20081143 Ver 1_USACE Correspondence_20070519

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
REPLY TO
ATTENTION OF May 15, 2007
Regulatory Division
Action ID No. SAW-2007-01188-201
Mr. Randy Turner
Restoration Systems, LLC
1101 Hayes Street, Suite 107
Raleigh, North Carolina 27604
Dear Mr. Turner:
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MAY 1 `J 2007
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The Corps received the proposed Cripple Creek Stream and Wetland Mitigation Bank
Prospectus and Mitigation Plan on March 12, 2007. A Mitigation Banking Review Team
(MBRT) was assembled and includes representatives from the Corps and other state and federal
resource agencies. An on-site MBRT meeting was conducted on March 23, 2007, and by letter
dated March 29, 2007, the MBRT was requested to provide written comments and concerns
within 30 days.
The written comments and concerns have been received and are enclosed for your
consideration and response. The following list is a summary of the concerns expressed by the
MBRT in the written comments and by the Corps.
The project plans should be more specific. For example, the plan should include drawings
that indicate the existing and proposed stream pattern, profile, dimensions and elevation.
Also, the proposed location of features such as fences, gates, planting areas, etc. should
be shown. Additionally, the locations of the existing and proposed cross sections, the
proposed structures, fill and proposed depressions, etc. should be shown.
2. Wetland enhancement and restoration areas should be closely monitored in order to
assure that they are and/or will become jurisdictional wetlands.
3. The credit release schedule, as proposed in the prospectus, is not consistent with the
Stream Credit Release Schedule present as Appendix IX of the Stream Mitigation
Guidelines (April 2003-U.S. Army Corps of Engineers, Wilmington District; U.S.
Environmental Protection Agency; North Carolina Wildlife Resources Commission;
North Carolina Division of Water Quality). However, as stated in a letter dated May 8,
2007, from Mr. Scott McClendon, Assistant Chief of the Wilmington District Regulatory
Division, the final decision regarding the credit release schedule will be made with the
MBRT's full participation. If the MBRT decides that it is appropriate to alter the release
schedule based on the mitigation site's apparent ability to provide the expected stream
and wetland functions as described in the planning document, then that decision rests
entirely with the MBRT. Also, the Wilmington, Regulatory Division intends to convene
the North Carolina MBRT as soon as possible to discuss this rule as it relates to the
current banking review process in North Carolina. The purpose of this meeting will be to
determine if there is a need to revise certain threshold items to reflect the knowledge that
has been gained over the last several years regarding compensatory mitigation.
Furthermore, you should be aware that members of the MBRT have stated in their
comment letters that they support discussion involving a revision of the credit release
schedule for all new mitigation banks; however, they do not support a deviation from the
previously agreed to and approved credit release schedule in the Stream Mitigation
Guidelines.
4. A survey of the project site should be conducted to identify individual hardwood trees
that are 5 inches DBH, which could potentially benefit the restoration processes through
input of organic material. Efforts should be made to preserve as many of these trees as
possible.
5. Native streambed substrate should be harvested from the existing channels for use in the
restored stream channels.
6. A strategy for invasive/exotic plant management should be included in the Mitigation
Plan for the site.
7. Information on possible land use changes within the project watershed should be
collected and considered in the design of the stream.
8. The Mitigation Plan should provide details regarding the methods for preventing
livestock access to the streams.
9. If livestock crossings are planned, the Mitigation Plan should include location, type of
crossing and any exclusionary fencing.
10. Surveys to determine if listed mussel species are present within the existing stream
should be conducted by biologist with both state and federal endangered species permits.
Additionally, similar surveys may be considered for other state listed species or federal
species of concern.
11. The vegetative success criteria could be modified to ensure that a stable, climatic plant
community can become established on the site.
12. A timeline for completion of the initial biological and physical improvement to the bank
site should be established.
13. You should consider the establishment of one-five year interim success measures for
stream restoration, vegetation establishment and stream and wetland hydrology.
14. The hydrological monitoring should include the establishment of stream gauges to
determine the frequency of bankfull event duration and frequency as established by your
proposed stream success criteria.
15. You should identify an acceptable third party conservation organization to hold the
conservation easement.
16. A list of items and activities prohibited in the easement area should be specified and
established. A list of these items and activities is located in the Wilmington District's
Model Conservation Easement.
17. Financial assurances should not be structured to provide funds to the Corps of Engineers.
18. Reference streams and wetlands should be considered in establishing your success criteria
for the bank site.
