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Home My WebLink About20140356 Ver 1_Emails_20140221i Cranford, Chuck From: Burdette, Jennifer Sent: Friday, February 21, 2014 2:08 PM To: Fox, Tim; Cranford, Chuck Subject: Quartz Corp Preservation FYI - - - -- Original Message ----- From: Tugwell, Todd SAW [ mailto :Todd.Tugwell @usace.army.mil] Sent: Friday, February 21, 2014 9:28 AM To: Lynnette Batt Cc: McCormick, Tasha L SAW; Crumbiey, Tyler SAW;, Kulz, Eric; Burdette, Jennifer a Subject: RE: [EXTERNAL] technical questions on proposed Beaver Creek project (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Lynnette, I spoke with Tasha yesterday and coordinated the below response with her. We also spoke with Eric Kulz and Jennifer Burdette at DWR, and I have copied them on this email. At the end of this email are some responses to your questions, but please keep in mind that these are verygeneral responses and this in no way implies that the mitigation proposal is acceptable - that approval is part of the permit decision. I think it is worth reiterating what you mention below, that in general we do not prefer to see preservation -only approaches to mitigation. This is different from approving preservation -only banks or ILF sites, because in this case we would be approving the use of exclusively preservation to offset a proposed impact. When we approve a bank, we are agreeingthatthe activity is appropriate to provide mitigation credits, but we are not approving the use ofthose credits for a particular impact, and the PM who later issues a permit may require that only a portion of the credits come from the preservation bank and that additional credits are obtained from another restoration or enhancement -based activity. I know you also mentioned the fact that EEP has several HOP sites near the project, but the way that HOP credits are applied to EEP mitigation requirements is such that they only cover half of the mitigation requirement for any particular impact (the remainder to be made up from credits generated through restoration activities when the become available). Having looked overthe information you submitted, I think my concerns are mainlywith the threats to the proposed mitigation site. I don't believe that the possible use of the site for water bottling or a reservoir should be considered unless there is actually a proposal in place for such a use that would affect the resource. Likewise, use of the site fora residential development, which assumes the WS -1 classification will be changed, is not really a realistic threat, Logging certainly can be expected in parts of the watershed that are not protected by deed restrictions or covenants that the Town of Spruce Pine has put on the stream buffers, but this really is a temporal threat that applies state -wide. I believe the intent of demonstrating that "resources are underthreat of destruction or adverse modification" is really intended to apply to specific threats rather than just those activities that may occur on site. Lastly, I believe that we generallytry to achieve some level of functional replacementfor impacts, which is not provided by preservation. The Federal Mitigation Rule states that "where preservation is used to provide compensatory mitigation, to the extent appropriate and practicable the preservation shall be done in conjunction with aquatic resource restoration, establishment, and /or enhancement activities ". It seems that if the applicant has the opportunity to conduct restoration or enhancement, or to purchase credits generated through these forms of mitigation, it could be coupled with the preservation to provide an acceptable mitigation alternative. It's also worth noting that the mitigation rule establishes a preference for banks and ILF programs over permittee - responsible mitigation (though this preference is dependent on a number of variables). The state law may also require a similar preference, but that needs to be determined by DENR. With regard to the specific questions you bring up, I've provided some responses below: 1. When approving an easement holder, the main thing I think we are looking for is a evidence that the proposed easement holder has the intention of monitoring the site and enforcing the easement restrictions in to perpetuity. This is why we have a preference for organizations that are non - profit and whose mission is centered around land conservation. We also would like to see evidence that the entity will be around in the future to do this job, which is why we generally want to see some sort of endowment. We have allowed municipalities to be easement holders in the past, and I don't really see a problem with a town like Spruce Pine holding the easement. In fact, I think they would be heavily vested in ensuring that the watershed is protected, and also likely to be around for a long time, so I think they would be a very good easement holder from this standpoint. 2. Endowment- We don't have a specific requirement that the easement holder absolutely must have an endowment, but I have a concern that the long -term costs of monitoring and enforcing the easement provisions would be borne by the Spruce Pine taxpayers if an endowment or some other funding were not put in place, I don't think it's appropriate for taxpayers to pay for any portion of the applicant's compensatory mitigation. If the Town could justify that the overall benefit of the mitigation project to the taxpayer would be greater than the financial burden of taking on the monitoring and easement enforcement, then perhaps an endowment would not be required. Regardless, we would still like to have an opportunity to review the procedures that the town proposes to use to monitor and maintain the easement. 3. Financial assurances - For mitigation banks financial assurances for construction and monitoring for the purposes of meeting performance standards are generally not required for preservation -only activities due to the fact that these activities are not required. Instead, credits are not released until certain activities are complete (e.g., site is secured, easement is recorded, long -term endowment funding is complete, etc.), and then once those activities are accomplished, %100 percent of credits are available. However, for permittee - responsible mitigation, this might be different since there is really no credit release schedule. Instead, conditions would typically be put on the permit that established what activities are necessary. If there were some delay for any of these requirements (e.g., there was going to be a delay in securing the site through easement or purchase), financial assurances may still be required to ensure that necessary mitigation would still be conducted, especially if the applicant wants to start construction in jurisdictional areas immediately. This would be very dependent on how the mitigation would be carried out and what the timeline ends up being. 