 Firefly Road
Whittier, NC 28789-8783
Mr. John Ellis
United States Fish & Wildlife Service
Raleigh Field Office
PO Box 33726
Raleigh, NC 27636-3726
Ms. Shari Bryant
N.C. Wildlife Resources Commission
P.O. Box 129
Sedalia, North Carolina 27342-0129
Mr. Todd Tugwell
U.S. Army Corps of Engineers
Wilmington District
11405 Falls of Neuse Road
Wake Forest, North Carolina 27587
Renee Gledhill-Early
Environmental Review Coordinator
North Carolina State Historic Preservation Office
4617 Mail Service Center
Raleigh, North Carolina 27699-4617
Vann F. Stancil - Special Project
Coordinator
NCWRC - Division of Inland Fisheries
Habitat Conservation Program
215 Jerusalem Church Road
Kenly, NC 27542
Justin P. McCorcle
Assistant District Counsel
U.S. Army Corps of Engineers
Wilmington District
69 Darlington Avenue
Wilmington, NC 28403
Robert A. Berndt, P.E.
Senior Associate
Hazen and Sawyer, P.C.
4011 WestChase Blvd., Suite 500
Raleigh, NC 27607
?? rg
r October 20, 2009
NEUSE
RIVERKEEPER.
FOUNDATION Mr. Monte Matthews
Advocate I Educate I Protect U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
LOWER NEUSE Wake Forest, NC 27587
RIVERKEEPER®
Larry Baldwin
1307 Country Club Road Re: Cedar Fork Creek Mitigation Site, Corps Action SAW-2009-01917
New Bern, NC 28562
252-637-7972
252-514-0051 fax Dear Mr. Matthews

[e-mail] ,
I am writing to you today to express concern over the Division of Water Quality's
UPPER NEUSE (DWQ or Division) recent policy decisions addressing the calculation of both
RIVERKEEPER® nutrient offset and buffer credits for restoration sites which may affect calculation
Alissa Bierma of the credits available from the "Cedar Fork Creek Mitigation Site" proposed for
112 South Blount Street inclusion into the City of Raleigh's umbrella mitigation bank. While the
Suite 103
Raleigh, NC 27601 inclusion of the site itself into an umbrella mitigation bank does not present a
919-856-1180 problem for us-the site itself seems a good candidate for wetland and stream
919-839-0767 fax preservation and restoration-the potential for conflicting State and Federal
[e-mail] policy exists and warrants discussion.
The Neuse RIVERKEEPER`, Foundation-as well as other RIVERKEEPERS
BOARD OF organizations in the state-strongly oppose any policy which allows a single
DIRECTORS mitigation action to provide multiple credits which offset the same treatment
Natalie Baggett function and believe that such policies contradicts the intent of the enabling
Phil Bowie legislation.
James Boyd
Richard Dove It is within the intent of wetland and stream impact mitigation to provide the same
Richard Goodwin water quality benefits, including a reduction in nutrient loading to the receiving
Marilyn Grolitzer waters, as was provided by the existing stream or wetland. Therefore, both stream
Tom Hardin and wetland mitigation credits have an intrinsic nutrient offset function in
Jeffrey Harrison addition to their replacement of equivalent habitat and other ecological function.
Mary Ann Harrison The use of acreage that has already offset stream or wetland impacts to
David McCracken obtain riparian buffer or nutrient offsets results in re-crediting of the same
William Olah nutrient removal function already allotted to the existing offset credits,
Sandra Parker resulting in net degradation of water quality. Policies which encourage or
allow this type of dual credit assignment contradict the intent of the N.C. nutrient
offset program's enabling legislation and allow the State to rely upon work
already conducted and required by the Army Corps of Engineers while appearing

WATERKEEPWALLIANCE to provide citizens with additional, heightened environmental protection.
;.` MENIBE19
Allow me to explain, in depth, why a policy of dually crediting the same
ecological benefit violates the intent and reality of the various mitigation/offset
programs at work in the State of North Carolina, including the stream and wetland
Earth Share
01 ,10 TI CIt."U` , mitigation program of the Army Corps of Engineers.
