20041235 Ver 1_Other Agency Comments_20081114

SAW-2008-02841 Privateer Farms Stream and Wetland Mitigation Bank 20(? t 236
Subject: SAW-2008-02841 Privateer Farms Stream and Wetland Mitigation Bank
From: Amy Simes <[e-mail]>
Date: Fri, 14 Nov 2008 11:31:01 -0500
To: [e-mail]
CC: Scott McLendon <[e-mail]>, Bill Laxton <[e-mail]>,
Manly Wilder <[e-mail]>
Mr. Mickey Sugg,
The North Carolina Department of Environment & Natural Resources offers the
attached documents related to the NCDOT Umbrella Mitigation Banking Instrument
(UMBI) and the addendum for the Privateer Farms Stream and Wetland Mitigation
Bank. Comments are attached from the Division of Coastal Management, the Division
of Water Quality, and the Ecosystem Enhancement Program. The Division of Marine
Fisheries has no comments, and the Wildlife Resources Commission will be submitting
comments separately.
Most of the comments apply to the UMBI or to both sites, so the entire documents
are being submitted to both you and David Lekson.
In addition, the name of this department should be corrected on pages 1 and 2 and
the signature page of the UMBI and abbreviated as NCDENR on page 13.
Please let me know if you cannot open the attachments or need any additional
information.
Sincerely,
Amy Simes
Amy M. Simes, PE <Amy.Simes(a,ncmail.net>
Liaison for Transportation
DENR
Office of the Secretary
DCM Proposed UMBI Comments.pdf Content-Type: application/pdf
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Content-Encoding: base64
DWQ UMBI comments.pdf Content-Type: application/pdf
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EEP Comments on DOT UMBLpdf Content-Type: application/pdf
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I of 1 11/14/2008 1:05 PM
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins. Director
Division of Water Quality
November 11, 2008
Mr. Scott McLendon
Department of the Army
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, NC 28402-1890
Re: NCDOT Proposed Umbrella Mitigation Banking Instrument and Addenda
SAW-2008-02841
Dear Mr. McLendon:
The Division of Water Quality (DWQ) 401 Oversight and Express Review Permitting Unit has
reviewed the NCDOT Umbrella Mitigation Banking Instrument (UMBI) and two proposed bank
Addenda provided with the USACE Public Notice on October 15, 2008. Our comments are as
follows.
Comments on the NCDOT UMBI:
We support the stated purpose of the Umbrella Bank: "to manage the credits available on
NCDOT's legacy mitigation sites."
The wording in 2.A. is acceptable in regards to Geographic Service Area (GSA) for the Umbrella
Bank. Further comments regarding the GSA for the proposed UMBI Addenda included in the
Public Notice are presented below.
Section 3.C. notes that the expected longevity of the UMBI is such that new guidance regarding
wetland mitigation ratios may be developed over time. It should be noted that the same will
apply to stream mitigation ratios if guidelines are developed which supersede the 2003 North
Carolina Stream Mitigation Guidelines.
In the first line of Section 3.C., "or" should be "for".
The credit release schedules in Section 4 reflect those most recently approved by the NC
Interagency Review Team (IRT) for mitigation projects that have already been implemented.
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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,ne.us/ncwetiands
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
DWQ Comments Re: NC Department of Transportation UMBI
Page 2 of 3
Comments on the Pronosed Addenda:
The Division of Water Quality (DWQ) 401 Oversight and Express Review Permitting Unit and
Transportation Permitting Unit has reviewed the proposal to incorporate two mitigation sites,
Privateer Farm Mitigation Site and Croatan Wetland Mitigation Bank, into the above-referenced
NCDOT Umbrella Mitigation Bank.
DWQ agrees with the language in the NCDOT UMBI 2.A. stating that the GSA "is the
designated area wherein a bank can reasonably be expected to provide appropriate compensation
for impacts to streams and wetlands." The proposed GSAs for both Privateer Farm Mitigation
Site and Croatan Wetland Mitigation Bank extend beyond our definition of reasonable. We
support the IRT's current stance that, in most cases, the 8-digit hydrologic unit (cataloging unit
or CU) can reasonably be expected to accomplish this compensation, provided that the mitigation
occurs within the same physiographic region and ecoregion as the permitted impact. State laws
(e.g. SL 2008-152, An Act to Promote Compensatory Mitigation by Private Mitigation Banks)
and rules (e.g 15A NCAC 2H .0506(h)(8-10)) repeatedly express a preference for mitigation to
occur within the same river basin and CU as the associated impact. The Guidance on the Use of
Compensatory Mitigation in Adjacent Cataloging Units (public notice available at
http://h2o.enr.state.nc.us/ncwetlands/documents/MaiIingListMailoutFebruary2008.doc) provides
suggestions for increased mitigation ratios to be applied to in-basin mitigation occurring in a CU
adjacent to that in which the impact occurred. We continue to support the use of mitigation
beyond the service area on a case-by-case basis, if it is determined by the State that such
mitigation will adequately offset permitted impacts and if concurrence is reached among the IRT
agencies in this regard.
