HomeMy WebLinkAboutDWR Response to DMS Jordan Project Review_June2022DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1B816751E68
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
TO:
FROM
\f Qlui'i Na j
NORTH CAROLINA
Environmental Quality
June 7, 2022
Lindsay Crocker
Eastern Regional Supervisor — Division of Mitigation Services
Katie Merritt k 54t 6/7122
Nutrient Offset & Buffer Banking Coordinator
DSO/
r W
THROUGH: Paul Wojoski 6/10/2022
Supervisor - 401 & Buffer Permitting Branch
SUBJECT: DWR Response to DMS request to review four (4) projects submitted as "Legacy
Credits — Upper and Lower New Hope Cape Fear 02 Watershed"
On April 18, 2022, DWR received a memo along with attachments from the Division of Mitigation
Services (DMS) requesting DWR staff review the following projects for retroactive credits for buffer
mitigation credits and/or nutrient offset credits: Sandy Creek Site, Forest Hills Site, Little Beaver
Creek Site, Chapel Creek Site. All four (4) projects are located in either the Upper or Lower Sub -
watersheds of Jordan Lake. The memo requested DWR review these projects for retroactive credits
with the following considerations:
1) DWR consider the projects under the October 24, 2014 temporary buffer mitigation rules
because they were originally submitted for closeout during that timeframe;
2) DWR evaluate the project proposals for credit as submitted; and
3) DWR suggest alternative credit possibilities under the riparian buffer and nutrient offset
rules if there is disagreement on the credit approaches as presented by DMS
DWR's responses to the three (3) considerations above are summarized as follows:
1) DWR determined that none of the four projects could be reviewed under the October 24,
2014 Temporary Consolidate Buffer Mitigation Rule, but are subject to the Permanent
Consolidated Buffer Mitigation Rule (15A NCAC 02B .0295), effective November 1,
2015.
2) DWR evaluated the project proposals for buffer mitigation credits. The conclusions of
this evaluation are provided on pages 3-7.
3) DWR provided alternative credit possibilities under the permanent Consolidated Buffer
Mitigation Rule that would apply to each of the four projects.
D E Q ,�J North Carolina Department of Environmental Quality I Division of Water Resources
512 North Salisbury Street 1 1611 Mail Service Center I Raleigh, North Carolina 27699-1611
NORTHCof EnvlA 919.707.9000
Deparimem M Envlronmamal Dual
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
A summary of the results of DWR's findings for the request submitted by DMS above for each
project is provided on pages 3-7. For the purposes of this memo, the Temporary Consolidated Buffer
Mitigation Rule, 15A NCAC 02B .0295 effective October 24, 2014 will be referred to as "Temporary
Rule" and the Permanent Consolidated Buffer Mitigation Rule. 15A NCAC 02B .0295 effective
November 1, 2015 will be referred to as "Permanent Rule".
Page 2 of 9
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
A) DWR Review of Sandy Creek Stream and Wetland Restoration Site (DMS IMS ID# 322)
River
Feature
4Distance
Alternative
3Retroactive
Mitigation
5Mitigation
Basin/Credit
Type
from
Mitigation
Credit Type
Ratio/
Units/Credit
Service Area
stream
Type
% of Full
Credit
0-100,
'Preservation
Buffer only
3:1 @ 100%
TBD
Cape
Fear/Upper
Subject
New Hope
Urban
101-200'
'Preservation
TBD
Arm of Jordan
Stream
Buffer only
3:1 @ 33%
Lake
'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area
of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply
with this rule.
2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes
the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within
that riparian area.
s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting
options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive
crediting options.
a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks.
Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement.
'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and
(n) following the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset
Credits letter issued by the DWR including the most recent Project Credit Table Template provided online
Project Review Notes:
• Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent
Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5).
• Sewer line bisects the conservation easement at the Southwest end of the project.
Preservation Credits must be removed within 0-200' where the sewer line interrupts the
continuity of the top of bank and outer easement boundary.
• All credit types, including wetland and buffer, must be depicted on the credit asset map
submitted for this project. There can be no credit stacking of wetland credit and buffer credit
within the same footprint. Confirmation of no credit stacking shall be provided.
• A Project Credit Table and corresponding Figure showing Preservation credits proposed
under the Permanent Rule must be submitted.
Final Steps:
DMS can submit the Sandy Creek project for a final review of buffer mitigation credits per the
instructions provided on page 3. Once a final submittal has been provided to DWR, DMS will
receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for
this project. The draft asset map submitted by DMS with their proposal is attached for reference.