The concerns raised in the correspondences must be given full consideration before we can
make a final decision regarding the mitigation bank. We need your information to address the
concerns and issues raised over the proposed mitigation bank. You may submit additional
information or revise your plans to help resolve the issues. Please provide a written response
within 30 days from the date of this letter; otherwise, your application will be withdrawn.
Please contact me at 919-876-8441, extension 26 if I can be of any assistance.
Sincerely,
Andrew Williams
Regulatory Project Manager
Raleigh Regulatory Field Office
Enclosures
Copies furnished (with enclosure):
Mr. Eric Kulz
North Carolina Division of Water Quality
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Ms. Tammy Hill
North Carolina Division of Water Quality
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Mrs. Kathy Matthews
US Environmental Protection Agency
Region 4 Wetlands Section
109 T. W. Alexander Drive
Durham, NC 27711
Mail Code: E143-04
Ms.Shari Bryant
NC Wildlife Resources Commission
Habitat Conservation Program
Post Office Box 129
Sedalia, NC 27342-0129
Mr. Howard Hall
U.S. Fish and Wildlife Services
Ecological Services
P. O. Box 33726
Raleigh, NC 27636-3726
Mr. Daryl Lamb
North Carolina Department of Water Quality
Winston-Salem Regional Office
585 Waughtown Street
Winston-Salem, NC 27107
Ms. Renee Gledhill-Earley
North Carolina Historic Preservation Office
4617 Mail Service Center
Raleigh NC 27699-4617
4
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P RECEIVED
?'.r,Y 4 2007
"LEIGH REGULATORY FIELD OFFICE
North Carolina Department of Cultural Resources
State Historic Preservation Office
Peter B. Sandbeck, Administrator
Michael F. Easley, Governor Office of Archives and History
Lisbeth C. Evans, Secretary Division of Historical Resources
Jeffrey J. Crow, Deputy Secretary David Brook, Director
May 2, 2007
Andrew Williams
Department of the Army
Corps of Engineers
6508 Falls of Neuse Road, Suite 120
Raleigh, NC 27615
Re: Cripple Creek Stream and Wetland Mitigation Bank, Southeast of Intersection of SR 1750 and SR 1729,
Two Miles Northeast of Burlington, Alamance County, ER 07-0780
Dear Mr. Williams:
Thank you for your letter of March 29, 2007, concerning the above project.
We have conducted a review of the proposed undertaking and are aware of no historic resources that would be
affected by the project. Therefore, we have no comment on the undertaking as proposed.
The above comments are made pursuant to Section 106 of the National Historic Preservation Act and the
Advisory Council on Historic Preservation's Regulations for Compliance with Section 106 codified at 36 CFR
Part 800.
Thank you for your cooperation and consideration. If you have questions concerning the above comment,
contact Renee Gledhill-Earley, environmental review coordinator, at 919/733-4763, ext. 246. In all future
communication concerning this project, please cite the above referenced tracking number.
Sincerely,
P1,iA-?.S 4 rn Pill
Peter Sandbeck
Location Mailing Address Telephone/Fax
ADMINISTRATION 507 N. Blount Street, Raleigh NC 4617 Mail Service Center, Raleigh NC 27699-4617 [phone]/733-8653
RESTORATION 515 N. Blount Street, Raleigh NC 4617 rvW Service Center, Raleigh NC 27699-4617 [phone]/715-4801
SURVEY & PLANNING 515 N. Blount Street, Raleigh, NC 4617 Mail Service Center, Raleigh NC 27699-4617 [phone]/715-4801
Page 1 of 1
Williams, Andrew E SAW
From: [e-mail]
Sent: Thursday, April 12, 2007 4:23 PM
To: Williams, Andrew E SAW; Manuele, Jean B SAW
Cc: [e-mail]; Tammy. L.Hill @ncmail.net; Howard-Hall @ncmail. net;
[e-mail]; McLendon, Scott C SAW
Subject: Cripple Creek Mitigation Bank (Action ID SAW-2007-01188-201)
Hi Andy,
This is in response to your request for comments on the Cripple Creek Stream and Wetland Mitigation Bank,
proposed by Restoration Systems, LLC (Action ID SAW-2007-01188-201). I have reviewed the March 12, 2007
prospectus and mitigation plan, and I participated in the field visit on March 23, 2007.