Re: Cedar Fork Creek Mitigation Site, Corps Action SAW-2009-01917 10/20/09
State Riparian Buffer Protection Rules
The Tar-Pamlico, Neuse and Catawba River basins all have rules requiring the protection of or
mitigation for impact to riparian buffers. The purpose of these rules is "to protect and preserve
existing riparian buffers ...to maintain their nutrient [pollutant] removal functions," therefore any
mitigation for impact to riparian buffers must include mitigation for the lost nutrient
removal function (15A NCAC 2B.0233,15A NCAC 02B .0259, 15A NCAC 02B.0243)
Under these rules, impacts to buffers that require mitigation can be fulfilled via three
alternatives:
1) Payment of compensatory mitigation fee to Riparian Buffer Restoration Fund
2) Donation of real property, where buffers can be restored
3) Restoration or enhancement of a non-forested riparian buffer
The buffer mitigation must take place the same distance from or closer to the estuary or river as
the impact and as close to the location of the impact as feasible.
Federally-based Stream and Wetland Protection Rules
The objective of the Clean Water Act, and delegation of action to the States, is "to restore and
maintain the chemical, physical, and biological integrity of waters of the United States."
Pursuant to that objective, for unavoidable stream and wetland impacts, DWQ requires
compensatory mitigation at a minimum of 1:1 ratio for losses of streams and wetlands (for both
404 jurisdictional wetlands as well as isolated wetlands) (15A NCAC 2H .0506(h)). Stream
mitigation for 401/404 impacts requires a minimum 50-foot buffer to assure stream bank
stabilization; this buffer is a required component of 404/401 stream mitigation which
compensates for the loss of nutrient removal function due to the stream or wetland impacts
associated with the project requiring the subject mitigation. Compensatory mitigation can be
achieved via:
1) Project-specific mitigation
2) Mitigation banks
3) In-lieu fee mitigation via EEP
State Nutrient Sensitive Waters Management Strategy & Nutrient Offset Payments
The Tar-Pamlico and Neuse Basins' Nutrient Sensitive Waters Management Strategies both
allow dischargers to provide payment in-leiu of nutrient offsets that cannot be reasonably
accommodated on-site. The nutrient offset in-lieu fee program (NOP) provides both the
private and public sectors opportunities to "purchase" nutrient mitigation to assist them in
meeting compensatory nitrogen- or phosphorus-mitigation requirements for new construction. In
the Neuse basin the NOP is also utilized to offset nutrient impacts from the point-sources. Once
fees are received, the North Carolina Ecosystem Enhancement Program (NCEEP) or private
mitigation bank assumes the responsibility for conducting the required mitigation.
Page 2 of 4
Re: Cedar Fork Creek Mitigation Site, Corps Action SAW-2009-01917 10/20/09
Internal Conflict and Violation of Intent
In January, 2007, DWQ released a buffer interpretation clarification memo relating to stream
restoration and buffer mitigation. This memo has allowed for riparian buffer credit to be
generated from stream mitigation projects. The rationale behind this policy by DWQ is that
stream mitigation and buffer mitigation programs are requirements under two separate laws
(federal clean water act and state buffer law). However, the mitigation of stream impacts (with
associated buffer impacts) requires mitigation of the stream channel and a minimum 50-foot
buffer, so the "credit" generated here includes the buffer. Therefore, if the state or a private
bank utilizes previous stream mitigation projects to generate the buffer credits, an
environmental deficit is created, generating two credits of nutrient removal function from a
single improvement to that function. This scenario results in a net loss of riparian buffer acreage
and function, violating the intent of the rules outlined above and cheating the public out of the
water quality benefit they promise.
Conflicts Already Underway
According to our information, in November of 2008, private mitigation bankers
Environmental Bank and Exchange (EBX) were given approval to derive greater than
250,000 pounds of nutrient offsets from a previous DOT compensatory mitigation project
approved by the Corps. As we understand the situation, the DOT mitigation project completed
by EBX utilized the entire project to fulfill compensatory mitigation for DOT wetland and
stream impacts under a mitigation bank approved by the Army Corps of Engineers; the action by
DWQ to then release nutrient offset credits from that same site is certainly re-crediting of the
same ecological and nutrient removal function `credited' by the Army Corps without the
consultation or notification of the same.
Specifically, the acreage comprising the original "EBX Neu-Con Umbrella Wetland Mitigation
and Stream Restoration Bank" (Neu-Con Bank) restored in or about 2002 with NCDOT funds
designated specifically for compensatory mitigation for unavoidable wetland and stream impacts.
Now, we understand that the Department of Water Quality has approved the use of portions of
this same site for Nutrient and Buffer Mitigation Credit under the auspices of the EBX Neuse
Riparian Buffer Umbrella Mitigation Bank (Buffer Bank). By providing additional offset credits
where no additional offsets were generated, a substantial environmental debt has been
created.
