20081143 Ver 1_USACE Correspondence_20080725

-Ago ST,?rFs
z? A ;J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
W REGION 4
o Q ATLANTA FEDERAL CENTER
0 61 FORSYTH STREET
3F4, l14 aaOSto a ATLANTA, GEORGIA 30303-8960
July 31, 2008
Mr. Andrew E. Williams
Project Manager
Raleigh Regulatory Field Office
Wilmington District, Corps of Engineers
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
kg?? . .... 7_5
AUG 6 ZOO
DEW . WATER QUALAI"I
V&TLANDS AND STOROATER BRANCH
Subject: Cripple Creek Stream and Wetland Mitigation Bank, Alamance County
Action I.D. #SAW-2007-01188-201
Dear Mr. Williams:
This is in response to the Public Notice for Cripple Creek Stream and Wetland Mitigation
Bank, sponsored by Restoration Systems, LLC. According to the public notice, the bank sponsor
proposes to restore 6.9 acres of wetlands and 4,265 linear of stream and to enhance 1.9 acres of
wetlands and 633 linear feet of stream. The U.S. Environmental Protection Agency (EPA),
Region 4 Wetlands Regulatory Section has reviewed the public notice, the prospectus, the draft
mitigation banking instrument (MBI), and the mitigation plan for the project. We have the
following comments for your consideration, and the consideration of the Mitigation Bank
Review Team (MBRT).
Prospectus and Draft MBI
1. The bank is within one of the North Carolina Ecosystem Enhancement Program's (EEP)
targeted local watersheds. However, it is not within the watershed area that is included in EEP's
development of the watershed plan (the Little Alamance, Travis, and Tickle Creek watershed to
the southwest).
2. The prospectus does not address all of the items required by the 2008 Mitigation Rule (40
CFR Part 230) for a complete prospectus. Therefore, EPA recommends that the U. S. Army
Corps of Engineers (Corps) consider the prospectus incomplete until all of the items have been
sufficiently addressed. Specifically, the information required at 40 CFR Parts 230.98(d)(2)(v)
(proposed ownership arrangements and long term management strategies) and (d)(2)(vii)(B)
(assurance of sufficient water rights to support the long-term sustainability of the bank) has not
been included in the prospectus. Other required information is not provided in enough detail.
We realize that some of this information may be found in other submitted documents. However,
for the prospectus to be complete, the information should be included.
Intemet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)
3. Prospectus Page 2 (Establishment and Operation): This section should clearly outline the
steps which have been completed, and which have been successful. For example, has the land
been acquired?
4. Prospectus, Page 2 (Need and Technical Feasibility): This section should provide more
information, particularly on the technical feasibility. Simply stating that it is a "certainty based
on site investigations" is not sufficient.
5. Prospectus, Page 2 (Sponsor's Qualifications): This section should provide more detail of the
sponsor's qualifications. For example, provide some names of sites completed in the State, and
how many sites have been successfully closed out by the Sponsor.
6. Credit Release: Schedule, Page 3: 40 CFR Part 230.96(b) states that a longer monitoring
period [than five years] must be required for aquatic resources with slow development rates (e.g.
forested wetlands, bogs). To comply with the new requirements, EPA recommends that the
sponsor be required to monitor the wetland areas for a minimum of seven years, and that the
MBI use the following credit release schedule for the wetland restoration and enhancement areas
(We note that if other MBRT/IRT members require a longer monitoring and credit release
schedule, we would be supportive of a longer schedule than seven years):
- Execution of the MBI, MBRT approval of the mitigation plan, delivery of financial assurances,
recordation of the conservation easement, and delivery of the title option - 15%
- Construction, submission of as-builts, and inspection by USACE - 15% (30% cumul.)
- 1St successful year of monitoring - 5% (35%)
-2 nd successful year of monitoring - 10% (45%)
- 3'd successful year of monitoring - 10% (55%)
- 4th successful year of monitoring -10% (65%)
-5 1h successful year of monitoring -10% (75%)
-6 1h successful year of monitoring -10% (85%)
-7 1h successful year of monitoring, and close-out of site - 15% (100%)
The stream credit release schedule may remain a five-year schedule.