In general, I believe that the site is a good candidate for a mitigation site. The streams and wetland areas on the
property provide good opportunity for restoration and/or enhancement. In addition, we have no significant
concerns for the project, as proposed in the prospectus. However, we note that there is additional information to
be provided, including specific design plans. I note that, as we discussed in the field meeting, we may need to
look closely at some of the wetland enhancement and restoration areas, to ensure that they are or will become
jurisdictional wetlands. We are pleased that the bank sponsor and its consultant (Axiom Environmental) have
stated a willingness to minimize disturbance to the existing vegetation and soils, and to use the existing bed
material in the relocated channel. I believe that the species planting list is appropriate. In addition, I believe the
proposed stream, vegetation, hydrologic, and benthic macroinvertebrate monitoring plans are appropriate.
However, I will defer to the DWQ staff to determine the appropriateness of the benthic macroinverteb rate
monitoring plans.
As we discussed in the field on March 23, there is an issue involving the proposed credit release schedule. We
recommend that the Statewide MBRT meet as soon as possible to discuss the proposed credit release schedule,
as it may effect all future mitigation banks.
Thank you for the opportunity to review this project. I look forward to reviewing more specific design plans for this
project, and to discussing the credit release schedule. Please call or email me with any questions or comments.
Kathy Matthews
USEPA - Region 4 Wetlands Section
109 T.W. Alexander Dr.
Durham, NC 27711
MAIL CODE: E143-04
phone [phone]
cell 919-619-7319
4/23/2007
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RECEIVED
April 11, 2007
APR 18 2001
Mr. Andrew Williams
U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
6508 Falls of Neuse Road, Suite 120
Raleigh, NC 27615
Re: Comments on Proposed Stream and Wetland Mitigation Project
Cripple Creek Mitigation Bank
Alamance County, NC
USACE Action ID No. SAW-2007-01188-201
Dear. Mr. Williams:
RALEIGH REGULATORY FIELD OFFICE
On March 23, 2007, Eric Kulz and Tammy Hill with the Division of Water Quality (DWQ) 401
Oversight and Express Review Permitting Unit attended an on-site meeting at the proposed mitigation
site to make observations and to discuss the project with Restoration Systems, LLC and other regulatory
agencies making up the Mitigation Bank Review Team (MBRT).
Based on the site visit and the Prospectus provided for the proposed project, our comments are as
follows:
• In general, the site appears to be a good candidate for restoration/enhancement activities. Both
the impacted wetlands and streams would benefit from the proposed mitigation activities.
• DWQ recommends a tree survey of the project site to identify individual hardwood trees that
could potentially benefit the restoration processes through input of organic matter into the system
and providing a native seed source to support natural succession processes on the site. Policies
currently in place and under development from DWQ target hardwood trees that are five inches
DBH or greater as providing an ecological benefit to the stream and are part of an established
and functioning riparian zone. Efforts should be made to preserve as many of these trees as
possible.
DWQ recommends harvesting native bed material from the stream for use in the restored stream
channel. Despite the fact that the channel has been straightened and areas of bank erosion and
incision are present, well-developed cobble riffles are present at a number of locations. As much
of this material as possible should be harvested for use in the riffles of the restored channel.
N Carolina
oe
Naturally
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone [phone] / Fax [phone]
Internet: htto://h2o.enr.state.nc.us/ncwetlands
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Water Quality
An Equal Opportunity/Affirmative Action Employer- 50% Recycled/10% Post Consumer Paper
Andrew Williams
. Army Corps of Engineers
pple Creek Mitigation Bank
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ategy for invasive/exotic plant management should be included in the Mitigation Plan for
• A str
the site.
• Information on possible land use changes within the project watershed should be collected and
considered in the design of the stream.
• The credit release schedule proposed in the Prospectus is not consistent with the Stream Credit
Release Schedule presented as Appendix IX of the Stream Mitigation Guidelines (April 2003 -
U.S. Army Corps of Engineers, Wilmington District; U.S. Environmental Protection Agency;
N.C. Wildlife Resources Commission; and N.C. Division of Water Quality).
DWQ supports interagency discussion involving a revision of the credit release schedule that
applies to all new mitigation banks. However, DWQ does not support case-by-case modification
of the release schedule based on "track record" of the bank providers or other such subjective
criteria.
If an overall policy dictating a revised credit release schedule is developed and implemented by
the participating agencies, then such a schedule can be included in the Mitigation Banking
Instrument for this project, and can be used for this site. Otherwise, DWQ recommends that the
stream credit release schedule adhere to the Stream Mitigation Guidelines.
Please feel free to contact Eric Kulz or me at [phone] if you have any questions regarding this
project or our comments.
Sincerely
t?
Cyndi B. Karoly, Program Manager
401 Oversight and Express Review Program
Cc: File Copy (Eric Kulz)
Tammy Hill
Daryl Lamb - WSRO
Central Files
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone [phone] / Fax [phone]
Internet: http://h2o.enr.state.nc.us/ncwetlands
o One
N Carolina
Naturally
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
9 North Carolina Wildlife Resources Commission 02
Richard B. Hamilton, Executive Director
MEMORANDUM
TO: Mr. Andrew Williams, Raleigh Regulatory Field Office
U.S Army Corps of Engineers
ai ...?
FROM: Shari Lry ant, Fie r on Region Coordinator
Habitat Conservation Program
DATE: 27 April 2007
SUBJECT: Cripple Creek Mitigation Bank, Restoration Systems, LLC, Alamance County, North
Carolina. Action ID No. SAW-2007-01188-201
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) have reviewed the
subject document and we are familiar with the habitat values of the area. An on-site visit was conducted
on 23 March 2007.
Restoration Systems, LLC proposes to establish the Cripple Creek Stream and Wetland
Mitigation Bank. The proposed mitigation bank is located on a 19.1 acre portion of a farm used for
grazing horses and hay production. The proposed work includes restoring approximately 4,300 linear feet
of stream channel using Rosgen methodologies, enhancement (level II) of approximately 147 linear feet
of degraded stream channel, establishing vegetated buffers on both sides of the stream channel,
restorating 7.1 acres of riparian wetlands, and enhancement of 2.1 acres of wetlands. Over 19 acres of
woody vegetation will be planted, including 9.2 acres of wetland community and approximately 10 acres
of a non-wetland riparian community. A conservation easement will be prepared to protect the Bank site
in perpetuity. The purpose of the work and objective of the Bank is to remove non point sources of
pollution associated with agricultural activities, reduce sedimentation, re-establish stream stability,
promote floodwater attenuation, improve aquatic and terrestrial wildlife habitat, and provide
compensatory mitigation for impacts resulting from future permitted projects.
The Bank includes unnamed tributaries to Boyds Creek in the Cape Fear River basin. There are
.no records for the federal or state listed species in these unnamed tributaries or Boyds Creek; however,
there are records for the state threatened Carolina fatmucket (Lampsilis radiata conspicua) and the state
significantly rare Eastern creekshell (lrllosa delumbis) in adjacent watersheds. The applicant indicates
the federal species of concern and state endangered Carolina creekshell (VIllosa vaughaniana) and yellow
lampmussel (Lampsilis cariosa) have potential habitat within the Bank and proposes to conduct a survey
to determine if either of these listed mussel species are present in the streams or immediately downstream
of the Bank.
Mailing Address: Division of Inland Fisheries • 1721 Mail Service Center - Raleigh, NC 27699-1721
Telephone: [phone] - Fax: [phone]
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Page 2
27 April 2007
Cripple Creek Mitigation Bank
Action ID No. SAW-2007-01188-201
This site has the potential to be a good stream and wetland restoration site. The proposed stream
restoration, enhancement, and preservation activities will benefit water quality and aquatic and terrestrial
wildlife habitats. We offer the following comments and recommendations regarding the Prospectus and
Mitigation Plan.
1. The Prospectus (#7) and Mitigation Plan (Section 1. 1, pg. 1) discuss excluding livestock from
streams, stream banks and floodplains; however, there are no details in the Mitigation Plan
regarding how livestock will be excluded. Please include details on the method (e.g., fencing) to
be used to exclude livestock from the mitigation bank.
2. It is unclear whether livestock crossings will be installed across any of the stream or wetland
mitigation areas. If livestock crossings are proposed, these should be detailed in the Prospectus
and Mitigation Plan including location, type of crossing, and any exclusionary fencing. If
livestock crossings are proposed, generally, we prefer the use of geo-textile fabric and rock to
stabilize the stream bottom rather than concrete. Fencing that is permanently installed across a
stream can trap debris and require maintenance. Instead, we suggest that cable is installed at the
crossing to prevent livestock from accessing the crossin& When the livestock need to cross the
stream, these cables can be detached and stretched across the stream to the fencing on the
opposite stream bank. This allows the livestock to cross and limits access to only the crossing.
Once the livestock have crossed, the cables can be reattached to the fencing to prevent livestock
from accessing the crossing.
3. A portion of the stream channel will be constructed on a new location within the adjacent
floodplain (Mitigation Plan, Section 5.1.1, pg. I3). Where feasible, we encourage the applicant to
remove substrate material from the existing channel and to use this substrate material in the new
channel.
4. The applicant proposes an accelerated credit release schedule (Prospectus #7; Mitigation Plan,
Section 7.2, pg. 20). While we recognize the North Carolina Ecosystem Enhancement Program
(NCEEP) has a credit release schedule that differs from the one in the Stream Mitigation
Guidelines, to our knowledge, all private mitigation banks adhere to the credit release schedule
detailed in the Stream Mitigation Guidelines (April 2003). Therefore, we feel the credit release
schedule for this Bank should be consistent with the current Stream Mitigation Guidelines (April
2003). The NCWRC would support an interagency discussion regarding a potential revision to
the current credit release schedule detailed in the Stream Mitigation Guidelines (April 2003).
5. The applicant intends to conduct studies to determine if listed mussel species may be present in
the Bank streams or immediately downstream (Mitigation Plan, Section 8.2.2., pg. 22). We
recommend any surveys be conducted by biologists with both state and federal endangered
species permits.
Thank you for the opportunity to comment on this project. If we can provide further assistance,
please contact our office at [phone].
ec: Ryan Heise, WRC
Corey Oakley, WRC
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Williams, Andrew E SAW
From: [e-mail]
Sent: Friday, April 27, 2007 9:39 AM
To: Williams, Andrew E SAW
Cc: [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]
Subject: Cripple Creek Mitigation Bank
April 27, 2007
Andy,
This provides informal comments on the proposed Cripple Creek Stream and
Wetland Mitigation Bank in Alamance County. I say informal because the
thoughts are mine, but represent the positions I would recommend to Pete
Benjamin, our Field Supervisor.
I have reviewed the Mitigation Prospectus and Mitigation Plan, both
dated March 2007. I also attended the site review on March 23, 2007.
The bank site includes approximately 19.1 acres with 3,782 linear feet
of stream characterized as an unnamed tributary to Boyd Creek which is
within the Cape Fear River Basin. The project site serves a watershed
of four-tenth of a square miles (256 acres). The plan calls for stream
restoration and Level II enhancement of 4,300 and 142 linear feet,
respectively. This would create 4,357 stream mitigation units. The
effort also involves riverine wetland restoration and enhancement of 5.9
acres and 1.5 acres, respectively. Non-riverine wetland restoration and
enhancement would occur on 1.2 and 0.6 acres, respectively. Overall,
the bank sponsor seeks 8.15 wetland mitigation units.
Bank Location in Landscape
The Service notes that the project area flows directly into a downstream
impoundment. While the bank seeks to improve water quality and enhance
flood attenuation, these benefits in Boyd Creek and Haw River watershed
will probably continue to be influenced more by the impoundment and any
release schedule from the dam. There would appear to be limited
opportunities for upstream mitigation of aquatic organisms from below
the dam or downstream migration from the bank site to Boyd Creek and
beyond. However, I recognize that there are opportunities to establish
on-site habitat for wildlife and aquatic organisms. While the
impoundment limits the geographic scope of benefits derived from the
bank, at this time I do not think the impoundment precludes
establishment of the proposed bank.
Stream Restoration/enhancement
The stream restoration plan (Section 5.
meandering stream. Based on my limited
stream restoration and enhancement, the
others on the MBRT may be able to make
aspect of the bank.
1) seeks to restore a stable
d knowledge of the finer points of
plan seems adequate. I believe
more informed comments on this
Wetland Restoration/enhancement
The plan states (p. 5) that reforestation with hardwood species is
proposed over 19.1 acres of the bank, including areas of pastureland and
disturbed forest. The target plant communities are Piedmont alluvial
forest and dry-mesic, oak-hickory forest. The area of restored wetlands
would be 9.2 acres. The plans for wetland restoration/enhancement
(Section 5.3) and vegetation planting (Section 5.4) seem adequate.
Vegetative Success Criteria
one of my concerns regarding wetland restoration is for quantitative
criteria to ensure that a stable, climax, plant community can become
established on the site. These are usually addressed as the vegetative
success criteria. The prospectus states (p. 5) that the proposed credit
release schedule would apply only if Restoration Systems documents
"acceptable survival and growth of planted vegetation." I certainly
support this broad principle, but, as always, the devil is in the
details.
In recent years, I have tried to distill my ideas on restoring wetland
plant communities down to five points which are:
First, there should be a list of the preferred species. The current
plan uses the term "characteristic," and this is acceptable. The
characteristic species are those that should dominated in the mature,
climax community. These would be primarily trees, but shrubs may be
included. Then, by definition, every other species within the same
category (such as woody vegetation) is non-preferred. For some reason,
folks seem to have a problem with this either-or breakdown and often
want a long list of categories, e.g. preferred planted, preferred
non-planted, and on and on.
Second, the restoration process can plant some, most, or, all of the
preferred species, but overall success should be based solely on: (1)
absolute abundance; (2) relative abundance; and, (3) diversity of the
preferred species.
Third, absolute abundance should apply only to the preferred species.
This is the criterion where the 260 stems/per acre applies. All the
preferred species (whether planted, naturally recruited, or existing
prior to restoration) can be considered in reaching this goal. The
current plan for Cripple Creek proposes (p. 18) an acceptable measure of
absolute abundance, 260 characteristics trees/acre in year five.
Fourth, relative abundance refers to the percent of stems of the
preferred species versus all other stems. This is a measure to ensure
that aggressive colonizers do not overwhelm the desirable,
characteristic species. I suppose it is possible that a restoration
site could have the required 260 stems/acre after five years, but if
there were over 1,000 stems of red maple, sweetgum, and pines, it would
not bode well for the long-term establishment of the target community.
Many years ago, there was a standard that at least half the plants in a
given category, such as woody stems, must be the approved/characteristic
species. In 2002, David Lekson proposed a standard for forested wetland
restoration which stated that no more than 20% of the tree stems on the
site could be undesirable invaders (that is, at least 80% of the trees
must be the desired species). More recently, a bank has proposed that
"undesirable species . . . should constitute less than 10% of the total
population." I'm not sure the term "should" represents a definite
success criterion. At this time, I can't provide justification for
fixed standard of relative abundance, but the range of 50-90% for the
characteristics species seem like a good starting point for discussion.
The real issue is limiting harmful competition during the very early
years of reforestation and this issue should be addressed by a
quantifiable measure of relative abundance.
Fifth, there should be a measure of species diversity which applies only
to the characteristic species. This criterion has been difficult to
define and I admit that after considering this for several years, I have
not been able to develop a practical, quantitative measure aimed at
ensuring that a diverse planting program actually is on track to produce
a diverse mature, wetland community. This can be approached by
requiring that a certain percentage of all planted trees survive for at
least five years. For example, if each species is planted in the
2
proportion desired in the mature community, then success could require
the survival of at least 80% of the plants in each species after five
years. However, this measure would not consider any natural recruitment
of characteristic species. Diversity can also be approached by
requiring that the percentage of each preferred species at the end of
the monitoring period does not deviate more than a certain amount for
the percent (such as 50%) it represented at the start of the restoration
effort. For example, if green ash constituted 10% all preferred species
at the start of the restoration effort (after any planting), this
species must represent between 5% and 15% of the preferred species at
the time success is declared. Each species required for success would
be considered separately. This approach would allow some species to
increase in abundance and some species to decline, but no species would
be allowed to disappear from the community.
The key concern here is to have a simple, effective measure to prevent a
restoration effort that seeks to establish 6-10 preferred species but
ends the monitoring period with only 2-3 species - even if the surviving
species have the required 260 stems/acre. In this regard, red maple and
sweetgum can be characteristic species for some natural communities and
should be counted toward success, but without a good species diversity
criterion, a community with only these two species could not constitute
successful restoration.
As a starting point for discussion, I would suggest that (at the very
least) vegetative success should require the presence of a certain
percentage of the characteristic species at the end of the monitoring
period. A recent commercial bank has proposed that vegetative success
would require 70% of target species should be present in viable
populations. This is a constructive proposal, but I think the
percentage of surviving species should be at least 80%. For example, if
the natural community typically has 10 dominant species, then at least 8
of these species must be present at the end of monitoring to achieve
success.
I believe that good criteria for relative abundance and diversity could
be helpful to the sponsor. These criteria could allow some less
desirable species, such as red maple and sweetgum, to contribute to
vegetative success. While these aggressive colonizing trees should not
be planted, they are part of the two target communities. If measures
are in place to limit their dominance of the site, they could be counted
toward establishing the desired communities. Such limited, natural
colonization could reduce costs for the bank sponsor - but only if their
abundance was carefully controlled.
Federally Protected Species
As noted in the plan (p. ii), no federally listed threatened and
endangered species are known to occur in Alamance County. Several
Federal Species of Concern (FSC) have been reported from the county. A
list of these species can be found on the Service website at
http://www.fws.gov/nc-es/cntylist/alamance.htm . A major concern would
be for mussels that are state-listed or FSC. I am pleased that the
sponsor intends to conduct "appropriate investigations" for listed
mussels within the bank streams and areas surrounding the bank. I
suggest that similar surveys be conducted for other state-listed species
or FSC.
Credit Release Schedule
A major concern with the current proposal is a request for the
accelerated sale of credits. The current plan would represent a
significant exception to the credit release schedule (CRS) given in the
interagency Stream Mitigation Guidelines (SMG) of April 2003. The SMG
allow for the sale of 25% of credits upon completion of all initial
physical and biological improvements. The current proposal (p. 20)
would increase this level to 55% after planting and delivery of
"as-builts."
At this time, I do not believe the Mitigation Bank Review Team (MBRT)
for the Cripple Creek Project should make this change in the CRS. There
is an issue of fairness to other private mitigation bankers who might
correctly claim that the rules have been changed after they were locked
into the prior CRS.
The CRS of the SMG provides an incentive to carefully plan and execute
the restoration. While I understand the concept of a performance bond,
I confess that I do not know the details of how these funds would used
to complete the work if the original bank sponsor could not. The use of
a performance bond to replace the incentives of a gradual release of
credits opens up a whole range of questions regarding how much work
would be needed to be completed at each stage of the monitoring period,
how much money would need to be available at each stage, how would the
work be contracted, how much money would need to be set aside to ensure
success of the first, or possibly second, remedial effort, etc. I do
not have the expertise to evaluate these issues.
For example, I notice that the financial assurance section of MBI
discusses two performance bonds. The first bond of $450,000 would be
for construction, planting, and all other activities necessary to
deliver the as-built drawings. After the as-built drawings are
delivered, a second bond of $125,000 would be provided to the Corps to
cover the cost of monitoring. I am uncertain whether the second bond
replaces the first bond, or is in addition to the first bond. If the
first bond is terminated after initial construction (which would be my
guess), are there financial assurances that work can be redone if
success criteria are not met? If the stream channel fails to perform as
planned or the planted vegetation does not survive, can the necessary
remedial actions be taken? If 55% of all bank credits have been sold at
essentially time 0 of the monitoring period, are there sufficient
incentives for the sponsor to make any necessary corrective actions over
the next five years?
Any change in the CRS should only be done as part of a formal change to
the interagency SMG. The original agencies that developed the SMG would
need to formally reconsider the CRS. These agencies could consider the
role of performance bonds in ensuring completion of the work if the
original bank sponsor was not able to achieve the success criteria.
There could be a consideration of holding the initial construction bond,
$450,000 for Cripple Creek, throughout the entire monitoring period.
There could also be a consideration of establishing a two-tier system
for private, mitigation bankers: one tier for those with an established
record of successful banks and another tier for those without such a
record. Bankers in the former tier, with an established record of
success, would be eligible for an accelerated CRS. However, it would
seem that bankers with successful banks should have the working capital
to comply with the current CRS. In any case, the standards for
established banker would need to be written out in detail before any
changes in the CRS are approved. The standards should be very specific
with virtually no "wiggle room." Otherwise, each new MBRT will spend
many hours hearing arguments on why the new bank should qualify for the
accelerated CRS. Any establishment of categories for private bankers
would certainly add extra work for the MBRT due to the need to carefully
review the details of past mitigation banks and evaluate their success
or failure.
The Service appreciates the opportunity to provide these comments on the
proposed banks. We look forward to the successful resolution of these
issues and continued involvement with the MBRT for this project.
Best regards, Howard
4
Howard F. Hall
U. S. Fish and Wildlife Service
Ecological Services
P. O. Box 33726
Raleigh, North Carolina 27636-3726
Ph: 919-856-4520, ext. 27
Fax: [phone]
e-mail: [e-mail]