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Home My WebLink About20080229 Ver 2_USACE Correspondence_20080910Dd -caaq DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS P.O. BOX 1890 WILMINGTON, NORTH CAROLINA 28402-1890 September 8, 2008 IN REPLY REFER TO Regulatory Division Action ID. 200521199 Mr. Richard Mogensen Mid-Atlantic Mitigation, LLC An Earthmark Company 1960 Derita Road Concord, North Carolina 28027 Dear Mr. Mogensen: 771 ?aR,? Ir -7, I01 S, F Y 20g NYC 1lIL u? AK) This correspondence is in reference to the Forrest Creek Mitigation Bank located approximately seven miles northeast of Hillsborough and six miles northeast of Durham in northeastern Orange County, North Carolina. The purpose of this letter is to confirm a small modification to the Mitigation Banking Instrument (MBI) entitled, "Forrest Creek Mitigation Bank", dated February 2007, and to confirm the post-construction credit release. The modification to the MBI involves a change to the vegetation success criteria necessary to incorporate a buffer component to the bank. In addition, you have requested to update the MBI with the current credit release schedule. Members of the MBI team have reviewed the modification request and provided comments to you. The attached pages reflect the MBI modification after inclusion of the teams' comments. Please replace the original MBI pages with those attached and consider the MBI officially amended. On August 4, 2008, the US Army Corps of Engineers (Corps) and the NC Division of Water Quality conducted a post-construction inspection of the bank. This inspection found the construction methods consistent with the permit and mitigation plan. The amended credit release schedule allows for a 15% release of credits from the total of 7,040 restoration and enhancement credits. This would involve a release of 1,056 credits. By copy of this correspondence, we confirm that you have satisfied the above requirements and that an additional 1,056 credits are now available for sale. Please note the following excerpt from the MBI: " The Sponsor shall submit an annual ledger documenting credit releases and debits to the MBRT for maintaining accurate records of credit transactions made from the Bank. Accounting procedures shall include the generation of a report by the Sponsor showing credits used each time they are debited from the Bank, which the Sponsor shall provide within 30 days of the debit to the chair of the MBRT. In addition, the Sponsor shall prepare an annual report, by the end of each calendar-year, showing all credits used, and the balance of credits remaining, the USACE and NCDWQ, until such time as all of the credits have been utilized, or this agreement is otherwise terminated. All reports shall identify credits debited and remaining by type of credit (e. g., stream), and shall include for each reported debit the Corps Action ID number for the permit for which the credits were utilized." As credits are sold, please submit debit and annual reports as required by this component of the MBI. Thank you for your time and cooperation. If you have any questions, please contact Mr. Monte Matthews at the Raleigh Regulatory Field Office, telephone (919) 554-4884, extension 30. Sincerely, Jean B. Manuele Chief, Raleigh Regulatory Field Office Attachments Copies Furnished with Attachments: Mr. Todd St. John Kimley-Horn and Associates, Inc. Post Office Box 33068 Raleigh, NC 27636-3068 Ms. Cyndi Karoly NCDENR - Division of Water Quality Wetland/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Mr. Peter Benjamin United States Fish and Wildlife Service Post Office Box 33726 Raleigh, North Carolina 27636-3726 2 Ms. Shari Bryant Post Office Box 129 Sedalia, North Carolina 27342 Ms. Rebecca Fox U.S. Environmental Protection Agency 1349 Firefly Road Whittier, North Carolina 28789 Mr. John Dorney NC DENR/Division of Water Quality Wetland/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Mr. Eric Kultz NC DENR/Division of Water Quality Wetland/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Ms. Kathryn Matthews U.S. Environmental Protection Agency 109 T.W. Alexander Drive Durham, North Carolina 27711 Mail Code E143-04 3 (Version 2.2 May, 2008) 20. 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: For Wetland Mitigation: Wetlands Credit Release: ¦ 15% upon implementation of the physical and biological improvements (total 30%); ¦ 10% after first year, if interim success measures are met (total 40%); ¦ 15% after second year; if interim success measures are met (total 55%); ¦ 20% after third year; if interim success measures are met (total 75%); ¦ 10% after fourth year; if interim success measures are met (total 85%); ¦ 15% after fifth year, if Success Criteria are met (total 100%). The above schedule applies only to the extent the Sponsor documents acceptable survival and growth of planted vegetation, and attainment of acceptable wetland hydrology as described under the success criteria in the monitoring section of the mitigation plan. The final 15% of credits will be available for use only upon a determination by the MBRT of functional success as defined in the mitigation plan. Stream Restoration and Enhancement Credit Release: ¦ 15% for items in paragraph 19, above ¦ Construction release: 15 % upon completion of all initial physical and biological improvements made pursuant to the mitigation plan: (30% cumulative) ¦ After year 1: (10% and 40% cumulative) ¦ After year 2: (10% and 50% to 65% cumulative) 10% if the second bankfull event in separate monitoring years has not occurred. 25% if the second bankfull event in separate monitoring years has occurred and the channel is stable and all other success criteria met. ¦ After year 3: (10% and 60% to 75% cumulative) 10% or 25% (same as year 2). ¦ After year 4: (10% and 70% to 85% cumulative) 10% or 25% (same as year 2 and year 3) ¦ After year 5: (15% and 85% to 100% cumulative) 15% if the second bankfull event in separate monitoring years has not occurred. 