Page 3 of 9
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
B) DWR Review of Forest Hills Stream Restoration Site (DMS IMS ID# 139)
River
Feature
4Distance
Alternative
3Retroactive
Mitigation
5Mitigation
Basin/Credit
Type
from
Mitigation
Credit Type
Ratio/
Units/Credit
Service Area
stream
Type
% of Full
Credit
Cape
TOB-29'
'Preservation
Buffer only
3:1 @
TBD
Fear/Upper
Subject
75%
New Hope
Urban
Arm of Jordan
Stream
0-100,
'Preservation
Buffer only
3:1 @
TBD
Lake
100%
'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area
of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply
with this rule.
2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes
the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within
that riparian area.
s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting
options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive
crediting options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites.
a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks.
Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement.
'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and
(n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset
Credits letter issued by the DWR including the most recent Project Credit Table Template provided online
Project Review Notes:
• Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent
Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5).
• Sewer line is present within the conservation easement. Preservation Credits must be
removed within 0-200' where the sewer line interrupts the continuity of the top of bank and
outer easement boundary.
• Vegetation management zones need to be excluded from credits.
• Two stormwater outfall pipes /culverts create non -diffused flow through the buffer. The
footprint of the non -diffused flow needs to be clearly marked on a map and removed from
credit assets.
• The conservation easement appears to be at least 30' wide throughout the project and meets
the minimum width required, except at the southernmost easement boundary. Therefore,
even if preservation credits abut a vegetation management zone or sewer easement, all credits
can be proposed at 100% full credit except where the width is <30' and forested (not in
grass).
• A Project Credit Table and corresponding Figure showing Preservation credits proposed
under the Permanent Rule must be submitted.
Final Steps:
DMS can submit the Forrest Hills project for a final review of buffer mitigation credits per the
instructions provided on page 4. Once a final submittal has been provided to DWR, DMS will
receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for
this project. The draft asset map submitted by DMS with their proposal is attached for reference.
Page 4 of 9
r
I
i \
1
�I
1�E}1
y
i � j
•
elf,
{
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
C) DWR Review of Little Beaver Creek Stream and Wetland Restoration Site (DMS IMS ID# 221)
River
Feature
4Distance
Alternative
3Retroactive
Mitigation
5Mitigation
Basin/Credit
Type
from
Mitigation
Credit Type
Ratio/
Units/Credit
Service
stream
Type
% of Full
Area
Credit
Rural Non-
0-100'
'Preservation,
Buffer only
15:1 & 62:1
TBD
Cape
Subject
6Enhancement
@ 100%
Fear/Lower
Streams
101-200'
'Preservation,
Buffer only
15:1 & 62:1
TBD
New Hope
(if
6Enhancement
@ 33%
Arm of
applicable)
Jordan Lake
Rural
0-100,
'Preservation,
Buffer only
110:1 &
TBD
Subject
6Enhancement
62:1
Streams
@ 100%
101-200'
'Preservation,
Buffer only
110:1 &
TBD
6Enhancement
62:1
@ 33%
'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area
of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply
with this rule.
2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes
the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within
that riparian area.
s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting
options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 also does not allow retroactive
crediting options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites.
a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks.
Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement.
'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and
(n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset
Credits letter issued by the DWR including the most recent Project Credit Table Template provided online
'The area described as an Enhancement Site was assessed and determined to comply with all of 15A NCAC 02B .0295(o)(6).
Cattle exclusion fencing is required to be installed around the mitigation area to get buffer credit under this part of the
Project Review Notes:
• Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent
Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5) and 15A NCAC 02B .0295
(o)(6).
• Where maps depict pasture as pre-existing conditions and cattle fencing is installed, the
project area will qualify as Cattle Exclusion Enhancement per 15A NCAC 02B .0295 (o)(6).
If fencing will not be installed, these areas will qualify as Preservation per 15A NCAC
02B .0295 (o)(5).
• Where maps do not depict pasture as pre-existing conditions, project area will qualify as
Preservation per 15A NCAC 02B .0295 (o)(5) or (o)(4). Topographical maps included in the
mitigation plan do not depict Northern Drainage 1, Northern Drainage 2 or Southern
Tributary, which were to be restored using Priority 1 restoration according to the submitted
mitigation plan. Unless these three features are present on the NRCS Soil Survey, they will
be considered "Not Subject" and therefore will qualify as Preservation per 15A NCAC
02B .0295 (o)(4). Provide a NRCS Soil Survey showing the project boundary and these
Page 5 of 9
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
features to justify Preservation per .0295 (o)(4); otherwise, riparian areas will qualify as
Preservation per .0295 (o)(5).
• All credit types, including wetland and buffer, must be depicted on the credit asset maps
submitted for this project. There can be no credit stacking of wetland credit and buffer credit
within the same footprint. Confirmation of no credit stacking shall be provided.
• A Project Credit Table and corresponding Figure showing Cattle Exclusion Enhancement
credits and Preservation Credits must be submitted
Final Steps:
DMS can submit the Little Beaver Creek project for a final review of buffer mitigation credits per the
instructions provided on pages 5-6. Once a final submittal has been provided to DWR, DMS will
receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for this
project. The draft asset map submitted by DMS with their proposal is attached for reference.