The division's explanation, provided via email, was this:
Environmental Bank and Exchange has three sites that were constructed as stream
and wetland mitigation sites for NCDOT. These sites were constructed between
four and six years ago, and their contractual obligation to DOT was settled. EBX
owns the sites. EBX has submitted a Prospectus and Mitigation Banking
Instrument to operate an Umbrella Bank for buffer and nutrient offset credits at
these sites. Neuse riparian buffer credit will be generated within the first 50 feet
of buffer along the restored streams. From 51 - 200 feet, nutrient offset credit will
Page 3 of 4
Re: Cedar Fork Creek Mitigation Site, Corps Action SAW-2009-01917 10/20/09
be generated. There is no "double-dipping", as it has been decided previously that
404/401 relate to federal regulations, while the riparian buffer and nutrient offset
programs are state programs.
DWQ's policy of re-crediting the same buffer acreage and nutrient removal function
already allotted to existing federal offset credits results in net degradation of water quality
and discredits the intent and effect of the Army Corps stream and wetlands mitigation
program.
In summary, the Neuse RIVERKEEPER® Foundation is extremely concerned that N.C. State
policies create an environmental debt where new impacts to water quality occur without any new
corresponding mitigation being performed, and we request that the Army Corps of Engineers
evaluate and approve projects within the State, including the Cedar Fork Creek Mitigation
Site, in a way that ensures Federal laws are not subverted by short-sighted and poorly
designed State policies. Furthermore, we respectfully request that the Army Corps of Engineers
include in their approval the condition that upon inclusion in the City of Raleigh's Corps-
approved umbrella mitigation bank the subject acreage is no longer available for inclusion in any
State or local nutrient and/or buffer mitigation umbrella bank. It is vital for the maintenance of
the chemical, physical, and biological integrity of waters of the United States that we ensure
mitigation of a single ecological function results in off-set credits for only that single function.
I would be happy to arrange a time to discuss this matter in person should you require further
explanation. Please do not hesitate to contact me with any questions you may have.
Sincerely,
Alissa Bierma
Upper Neuse RIVERKEEPER"'
Neuse RIVERKEEPER"Foundation
Cc:
Kenny Waldroup (CORPUD)
Hazen and Sawyer
Axiom Environmental, Inc.
Colleen Sullins (NCDWQ)
Pete Peterson (EMC WQC)
Page 4 of 4
Southeast Regional Office
263 13t' Avenue South
St. Petersburg, Florida 33701-5505
[phone]; FAX [phone]
http://sero.nmfs.noaa.gov/
November 17, 2009
Sent via Electronic Mail)
Colonel Jefferson Ryscavage
District Engineer, Wilmington District
Department of the Army, Corps of Engineers
Regulatory Division
P.O. Box 1890
Wilmington, North Carolina 28402-1890
NOAA's National Marine Fisheries Service (NMFS) reviewed the projects described in the
public notice(s) listed below.
Based on the information in the public notice(s), the proposed project(s) would NOT occur in the
vicinity of essential fish habitat (EFH) designated by the South Atlantic Fishery Management
Council or NMFS. Present staffing levels preclude further analysis of the proposed activities and
no further action is planned. This position is neither supportive of nor in opposition to
authorization of the proposed work.
NOTICE NO. APPLICANT NOTICE DATE DUE DATE
2009-01917 City of Raleigh October, 20, 2009 November 19, 2009
Please note these comments do not satisfy your consultation responsibilities under section 7 of
the Endangered Species Act of 1973, as amended. If the activity "may effect" listed species or
critical habitat that are under the purview of NMFS, consultation should be initiated with our
Protected Resources Division at the letterhead address.
Sincerely,
Pace Wilber (for)
Miles M. Croom
Assistant Regional Administrator
Habitat Conservation Division
REYNOLDS
& JEWELL
Landscape Architecture
218 Snow Avenue
Raleigh, NC 27603
November 2, 2009
Telephone
919.821.5074 Corps of Engineers, Wilmington District
Fax Attention: Mr. Monte Matthews
919.821.5139 Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
Re: Corps Action ID: SAW-2009-01917
Dear Mr. Matthews:
RECEIVED
'Nov 05 2009
Regu/,tort' Branch
I am the owner of a parcel of land in the above referenced project.
My parcel is part of the UT4 area which has .5 acre riparian wetland
preservation and 610 linear feet of perennial stream preservation.
