20040425 Ver 1_USFWS Comments_20040203

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United ~tates Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box S3726
Raleigh. Nonh Carolina 276S6-S'726

January 30, 2004

Mr. MickeyT. Sugg
U. S. Army Corps of Engineers
Wilmington Regulatory Field Office
P. O. Box 1890
Wilmington, North Carolina 28402-1890

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Subject: Wetland Mitigation Plan, Phase II Barra Farms Cape Fear Regional Mitigation Bank

Dear Mr. Sugg:

This letter provides the comments ofthe U. S. Fish and Wildlife Service (Service) on the updated
Wetland Mitigation Plan for Phase II ofthe Barra Farms Cape Fear Regional Mitigation Bank,
dated December 2003, in Cumberland County, North Carolina, anQ proposed amendments to the
Mitigation Banking Instrument (MBI). The bank sponsor, ECOBANK of Winter Park, Florida,
submitted the original Phase II plan and proposed MBI amendments to the Wilmington District
of the U. S. Army Corps of Engineers (Corps) by coverletterdated.September 19, 2002. The
Service attended a preliminarY meeting of the Mitigation Bank Review Team (MBRT) and site
visit on December 10, 2002. Another site visit was made on May 22, 2003. These comments are
submitted in accordance with the Fish and Wildlife Coordination Act (48 Stat. 401, as amended;
16 D.S.C. 661-667d), and section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531-1543).

The cover letter from ECOBANK to you; dated December 15,2003, notes eight sections of the
mitigation plan that have been revised. The Service has reviewed these aspects of the revised
plan and offers the following comments.

The Service is pleased that the Geographic Service Area (GSA) will be the same as that for Phase
I (pp. 13-14). The proposed site preparation and grading of the site (pp. 18-19, Figure 11)
appear adequate for the restoration effort.

Regarding vegetation goals for restoring wetlands, the Service seeks to ensure plant communities
consisting of diverse plant species, primarily among potential canopy trees, that would provide
maximum wildlife habitat values. Last year the Service participated in informal discussions on
this important aspect of any restoration effort. Bye-mail to you in June 2003, Howard Hall of
my staff outlined his ideas for vegetative success criteria. Overall, vegetative success requires
objective and verifiable standards in four areas which are: (1) absolute abundance (stems/acre) of
preferred species; (2) relative abundance (preferred vs. non-preferred species); (3) diversity of
preferred species; and, (4) meeting the criteria of "hydrophytic vegetation" as defined in the 1989
Federal Manual for Identifying and Delineating Jurisdictional Wetlands.

2

Regarding absolute abundance, the current plan divides species, presumably woody species into
planted and volunteer. Vegetative success requires 320 planted trees per acre (tpa) after three
years and 260 tpa after five years. The Service supports these standards of absolute abundance.
However, this criterion has a footnote which states that some volunteer species can be counted
toward these tree densities, but indicates that the volunteer species to be included would require
the concurrence of the MBRT. We continue to believe that this criterion could be simplified by
designating the woody plants sought in the mature community as preferred, target, or desirable
species. All woody plants could be conveniently divided into preferred and non-preferred
species. Some of the preferred species could be planted and others could recolonize the site from
adjacent seed banks. There would be no need for additional discussions of which volunteers to
count toward the achievement ofthe required absolute abundance. Volunteer plants of preferred
species would automatically count toward the absolute abundance requirement.

Regarding relative abundance, the current plant states (p. 23) that no single volunteer species
(most notably, red maple, loblolly pine, and sweet gum) will comprise more than 50% of the total
composition at Year 2 or 3. If this occurs, remedial procedures/protocols outlined in the
contingency plan would be implemented. During Years 4 and 5, no single volunteer species,
comprising over 50% of the total composition, may be more than half the height ofthe planted
trees. If this occurs, remedial procedures outlined in the contingency plan would be
implemented. The Service has concerns about these standards for relative abundance. First, in
the proposed dichotomy of planted versus volunteer species, some volunteer species could be
added (as the restoration progresses) to those planted in the measure of absolute abundance.
Such a change in classification could complicate the measure of successful relative abundance.
Second, by considering the percentage of each non-desirable volunteer species separately, there is
a possibility that such non-desirable plants, in aggregate, could dominate the site while still
meeting the proposed measure of successful restoration. It is possible that the three major
invaders could each constitute 30% of trees on the site (for a total of 90%) with all planted
species representing only 10%. Third, it is unclear how the relative abundance criterion for
Years 4 and 5 would be applied. By this time several age classes of an undesirable volunteer
species could be present on the site. The earliest colonizers may more than twice the height of
planted trees while later colonizers would be smaller. There should be a clear statement of how
field data would be applied to trigger remedial action in this case.