Page 6 of 9
X
x REr �2
�: Uttte Beaver Creek
I M"
i
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
D) DWR Review of Chapel Creek Stream Restoration Site (DMS IMS ID# 77)
River
Feature
4Distance
Alternative
3Retroactive
Mitigation
5Mitigation
Basin/Credit
Type
from
Mitigation
Credit Type
Ratio/
Units/Credit
Service Area
stream
Type
% of Full
Credit
TOB-100'
'Preservation
Buffer only
3:1 @
TBD
Cape
100%
Fear/Upper
Subject
New Hope
Urban
101-200'
'Preservation
Buffer only
3:1 @
TBD
Arm of Jordan
Stream
33%
Lake
'The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent (25%) of the total area
of buffer mitigation per 15A NCAC 0295 (o)(4) and 15A NCAC 0295 (o)(5). Site cannot be a Preservation Only site to comply
with this rule.
2 All streams proposed for buffer mitigation must have a planted or uninterrupted conservation easement established that includes
the tops of channel banks when being measured perpendicular and landward from the banks, even if no credit is viable within
that riparian area.
s 15A NCAC 02B .0240 (c) governing nutrient offset credit projects prior to April 1, 2020 did not allow retroactive crediting
options. 15A NCAC 02B .0703 governing nutrient offset credit projects after April 1, 2020 does not allow retroactive crediting
options. 15A NCAC 02B .0295 (o) allows retroactive crediting for alternative mitigation sites.
a Crediting is only allowed where widths are secured with a conservation easement a minimum of 29' from top of stream banks.
Crediting is only allowed out to a maximum of 200' from top of stream bank where secured with a conservation easement.
'All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and
(n) following the guidance provided in the Clarified Procedures for CalculatinBuffer Mitigation Credits and Nutrient Offset
Credits letter issued by the DWR including the most recent Project Credit Table Template provided online
Project Review Notes:
• Project proposal is not subject to the Temporary Rule. Project is subject to the Permanent
Rule and will be reviewed under 15A NCAC 02B .0295 (o)(5).
• A Project Credit Table and corresponding Figure showing Preservation credits proposed
under the Permanent Rule must be submitted.
Final Steps:
DMS can submit the Chapel Creek project for a final review of buffer mitigation credits per the
instructions provided on page 7. Once a final submittal has been provided to DWR, DMS will
receive a Closeout Approval Letter from DWR to document approved riparian buffer credits for
this project. The draft asset map submitted by DMS with their proposal is attached for reference.
Page 7 of 9
A830EAE7-A678-4794-8HE-Cl B816751 E680 EL
Chapel Creek: Proposed Riparian Buffer and Nutrient Offset Credits 2022
r
e♦♦.��ee♦♦♦ee y
���ea♦♦♦♦♦eG♦♦♦e6♦o
♦epees ��♦♦e♦♦♦♦♦♦♦♦♦♦♦s♦�►��,� , IIII 1101��111111111111111 IIIIIIIIIIIIIIIII IIIII Illlliill
_ �♦♦♦♦♦♦♦♦♦e♦e♦�s����♦�� F , IIIIIIIII IIIIIIIIIIII�II II IIII I
reeeeeeeeie♦♦♦♦e�`�� ♦ `I uulluuuulilluuuuliiiiiiiiiiiiiiiiill//
.�eee♦♦♦♦♦♦♦♦yo♦�.���� IIIIIIIIIIIIIIIII
.♦.�� �ee�ea.�e�.o♦aeeee♦i♦
♦♦i♦i♦i� .�� '�♦i♦i♦♦♦i♦i♦i♦ie
ei♦iei♦iei`.. -. see♦ �. Oei♦iei=♦!♦♦�►'���
♦♦e♦♦♦e♦eeeee.�+♦e♦e♦�ie♦i`e . e��' `��w��`''s♦♦!�♦�:.r
♦i♦i♦i♦iei♦iC°��eeM'1;�oP.9��,.-a-.�i`. ♦��e�♦t, a..,, .��♦e�►
♦ere♦e♦ee�eee♦e♦e♦♦♦♦♦ •e.�♦♦♦e♦i♦i`. eei♦i��*i���'�ee�♦+♦►es♦i♦i•,se
r.".r;• ;.., . �♦♦♦♦� ♦�v'y�^� . I�IIIIIIIIIIIIOI�IIIIII
a
'x4
_ �`♦eeee♦♦�
+y Legend
Conservation Easement s. `
Channel
0'-30'
30' - 100' ;.