Based on information provided by NCDOT at the IRT meeting on October 9, 2008, we
understand that the credit types for Croatan will be updated to reflect those generated through a
method involving the NC Wetland Assessment Method, geospatial analyses, and field
verification. We support the use of the best available scientific information in determining the
types of aquatic resources present on the site, and will evaluate the updated types when the
amended credit table is presented.
We appreciate the opportunity to comment on the proposals and work cooperatively with the NC
IRT. Please feel free to contact Tammy Hill at [phone] or [e-mail] if
you have any questions regarding our comments or other issues related to this Umbrella
Mitigation Bank and its Addenda.
Sincerely,
Cyndi B. Karoly, Program Manager
401 Oversight and Express Review Program
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: htti):/ih2o.enr.state.nc.us/ncwetlands
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An Equal Opportunity/Affirmative Acton Employer - 50% Recyded/1 0% Post Consumer Paper
DWQ Comments Re: NC Department of Transportation UMBI
Page 3 of 3
cc: File Copy (Tammy Hill)
Matt Matthews, DWQ Wetlands and Stormwater Branch
Brian Wrenn, DWQ, Transportation Permitting Unit
Mr. David Lekson, USACE Washington Regulatory Field Office
Mr. Mickey Sugg, USACE Wilmington Regulatory Field Office
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.ne.us/newetlands
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To: Amy Simes
From: Bill Gilmore
Date: November 12, 2008
Subject: Comments on NCDOT Umbrella Mitigation Banking Instrument (Corps Action ID: SAW-
2008-02841)
The Ecosystem Enhancement Program (EEP) appreciates the opportunity to provide feedback on the
subject document. Staff has reviewed the draft document and offers the following comments.
As noted in the Public Notice, EEP currently provides project and credit management of NCDOT's
legacy mitigation sites that had unused mitigation credits at the time of EEP's creation. As such, the
formation of a new NCDOT Umbrella Mitigation Banking Instrument (UMBI) will require that a
number of these legacy sites be transferred back to NCDOT in order to be included into the UMBI. The
current UMBI suggests that the entire project would be included in the UMBI and that the project would
be transferred to NCDOT prior to official inclusion. EEP and NCDOT have developed processes and
procedures for transferring both credits and projects between agencies. EEP and NCDOT utilized these
procedures for the recent case by case proposals submitted by NCDOT. EEP recommends that the
UMBI recognize these procedures to ensure that appropriate sites are proposed and included accurately
within the UMBI. At this time, no transfers from EEP to NCDOT have occurred for inclusion in the
UMBI, though multiple transfers occurred for NCDOT's case-by-case permit application proposals, and
discussions have been initiated on transfers for Privateer and Croatan. EEP supports the concept of
including projects under the UMBI; however, multiple details will need clarification.
Legacy Credits Owned by Multiple Mitigation Programs
In a coordinated effort with NCDOT to reduce surplus associated with legacy sites, some credits
associated with some legacy sites have been purchased by EEP's other In-Lieu Fee mitigation programs
for usage under those programs. Additionally, many of the credits associated with legacy sites were
debited prior to the formation of EEP by NCDOT or debited by EEP under EEP's mitigation program
for NCDOT. NCDOT has also stated its intent for EEP to retain legacy credits that are expected to be
debited within the Cataloging Unit for future EEP application toward future mitigation needs. The
UMBI document is unclear on what effect, if any, the UMBI would have on these credits. EEP believes
that the documentation suggests that only the remaining unused credits would be submitted for use in the
UMBI. Similarly, it would appear that any legacy credits transferred to EEP or held by EEP would be
categorized as released under the UMBI. EEP recommends that these issues be clarified. EEP also
recommends that the ledger maintained by NCDOT under the UMBI clearly show the quantities,
mitigation types, and credits transferred to EEP as a line item within the proposed ledger for each UMBI
mitigation site. This would ensure that there is no possibility of EEP and NCDOT utilizing credits
located within the other agency. Likewise, EEP recommends that EEP show transfers as a line item
from EEP's mitigation ledgers to record any quantities, mitigation types, and credits transferred to
NCDOT. EEP has utilized this procedure for the case-by-case transfers effectively and successfully.
Management of Project Sites
The UMBI states that NCDOT would be responsible for management of the project sites and credits
included in the UMBI. However, in other locations within the document and in some informal
discussion with NCDOT, staff and the UMBI have mentioned only the management of project credits.
The majority of the document appears to indicate that NCDOT would be responsible for all project
management such as submitting reports, monitoring, maintenance, stewardship etc. EEP requests that
the entity responsible for management be clarified. EEP supports the complete transfer of project
management to NCDOT for projects included under the UMBI. It appears that not doing so would have
significant effects on EEP's current management protocols under the Tri-Party Memorandum of
Agreement.