4. Monitoring - As I mentioned above, we would want to see what the Town proposed to do in the way of monitoring. This would probably come in the form of a letter from the Town, rather than from the applicant, since the Town is not the permit applicant, I think what you have described is generally what we would be looking for. The main issue is making sure there are no encroachments or other violations of easement requirements. I don't think we can make a judgment on this until we see something from the Town. 5. Survey method -This may not really be up to us since there is a requirement for the easement to be recorded. My guess is that we would defer to the requirements of the county as to what the minimum standard is to have an easement recorded, and to the surveyor's willingness to sign and seal a survey. That said, if we are to sign a map with jurisdictional boundaries on it, we want the points to have sub -meter accuracy, so what you describe would not be appropriate. Also, in my experience, surveyors have not been willing to seal a survey unless the data is pretty accurate. The need to have an accurate survey would also be consistent with other mitigation providers, where we have required that easement boundaries are surveyed. 30 feet may not seem like a lot relative to a 300 foot wide easement, but if a logger comes in and takes several mature trees in an area immediately adjacent to the easement, this could lead to an expensive legal contest that would rely on a good survey. Finally, keep in mind that the easement would have to have to be well- marked with appropriate signage regardless of how it is surveyed. I hope this answers your questions. Please let me know if you would like to discuss more or have other questions. Thanks, Todd Tugwell Special Projects Manager Wilmington District, US Army Corps of Engineers 11405 Falls of the Neuse Road Wake Forest, NC 27587 Office: 919 - 846 -2564 Mobile: 919- 710 -0240 - - - -- Original Message---- - From: Tugwell, Todd SAW - Sent: Tuesday, February 18, 2014 2:53 PM To: 'Lynnette Batt'; McCormick, Tasha L SAW Subject: RE: [EXTERNAL] technical questions on proposed Beaver Creek project (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Lynnette, I've taken a look at the info in the email. Before giving you a response, I want to catch up with Tasha and talk with her about the project (both the mitigation and impact site) so that we can provide consistent answers to your questions. I was not able to get up with Tasha today, but hope to by the end of the week. I'll be back in touch soon. Thanks, Todd Tugwell Special Projects Manager Wilmington District, US Army Corps of Engineers 11405 Falls of the Neuse Road - Wake Forest, NC 27587 Office: 919 - 846 -2564 Mobile: 919- 710 -0240 - - - -- Original Message-- - From: Lynnette Batt [ mailto :lbatt @uniqueplacesllc.com) Sent: Friday, February 14, 2014 2:07 PM To: Tugwell, Todd SAW; McCormick, Tasha LSAW Subject: [EXTERNAL] technical questions on proposed Beaver Creek project Todd and Tasha: Todd, I just left you a voicemail, but I'll also write an introductory email and we can catch up by phone when you have a chance. - I had a meeting with Tasha and Amanda Fuemmeler last week to discuss a mitigation project that we are proposing in the Spruce Pine /Yellow Mountain area (North Toe River headwaters /French Broad). We (Unique Places) are working with Quartz Corp to provide the mitigation for impacts they plan to have within an existing mining site, which will require an Individual Permit. Tasha as the District Engineer will review the mitigation plan /proposal; however, she asked that I pose technical questions to the both of you. We plan to submit a draft mitigation plan in the next several weeks: I'm sure it would be helpful for you to have some background on the project to provide technical guidance, so attached is a brief summary. In short, we are proposing to put under easement pristine condition, coldwater trout streams in an ecologically- significant and unique watershed (Beaver Creek), taking a watershed approach that extends to the headwaters and seeps, This watershed supplies the primary drinking water reservoir for the Town of Spruce Pine, and is a WS- I /HQW. We recognize and understand the Corps' concerns about an all- preservation approach. We believe that an all - preservation approach in this case is justified for several reasons, as outlined In the IRT's 2012 Stream Preservation guidance (which in turn is based on the 2008 Federal rule). The second page of the attached document outlines this justification. Amanda and Tasha brought up some concerns in our meeting, which we will address in the draft mitigation plan. The technical questions I have for you both are as follows: 1. Easement holder approval -The Town of Spruce Pine is very supportive of this project given that it provides a higher degree of protection for their reservoir. They would like to hold the easement and have the means and vested interest to do so. What information do you need, if any, to approve them as an easement holder? 2. Endowment - The Town has the means to do the yearly monitoring and maintenance, and to uphold the easement in perpetuity. They have not indicated need for an endowment. Would an endowment be required by the Corps? 3. Financial assurances - It is my understanding from past discussions with Todd that financial assurances would not be required for a preservation -based project, given that the primary action is the recordation of the conservation easement. Is this correct? 4. Monitoring- Because the action is preservation, we propose providing baseline data on fish, benthos, salamanders and other species, natural communities, and photo documentation of the site. We do not propose a 7 -year active phase monitoring period, as no active work is proposed. Upon approval of the final mitigation plan, the easement would be recorded and transferred to the long -term easement holder (Town of Spruce Pine), and yearly physical /visual monitoring would proceed immediately. The Town would maintain records of the yearly inspection report, including photo documentation of the site and any areas of concern. Do you feel this would suffice for monitoring of an all - preservation project? Would there be any additional long -term maintenance requirements beyond the yearly (or as needed) inspection and upholding the terms of the easement? 5. Survey method -To determine, stream locations and lengths, we propose using handheld GIS data and topographic LIDAR data. With this method we would get a 30' or better (and likely much better) accuracy, according to our surveyor Because we are A) providing mitigation for permitted impacts and not generating credits to sell, as with a bank, B) protecting streams within a large, remote area (likely 10 -20K feet of stream), and C) will have wide (likely 300') buffer widths, we feel this is an appropriate level of effort for this project. Please let me know your thoughts on this. Thank you in advance for your help and guidance on this project. Again, Todd, let's try to catchup by phone when you have a chance. Lynnette Lynnette Batt Unique Places LLC PO Box 52357 Durham, NC 27717 (919) 599 -3549 Ibatt @uniqueplacesllc.com I uniqueplacesllc,com Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE