20061291 Ver 1_USACE Correspondence_20070605

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• IN REPLY REFER TO
Regulatory Division
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
Washington Regulatory Field Office
P.O. BOX 1000 /
Washington, North Carolina 27889-1000 r
June 4, 2007
ORM ID SAW-199606890 / Great Dismal Swamp Restoration Bank
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Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
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Dear Mr. J?Sorney:
This correspondence is in reference to the Timberlake Farm property of the Great Dismal
Swamp Restoration Bank located south of U.S. 64, east of Columbia, in Tyrrell County, North
Carolina. The purpose of this letter is to request your review and comments on the attached
proposal by Great Dismal Swamp, LLC, to modify its mitigation banking instrument (MBI) to
expand the geographic service area of the Timberlake Farms bank property.
Specifically, the Bank Sponsor proposes to expand the service area to include all areas of the
outer coastal plain of North Carolina identified as Middle Atlantic Coastal Plain on the attached
map (Ecoregion 63), from Virginia to South Carolina and west to the demarcation between the
inner and outer coastal plains. Pursuant to Section IX. General Provisions, D. Modifications, of
the MBI, the instrument may not be modified except by the written agreement of the signatory
parties. Toward this end, please provide me with your written comments regarding this proposal
within 20 days of your receipt of this correspondence. I will be contacting you in the near future
to discuss this matter in more detail.
Thank you for your time and cooperation. If you have any questions, please contact me at the
Washington Regulatory Field Office, telephone [phone], extension 22.
Sincerely,
7? ?1011 I ?i
David M. Lekson
Chief, Washington Regulatory Field Office
Enclosures
DISTRIBUTION:
Copies furnished (with enclosures):
Mr. Mike Wicker
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636-3726
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
Copy Furnished (without enclosure):
Mr. Donald Carr
Pillsbury Winthrop
1133 Connecticut Avenue, NW
Washington, D.C. 20036-4305
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W?;i€ gon_Reg 1aa:1,y t:
May 16, 2007
David Lekson
U.S. Army Corps of Engineers
Washington Regulatory Field Office
107 Union Drive
Suite 202
Washington, NC 27889
Dear David:
Donald A. Carr
Partner
Phone: [phone]
[e-mail]
Here is a draft revision of the MBI which would accomplish the objective we discussed
last week. This new language would make it clear that Timberlake credits are eligible for
consideration in decisions about mitigation packages for projects with wetland impacts in
Ecoregion 63. In support of this amendment, the following things can be said:
1. It is completely in conformance with the express language of the mitigation
bank guidance, which provides that "the geographic extent of a service area should, to the
extent environmentally desirable, be guided by the cataloguing unit of the "Hydrologic
Unit map of the United States' (USGS, 1980) and the ecoregion of the "Bcoregions of the
United States' (James M. Omernik, 1986) or section of the `Descriptions of the
Ecoregions of the United States' (Robert G. Bailey, USDA, 1980))."
2. When we began drafting this MBI provision in mid-1995, before the EPA
guidance document was issued, and before restoration work was fully conceived, much
less implemented at the Timberlake site, it was the prudent, conservative course to
restrict the provisional service area to HUC 03010205, if for no other reason than to steer
the advance credits to projects within close proximity of the then-untested mitigation
work. Of course, even this original MBI language allowed for a wider service area
beyond HUC 03010205 where the Corps and the MBRT so approved, on a case-by-case
basis.
3. Since the MBI was finally approved in 1997, and the first restoration plan was
accepted in 1998, the MBRT has had ample opportunity to judge the commitment and
wherewithal of the bank sponsor to complete the whole endeavor to the full extent of the
success criteria. Moreover, the MBRT's decade of scrutiny of the operation of the bank,
in both Phase I (forested area) and Phase II (agricultural area), has led to confident
400572631v1
David Lekson
May 16, 2007
Page 2
judgments that the site has not only achieved predicted levels but in fact has become an
exemplar of excellence in the reestablishment of healthy wetland functions. The
potential has become the actual, eliminating the significant risks which are inherent in the
early phases of these banks.
4. As judged today against other less-well-established banks in the ecoregion, or
banks yet to be commenced, Timberlake credits may be seen as representative of more
mature, more robust, ecological systems and services.
5. Insofar as Timberlake credits have been, and may in the future be subject to
purchase by NCDOT/WRP/EEP for mitigation of linear transportation impacts, they fit
the model in the EPA guidance for "designation of a more inclusive service area more
appropriate for mitigation banks whose primary purpose is to compensate for linear
projects that typically involve numerous small impacts in several different watersheds."
6. Timberlake has become distinctive in the development of a scientific platform
for leading researchers and institutions, such as Duke and UNC. The work of Drs.
Bernhardt and Doyle and their colleagues, Dr. Ardon and Ms. Morse, in "intense
monitoring effort of soil and surface water nutrient concentrations, watershed nutrient
loading and export, and gaseous emissions" affecting climate change processes, reflects
the scientific and conservation policy significance of the bank site.
7. As is evident from the Bernhardt-Doyle work, it is the great scale of this
restoration program, in addition to the ambitious riverine success criteria, which makes
the project stand out from the pack. The mitigation bank guidance, as well as a body of
scientific evidence, speaks to the preference for larger, landscape scale banks, over the
so-called "postage stamp" variety.
8. As is also evident from the Bernhardt-Doyle scientific research, the
Timberlake restoration program addresses ecosystem services issues which are common
to areas in the North Carolina portion of the Middle Atlantic Coastal Plain. Insofar as it
is their research which furnishes the basis for the recent April 4, 2007 stream restoration
information paper concerning the Middle Atlantic Coastal Plain Ecoregion (as shown on
Griffith, et al. 2002), it seems appropriate now to clarify that the bank's credits should be
eligible for consideration in mitigation decisions about projects in the ecoregion.
9. GDSRB contemplates that in the course of any additional sales of Timberlake
credits to EEP, or to related North Carolina state entities, this amended service area
400572631V1 Pillsbury Winthrop Shaw Pittman LLP
ti
David Lekson
May 16, 2007
Page 3
would apply, and that the MBRT would be engaged in all subsequent decisions about the
utilization or apportionment of such credits.
Please let me know if you have any questions on these points, or if you need any
additional materials in connection with our request.
Sincerely,
kT"
Donald A. Carr
Enclosure
cc: Dr. Bernhardt
Dr. Doyle
400572631 V 1
Pillsbury Winthrop Shaw Pittman LLP
I
V. OPERATION OF THE MITIGATION BANK
A. Geographic Service Area. The service area of the Bank
is the designated area wherein it can reasonably be
expected to provide appropriate compensation for
impacts to wetlands and other aquatic resources. This
is defined by the USGS Hydrologic Unit Code 03010205,
which is the historic watershed of the Great Dismal
Swamp in southeastern Virginia and northeastern North
Carolina, i.^,tre-area r-eagYlyeast of heSu.ffelk
Geary r-e3RVirginia Bea-eh,-Virginia en the ne=t , and-
the eeies of Bare, Tyr-L=^l and Washingten Ner-t ,
Plain Ecoregion as shown on Griffith, et al. 2002 of
North Carolina, provided that: (i) restoration credits
produced in Virginia may only be used to compensate for
impacts to wetlands in Virginia; (ii) restoration
credits produced in North Carolina may only be used to
compensate for impacts to wetlands in North Carolina
(with restoration credits produced south of the
Albemarle Sound used to compensate for impacts south of
the Albemarle Sound); and (iii) preservation credits
produced in Virginia or North Carolina may be used to
compensate for impacts in either jurisdiction. The use
of the Wetland Bank to compensate for impacts beyond
the geographic service area may be considered by the
Corps or the permitting agency in appropriate
circumstances, but authorization for any specific
project is within the discretion of the Corps and state
regulatory agencies. In consideration of concerns
expressed by the North Carolina DEHNR, the Little River
watershed is excluded from the geographic service area
of the Bank, however, until such time as the MBRT
approves of inclusion of a wetlands site from the
Little River watershed in the Bank, and such a Bank
Site has generated credits to be used for compensatory
mitigation.
B. Bank Uses. The Bank may be considered by the Corps,
North Carolina DEHNR, and Virginia DEQ as one of the
practicable mitigation options for permitted activities
that disturb wetland areas. It may be used to offset
unavoidable project impacts in a manner similar to
other compensatory mitigation options. The Bank will
not in any way alter normal mitigation requirements as
set forth in, among other places, 40 C.F.R. § 230.10.
When an applicant has requested compensatory mitigation
for unavoidable impacts through the purchase of credits
from the Bank, evaluation of a proposed project will be
no different than evaluating the project with other
forms of compensatory mitigation. Subject to further
agreement by the MBRT, the Bank may not be considered
as one of the practicable mitigation options for
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impacts in the Little River watershed, except where the
MBRT has approved of inclusion of a wetlands site from
the Little River watershed in the Bank, and the site
has generated credits to be used for compensatory
mitigation.
C. Design of the Bank.
1. Concepts. Subject to the decision of the Corps,
site-specific designs for each site shall be
prepared by the Bank Sponsor and submitted to the
MBRT for review, comment, and approval with all
comments to be delivered to Bank Sponsor as deemed
necessary. The design of the Bank shall be based
on the following concepts:
a. Restoration of monotypic stands of Atlantic
white cedar or other suitable species
historically indigenous to the Swamp.
b. Vegetation establishment consisting of direct
planting of Atlantic white cedar or other
suitable species seedlings. Plant stock will
be drawn from nursery stock approved by the
MBRT and located within +/- 200 miles north
and south of the planting area, based upon
availability and economic considerations at
the discretion of Bank Sponsor and as
approved by MBRT.
C. Enhancement of existing conservation lands,
including State, federal, and private
holdings.
2. The wetlands to be enhanced, preserved or restored
shall be in the areas of the Bank Site delimited
in the Joint Public Notices issued by the Army
Corps of Engineers, Norfolk District, and Virginia
Department of Environmental Quality on April 24,
1997, and by the Army Corps of Engineers,
Wilmington District on May 1, 1997, as to be more
fully described in the Site Specific Restoration
Plan(s).
3. Wildlife enhancement and educational features
shall be considered and incorporated within the
design concept.
D. Site-Specific Restoration Plan(s). The Site-Specific
Restoration Plan(s) shall be prepared along the
conceptual terms set forth in V.C. supra, and shall
include at a minimum a water budget, a conceptual
grading plan, a spot elevation survey, a plant species
list and planting scheme (including spacing & density),
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