TOB to 100' +
�;�� > 1ou page 7B -
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1B816751E68
Attachment: Office Memorandum from Division of Mitigation Services dated April 18, 2022
DocuSign Envelope ID: A830EAE7-A678-4794-8E6E-C1 B816751 E68
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
MARC RECKTENWALD
Director
NORTH CAROLINA
Environmental Quality
OFFICE MEMORANDUM
To: Katie Merritt, Riparian Buffer and Nutrient Offset Credit Manager, DWR
From: Lindsay Crocker, Eastern Supervisor Project Management, DMS
Date: April 18, 2022
Re: Legacy Credits —Upper and Lower New Hope Cape Fear 02 watershed
Background for Context
January 1, 2014, the Consolidated Buffer Mitigation Rules (15A NCAC 02B .0295) rules went into effect.
On October 24, 2014, the rules were readopted as temporary rules. These rules were permanently
adopted on November 1, 2015. The creditable changes between the first two versions and final version
of the rule included among other things, ratio changes for mitigation, caps on certain buffer widths, and
preservation only credit allowance on projects.
On October 14, 2014, DMS formally submitted four sites for consideration under the temporary
consolidated rules in the Jordon Lake Upper and Lower New Hope (UNH and LNH) watersheds.
Submission included GIS maps, asset tables, and project information. Historically, this watershed has a
consistent need for buffer and/or nutrient offset credits, and DMS has difficulty in procuring private
mitigation.
According to the DMS Project Manager at the time (Jeff Schaffer, retired), these sites were visited with
DMS and DWR staff in 2014. Correspondence between staff (Katie Merritt, DWR and Jeff Schaffer) in
2014 confirms these site visits and describes that DWR was seeking legal interpretation of these rules
before assigning credit. In March 2016, DWR requested that DMS resubmit the sites for closeout under
the recently revised permanent rule.
Since then, the difficulty in procuring mitigation has increased to the extent that the Department of
Environmental Quality has suspended the acceptance of payments in the UNH and LNH service areas
until effective solutions are developed. Three of the four previously submitted legacy projects in the
Upper and Lower New Hope have riparian buffer and/or nutrient offset credit which are in the DMS
accounting system (CRM). These projects have credit that is equivalent to approximately 6 acres of
riparian buffer, and 2.5 acres of nutrient offset. These are in addition to DMS' current need of —30 acres
of riparian areas (equivalent) to satisfy mitigation obligations in the UNH and LNH areas.
D Q
�� North Carolina Department of Environmental Quality I Division of Mitigation Services
217 West Jones Street 1 1652 Mail Service Center I Raleigh, North Carolina 27699-1652
rr
NOR I H AAROLINA
DeR mcm n}Emdrc ial Owkty r 919.707.8976
DocuSign Envelope ID: A830EAE7-A678-4794-8HE-C1B816751E68
Current Request
DMS is submitting these four projects for credit consideration. Submittal includes background
information on the projects, land use history, planting information, credit maps and asset tables. If a
site would generate different credit between the two versions of the rule, then two tables were
submitted. A summary of the sites is shown below and there are five years of monitoring reports for all
projects available: https://deg.nc.gov/about/divisions/mitigation-services/dms-protect-documents-
table.
DMS respectfully requests that:
1. DWR consider these projects for close out under the October 24, 2014 temporary rules because
they were originally submitted for close out during that timeframe;
2. DWR evaluate these proposals for credit as submitted; and
3. If applicable, DWR suggest alternative credit possibilities under the riparian buffer and nutrient
offset rules if there is disagreement on DMS presented credit approaches.
We look forward to working together to resolve the credits on these projects.
ULNH Buffer Analysis: Legacy Projects
Riparian
Forest Hills: UNH
Buffer
or Nitrogen/
Phosphorus
In CRM
247,787
Potential in Temporary
236,238
8,225
498
Potential in Permanent
236,238
8,225
498
+/-
-11, 549
Riparian
Little Beaver Creek: LNH
Buffer
Nitrogen
Phosphorus
In CRM
0
Potential in Temporary
443,158
Potential in Permanent
443,158
+/-
443,158
Scenario B Potential in Temp
181,978
Scenario B Potential in Perm
153,716
Riparian
AND
Chapel Creek: UNH
Buffer
Nitrogen/
Phosphorus
In CRM
24,481
3,494
118
Potential in Temporary
86,789
3,495
176
+/-
62,308
0
0
Potential in Permanent
39,646
3,495
176
+/-
15,165
0
58
Riparian
Sandy Creek: UNH
Buffer
Nitrogen
Phosphorus
In CRM
1,963
1,788
113
Potential in Temporary
65,309
0
0
Potential in Permanent
0
0
0
+/-
63,346
-1,788
-113
R
North Carolina Department of Environmental Quality I Division of Mitigation Services
217 West Jones Street 1 1652 Mail Service Center I Raleigh. North Carolina 27699-1652
NORTH CAROUNA
aea.rtrn.M & E.W.. J/" 919.707.8976