I currently have my property listed for sale, and as part of this sale was
planning to subdivide up to two extra lots out of my acreage. This
would require a driveway crossing over the perennial stream identified
in the study.
My question is: how does this affect any action the Corps or the City
would take on the property.
Thank you for your consideration.
Si
am Reel
G1 Lt
Q.

® North Carolina Wildlife Resources Commission
Gordon Myers, Executive Director
MEMORANDUM
TO: Monte Matthews, Raleigh Regulatory Field Office
U.S. Army Corps of Engineers
FROM: Shari L. Bryant, Piedmont Region Coordinator
Habitat Conservation Program
DATE: 19 November 2009
SUBJECT: Public Notice for Cedar Fork Creek Mitigation Site, City of Raleigh Umbrella Mitigation
Bank, Wake County, North Carolina. Corps Action ID: SAW-2009-01917
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) have reviewed the
subj ect public notice 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.).
The City of Raleigh proposes to include the Cedar Fork Creek Mitigation Site in its umbrella
mitigation bank. According to the Mitigation Plan, the site includes 24 parcels and is approximately 205
acres. There are 110 acres of wetlands and 9,550 linear feet of Cedar Fork Creek and its tributaries located
on the site. The applicant proposes preservation of 9,100 linear feet of stream channel and 110 acres of
wetlands, and restoration of 450 linear feet of stream channel. Also, a 100-foot riparian buffer adjacent to
Cedar Fork Creek and a 50-foot riparian buffer adjacent to tributaries, wetlands, and ponds will be
established. A permanent conservation easement, to be conveyed to an appropriatc land trust organization,
will include all mitigation activities. The proposed mitigation ratio is 5:1 for both stream and wetland
preservation, and 1:1 for stream restoration. Up to 2,270 stream credits and 22 wetland credits will be
available. The goal is to remove a threat and prevent decline of aquatic resources on a watershed scale by
protecting water quality, maintaining a forested buffer, promoting flood attenuation, and improving aquatic
and terrestrial wildlife habitat.
Cedar Fork Creek and eight unnamed tributaries to Cedar Fork Creek flow through the mitigation
site. Cedar Fork Creek is a tributary to Little River in the Neuse River basin. There are records for the
federal and state endangered dwarf wedgemussel (Alasmidonta heterodon), the federal species of concern
and state endangered Atlantic pigtoe (Fusconaia masoni) and green floater (Lasmigona subvirdis), the state
threatened least brook lamprey (Lampetra aepyptera), and the state special concern Neuse River waterdog
(Nectairus lewisi) in Little River. The mitigation site includes hardwood forest, agriculture, pasture, and
residential. Forested wetlands, emergent wetlands, and open water are found in the floodplain. The site is
located immediately adjacent to and upstream of the proposed reservoir.
Mailing Address: Division of Inland Fisheries • 1721 Mail Service Center • Raleigh, NC 27699-1721
Telephone: [phone] • Fax: [phone]
Page 2
19 November 2009
Cedar Fork Creek Mitigation Site
Corps Action ID: SAW-2009-01917
Although we have no objections to the inclusion of this site into the umbrella mitigation bank, we
offer the following comments.
The Mitigation Plan (p.2) states "...due to the presence of rare species in the Little River, this
watershed should be targeted for land acquisition to protect the riparian area beyond the 50-foot
required buffer." We agree that protecting additional riparian buffer areas will provide benefits
to aquatic and terrestrial wildlife resources. However, if the reservoir is constructed, protection
of riparian areas upstream of the proposed reservoir will have limited, if any, benefits to rare
species in Little River. We continue to encourage the City of Raleigh to look for and include
sites in the umbrella mitigation bank downstream of the proposed reservoir to provide
additional protection for rare and sensitive species.
At this time, we feel the Cedar Fork Creek Mitigation Site would be suitable mitigation for the
proposed Little River Reservoir project. However, as additional sites are evaluated and
anticipated to be used as mitigation for the proposed Little River Reservoir project, attention
needs to be paid to ensuring the mitigation is comparable to the streams and wetlands that will
be impacted by construction of the reservoir (e.g., first order stream impacts mitigated with first
order stream restoration, enhancement and/or preservation).
Thank you for the opportunity to review and comment on this mitigation site. If we can be of further
assistance, please contact our office at [phone].
cc: John Ellis, USFWS
Becky Fox, USEPA
Eric Kulz, DWQ
Vann Stancil, WRC