As we have stated previously, the Service prefers a criterion for relative abundance that simply
compares the percentage of all preferred plants with that of all non-preferred plants. While a
consideration of the size of non-preferred species relates to the potential adverse impact of
shading, other adverse impacts are possible. Large number of non-preferred plants can influence
nutrients and water available to preferred species. We believe that success for relative abundance
should be a simple statement of the proportion of preferred versus non-preferred plants. The best
statement ofthis criterion would be a minimum percentage of all preferred species among all
woody plants rather than a maximum percentage for undesirable species. With restoration efforts
starting with cleared land, such as this case, the preferred species would have the maximum
opportunity to survive and form the future climax community if the stems of all preferred species
should constitute 80% - 50% of all woody stems on the site.

3

Regarding diversity of preferred species, the current plan states (p. 23) that if, within the first
three years, any species exhibits more than 50% mortality, either the species will be replanted or
an acceptable replacement species planted in its place as specified in the contingency plan. This
criterion is a positive step toward ensuring the species diversity of the restored plant community.
However, we retain some concerns about the issue of creating condition for a diversity plant
community. First, this standard reinforces our desire for establishing a list of preferred species
early in the restoration process. Any replacement species could be drawn from this list rather
than initiating new discussion to determine an acceptable replacement species. Second, there is
no stated survival criterion for any species that are replanted or new species started on the site.
The current plan requires no action ifthe trees planted in the third year fail again or trees of a
replacement species fail. Third, there is no measure of species diversity for the end of
monitoring and the final release of credits. The criterion for the diversity of desired species
should not end after only three years of a five-year monitoring program. The current plan
requires no action if a given species experiences 45% mortality at the end ofthe third and goes
on to completely disappear from the site by the end ofthe fifth year.

The Service believes the establishment of a target natural community requires that the species
sought in that community should survive on site for at least five years before final vegetative
restoration can even be assumed. As with the criterion for absolute abundance for final
vegetative success (260 tpa), there should be a requirement for species diversity for the final
release of credits. Extensive re-planting or the planting of a replacement species should require
the establishment of a new vegetative baseline, i.e., trees planted at the end of the third year
would be subject to a new time line identical to that started at the initial planting. Some, or all,
of the credits originally scheduled for release in Years 4 and 5 would need to be held until the
new plants showed evidence of successful establishment.

The Service is concerned about the qualifier used for the planting regime. The footnote for Table
3 of the December plan states that ". . . final species composition dependent upon nursery quality
and availability at the time of plant ordering." This qualifier essentially means that the species to
be planted are completely unknown. With careful planning such a qualifier should not be
necessary. The Service strongly prefers tree stocks of local genetic stock and we believe that
proper planning can ensure that the desired species are available in the needed quantities.
Nurseries normally operate on an annual cycle and trees to be planted in late winter or early
spring must be ordered in the spring of the preceding years. Bank sponsors should follow this
planning schedule and not be dependent on supplies that may be available several months before
actual planting. Exceptions to a stated planting regime should only be considered when a nursery
fails to deliver the desired species and/or quantities after a valid and timely order was accepted
by the nursery. We believe that the actual species composition is an important aspect of
restoration that should not be relegated to a footnote. We request that this aspect of the
mitigation be fully discussed in the mitigation plan and include: (1) the screening procedures for
nurseries; (2) the criteria for selecting a nursery; (3) the timing of order placement in relation to
actual planting time; and, (4) contingencies, included alternative species, to be used if the
selected nursery fails to deliver the species ordered and/or the required quantities.

4

With regard to the final aspect of vegetative success, we continue to believe that final success
should require that the overall plant community meets the criteria of "hydrophytic vegetation" as
defined in the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands. It
could be argued that, by definition, a jurisdictional wetland has been lost - thus the requirement
for compensation, and the wetland lost should be replaced with a jurisdictional wetland. Also,
the criteria for hydrologic success appear based on achieving jurisdictional status, so it seems
logical that plants should have the same requirement since to achieve overall jurisdictional status,
an area must meet both the hydrologic and vegetative standards.