7. Responses to Agencies' May 15, 2007, comments: #8. The use of herbicides in wetlands and
riparian areas should be avoided, if possible. Vegetation requiring removal should be removed
physically, if possible. If physical removal is not possible, then any herbicides used should be
applied directly to the targeted plant. Under no circumstances should herbicides be broadcast on
the site.
8. Prospectus, Page 7 (draft MBI): General Provision #5 has been added by the bank sponsor
and should be removed from the MBI. As provided under General Provisions #4 and # 19 of the
MBI, the District Engineer retains the authority to make permit decisions concerning
appropriateness of mitigation. Further, Paragraph #5 does not accurately or completely reflect
2
the provisions or requirements of 40 CFR Part 230.93. EPA believes that the language of
General Provisions #4 and #19 is sufficient to address all of the requirements of 33 CFR Parts
325 and 332, 40 CFR Part 230 and other implementing regulations and guidance developed
under Section 404 of the Clean Water Act.
9. Prospectus, Page 8. EPA notes that minimum riparian buffer widths should be determined by
measuring 50 feet from the outer belt width on each side of the stream.
10. MBI Table 1. The table should be revised to reflect a seven-year credit release schedule for
forested wetlands.
11. The language of General Provision #17 is confusing and should be revised. Specifically, I
recommend that the language be revised to state: "It is anticipated ... that use of mitigation
credits shall be `in-kind;' that is, that riparian wetland credits will be used to offset riparian
wetland impacts, etc."
12. The draft MBI does not include a provision stating that legal responsibility for providing the
compensatory mitigation lies with the sponsor once a permittee secures credits from the sponsor,
as required by 40 CFR 230.98 (d)(6)(ii)(C).
13. There are some default provisions in General Provision #27, but there are no closure
provisions required pursuant to 40 CFR 230.98(d)(6)(ii)(D).
14. All references to a five-year monitoring period should be revised to a seven-year monitoring
period, throughout the document (unless referring specifically to the stream mitigation).
Mitieation Plan
1. All references to a five-year monitoring period should be revised to a seven-year monitoring
period (unless directly referring to the stream monitoring), throughout the document.
2. On Page 25 in Section 6. 1, the first paragraph referring to the stream success criteria is
confusing. The last clause ("otherwise monitoring will continue until the second bank full event
has occurred") should be deleted. A minimum of five years of monitoring will be required for
the stream mitigation.
3. On Page 25 in Section 6.2, the vegetation success criteria should include criteria for year 7.
EPA recommends 260 planted trees per acre. Vegetation of the forested wetlands must be
monitored for at least seven years.
4. Section 6.3: Hydrology of the forested wetlands must also be monitored for at least seven
years.
3
5. Section 7.2: The seven-year credit release schedule referred to above should be included
here.
6. Section 7.3: From this language, it is unclear whether the entire property or just the easement
area will be purchased.
7. Pursuant to 40 CFR Part 230.94(c)(12), the mitigation plan must include an adaptive
management plan.
8. Pursuant to 40 CFR Part 230.94(c)(13), the mitigation plan must include financial assurances.
9. Pursuant to 40 CFR Part 230.94(c)(14), the mitigation plan must include a long-term
management plan. Although the sponsor indicates that it will be the owner for five years and
then transfer the property to a private conservation organization, this does not sufficiently
address long-term management of the property. The mitigation plan should clearly state whether
long-term management is needed for any aspect of the site. If long-term management is
necessary, then the plans should be clearly stated. Future enforcement of the easement
boundaries is an example of a typical issue to address.
Thank you for the opportunity to review this project. If you have any questions or
comments, please contact Kathy Matthews, of my staff, at [phone] or
[e-mail].
Sincerely,

Thomas C.
Chief
Wetlands, Coastal, and Nonpoint Source Branch
cc: USFWS
NCDWQ
NCWRC
NCHP
4