30% if the second bankfull event in separate monitoring years has occurred and the MBRT makes a determination of functional success as defined in the mitigation plan. ¦ After year 3: (10% and 60% to 75% cumulative) 10% or 25% (same as year 2). ¦ After year 4: (10% and 70% to 85% cumulative) 10% or 25% (same as year 2 and year 3) ¦ After year 5: (15% and 85% to 100% cumulative) 15% if the second bankfull event in separate monitoring years has not occurred. 30% if the second bankfull event in separate monitoring years has occurred and the MBRT makes a determination of functional success as defined in the mitigation plan. The above schedule applies only to the extent the Sponsor documents acceptable survival and growth of planted vegetation, attainment of acceptable wetland/stream conditions as described under the success criteria in the monitoring section of the mitigation plan. Preservation Credit Release: For the portion of the Bank Site considered to be preservation, it is requested that 100% of the credit be released immediately upon execution of the MBI by the Sponsor, the USACE, and other agencies eligible for membership in the MBRT who choose to execute this agreement and recordation of the preservation mechanism. No wetland restoration or enhancement is proposed at this time; however, should any be proposed during the design phase, the credit release schedule below would apply. Wetlands Credit Release: ¦ 15% upon implementation of the physical and biological improvements (total 30%); ¦ 10% after first year, if interim success measures are met (total 40%); ¦ 15% after second year; if interim success measures are met (total 55%); ¦ 20% after third year; if interim success measures are met (total 75%); ¦ 10% after fourth year; if interim success measures are met (total 85%); ¦ 15% after fifth year, if Success Criteria are met (total 100%). Use of Credits Decision-Making Authority for Use of the Bank: The USACE is the regulatory authority for permit decisions pursuant to Section 404 of the Clean Water Act, including determinations of compliance with the USACE permit regulations (33 CFR Parts 320-330) and Section 404 (b) (1) Guidelines (40 CFR Part 230). NCDWQ also has been designated the regulatory authority in North Carolina for issuing Water Quality Certifications for wetlands and streams impacts through Section 401 of the Clean Water Act. NCDWQ has developed mitigation requirements, as well, regarding wetland and stream impacts. NCDWQ has implemented rules for protecting stream buffers in the Neuse Basin that includes requirements for mitigating impacts to riparian buffers. The USACE will determine the amount of compensatory mitigation required for each 404 permit, and the equivalent number of credits Forrest Creek Mitigation Banking Mitigation Plan, Orange Count,, Nortb Carolina Mid Atlantic Mitigation, LLC 12 measurements. Channel material measurements will be collected by using pebble counts of the permanent cross sections. The entire restored length of stream will be investigated for channel stability and in-stream structure integrity. Any evidence of channel instability will be identified, mapped, and photographed. All structures will be inventoried for functionality and photographed. The monitoring will occur annually for a minimum of five years. The monitoring period should include two separate years with bankfull events. Bankfull events will be verified using an installed crest gauge that will be inspected during each monitoring visit and after significant storm events. If there are not two bankfull events, the monitoring period may be extended at the discretion of the USACE, Raleigh Regulatory Field Office Project Manager and the NCDWQ 401-Wetlands Unit. Monitoring reports will be submitted during years 1-5. 11.2 Vegetation Vegetation requirements state that 320 stems/acre representing a majority of target species must be viable for success after the five year monitoring period. Should the performance criteria outlined above not be met during the monitoring period, Mid-Atlantic Mitigation will provide the MBRT with their remediation proposal, detailing corrective actions and/or maintenance actions proposed and an implementation schedule for said actions, planned to meet the criteria. Upon review and approval of said corrective measures by the MBRT, Mid-Atlantic Mitigation will implement the necessary corrective measures. Monitoring for the progress of vegetation restoration will follow protocol developed by the Carolina Vegetation Survey (CVS) Level 2 inventory plots. Level 2 plots count planted stems and total woody stems including recruits. The Level 2 inventory also assesses the health of the inventoried vegetation. Modules, the standard area of inventory, cover a 100 square meter area. The modules will be placed randomly throughout the restoration and enhancement areas. The total area inventoried by the modules will compose 3 -5% of the total restoration and enhancement area. Initial sampling will occur within 60 days of the plantings. The Year 1 monitoring will occur during September with subsequent year's samplings occurring between June I and October 31. For each module, photos will be taken each year at permanent photo points. Noxious species will be identified and controlled so that none become dominant or alter the desired community structure of the site. If noxious plants are identified as a problem in the site, Mid-Atlantic Mitigation will develop a species-specific control plan for approval by the MBRT prior to implementation. Through coordination with the MBRT during the five-year monitoring period, Mid-Atlantic Mitigation, where necessary, will remove, treat, or otherwise manage undesirable plant or animal species, including physical removal, use of herbicides, live trapping, confining wires, or nets. The site will be fenced to keep cattle out of the mitigation areas. Forrest Creek Mitigation Banking Mitigation Plan, Orange County, North Mid Atlantic Mitigation, LLC 16