The revises plan notes (p. 24) that 181 permanent, vegetation monitoring plots (equivalent to 2%
of the restored wetland area) will be established. These plots will be located via stratified
random sampling. Shallow groundwater hydrology will be monitored via 24 automated wells
located within the restoration and enhancement areas (p. 24). In addition, three permanent
reference wells will be installed within the preservation area in the northern portion of the
mitigation site (p. 25). Based on current information, these aspects of project monitoring are
adequate.

The Service is pleased with the expanded discussion of contingency measures (pp. 26-27). We
strongly support the plan for evaluating restoration deficiencies in terms of causative factors in
order to identify appropriate contingency measures.

Section 8 and Tables 4 and 5 of the plan discuss the generation of credits and the credit release
schedule. The credits to be created seem appropriate. The credit release schedule appears to
represent a shift toward the release of more credits earlier in the restoration effort. The schedule
established at the interagency meeting of April 27, 1999, called for the release of 15% of all
credits after approval of the Mitigation Banking Instrument (MBI) and the restoration and
monitoring plan and 10% of credits at the end of Year 1. The current plan allows the release of
40% of all credits by the end of Year 1, an additional 15% of all credits. With continued success,
the older schedule allows the release of 10%, 10%, 15%, and 15% of credits after Years 2, 3, 4,
and 5, respectively. A final 25% of credits are reserved for final approval of the restoration
effort. These credits could be released at the end of the fifth year if the restoration plan had been
successfully implemented. The current plan allows the cumulative release of 80% of credits by
the end of the fourth year, leaving 20% (rather than 40%) for the fifth year and final
determination of success. The 1999 release schedule is being used for a commercial bank under
development in Onslow County. The MBRT should discuss whether a fundamental policy
change has occurred in the release schedule for all banks or the schedule for this bank represents
a site-specific release schedule. The Service supports a standard credit release schedule that
would be used by all commercial mitigation banks.

The Service is pleased that the plan discusses (Section IX) the final property dispensation. The
bank sponsor has been working with the Sandhills Area Land Trust for the fee simple transfer of
the bank site. At this time, the Service supports the proposed dispensation.

5

The Service has reviewed Appendix G related to federally listed species that might occur in the
vicinity of the project. The Service is pleased that records ofthe North Carolina Natural Heritage
Program were examined. This search indicated that no records of federal- or state-listed species
were found within a one-mile radius of the project site. The report concludes that the proposed
mitigation project would not adversely affect federally protected species. Based on the
information contained in this report, the Service concurs with the determinations provided.
However, we reserve the right to reconsider the concurrence if: (1) new information reveals
impacts ofthis identified action that may affect listed species or critical habitat in a manner not
previously considered; (2) this action is subsequently modified in a manner that was not
considered in this review; or, (3) a new species is listed or critical habitat determined that may be
affected by the identified action.

Overall, the Service supports the restoration, enhancement, and preservation efforts of the Barra
Farms Phase II mitigation effort. However, as with any complex restoration effort, we are
concerned that unforeseen conditions could cause the effort to fall short of its stated goals.
Mitigation efforts seek to replace fully functioning, natural wetlands that have been lost forever.
This goal of replacement requires the most stringent safeguards to ensure that the approved
mitigation plan achieves, within acceptable margins of error, its objectives. These safeguards
include careful attention to vegetative and hydrologic restoration along with sufficient incentives,
including the delay in the sale of significant bank credits, for bank sponsors to make any
necessary mid-course corrections in their plans.

We appreciate the opportunity to provide these comment and welcome the opportunity to discuss
these issues with you, other members of the MBRT, and the bank sponsors. Please advise us of
activities ofthe MBRT for this project. If you have questions regarding these comments, please
contact Howard Hall at 919-856-4520, ext. 27 or bye-mail at < howard [e-mail] >.

Sincerely,

~p~~

Garland B. Pardue, Ph.D.
Ecological Services Supervisor

cc:

John Dorney, NC Division of Water Quality, Raleigh, NC
Bennett Wynne, NC Wildlife Resources Commission, Kinston, NC
Rebecca Fox, USEP A, Whittier, NC
Alan Fickett, Ecobank, Winter Park, FL
Rob Maul, Land Management Group, Inc. Wilmington, NC