Legacy Mitigation Sites and New Sites
The UMBI's primary purpose is to manage the credits available on NCDOT's legacy mitigation sites.
Most if not all legacy mitigation sites have been constructed. The UMBI, however, contains language
throughout the document on procedures for adding new projects that are neither legacy nor constructed.
EEP seeks clarification on whether there is the intent or need to include procedures for the inclusion of
new non-legacy sites.
Applicants Other Than NCDOT
The Public Notice states the "mitigation bank may be considered one of a number of practicable
alternatives to applicants on a case-by-case basis" for mitigation. This statement seems to imply
applicants other than NCDOT. EEP seeks clarification on whether the UMBI will authorize sale of
credits to non-NCDOT applicants.
Mitigation Ratios
The language used to describe the section on mitigation ratios (page 7) of the UMBI contains word
usages that conflict with current understanding of the definitions. EEP recommends editing the current
text to reflect the current agreed-upon terminology used to describe credit ratios and credit calculations.
The table below summarizes the current usage:
WETLAND CREDIT RATIOS (Mitigation Types: Riparian, Nonriparian, Coastal Marsh)
Restoration Types - Credit Ratios: Restoration Equivalent Types - Credit Ratios:
Wetland Restoration 1:1 Wetland Enhancement 2:1
Wetland Creation 3:1 Wetland Preservation 5:1
Using this information, the text could be modified as follows:
Credit Ratios
1 acre of Restoration is equal to 1 restoration credit
3 acres of Creation is equal to 1 restoration credit
2 acres of Enhancement is equal to 1 restoration equivalent credit
5 acres of Preservation is equal to 1 restoration equivalent credit
Note that restoration equivalent credits can only be used to offset mitigation requirements beyond the
one-to-one ratio of impact acres to restoration credits.
Geographic Service Areas
The UMBI Addendums for Privateer and Croatan include proposed Geographic Service Areas. The
UMBI proposes the utilization of Level III Ecoregion boundaries. EEP supports the utilization of
Ecoregion information as supporting information for justifications on Geographic Service Areas, but
2
does not support the utilization of the Omernik Ecoregion boundaries for the actual Geographic Service
Areas. EEP has reviewed the application of the Omernik Ecoregions multiple times for service-area
boundary usage and have found it impractical and exceedingly difficult to apply in the field. The
Omernik data was compiled at a 1:250,000 scale, which is extremely crude when examining in-the-field
conditions and applications to specific project sites. Attempts to determine the mapped boundaries in
the field proved to be subjective and open to debate. As such, NCDENR, USACE, and NCDOT jointly
adopted the Level III Ecoregion information into a simplified and easy to apply Ecoregion map utilizing
Omernik data and County data which has been used to define High Quality Preservation (HQP)
Geographic Service Areas and is still in use. EEP recommends that if Level III Ecoregions usage is
desired, that consideration be given to the Geographic Service Areas already in use by the USACE,
DENR, and NCDOT for HQP mitigation sites. This approach would be more consistent with current
procedures and lead to less confusion in the future. However, EEP also recognizes that the Cataloging
Unit is the preferred service area for most projects and would recommend that larger than CU
Geographic Service. Areas be categorized as combinations of whole rather than partial Cataloging Units.
Partial Cataloging Unit service areas have been utilized in the past for the Neu-Con Mitigation bank, and
determining whether or not mitigation credits associated with this bank might be applicable to potential
impacts has been very difficult and has led to problems in determining whether additional mitigation
was or was not needed to address NCDOT's projected mitigation needs. Since inaccurate long-range
projections can lead to surplus production of mitigation, and since the proposed UMBI is believed to be
intended to address surplus mitigation associated with legacy mitigation, it seems that partial Cataloging
Unit Geographic Service Areas would be undesirable.
Privateer and Croatan Mitigation Types and Credits
The Privateer and Croatan mitigation sites were attached as addendums to the proposed UMBI. While
neither of these sites has officially been transferred back to NCDOT for the UMBI, EEP and NCDOT
have discussed their inclusion in the UMBI and EEP supports their inclusion.
The mitigation classes described in the addendum do not reflect the current mitigation types recognized
by NCDENR, EEP, and USACE. Specifically, the document describes the wetland communities as
riverine and nonriverine wetlands. While they certainly do contain such wetlands, USACE and
NCDENR issued guidance to avoid the usage of those terms for mitigation classes, and instead required
the use "Nonriparian Wetland" and "Riparian Wetland" to describe the wetland mitigation classes. This
was done because riparian wetlands may contain both nonriverine and riverine wetland communities,
and the application of nonriverine as a mitigation class was being confused by applicants and agencies
alike. EEP recommends that the classes reflect the current mitigation classes of Riparian and
Nonriparian.
The Croatan UMBI Addendum recommends that the amount of available current mitigation classes be
revised to reflect NCWAM wetland types. NCWAM wetland types are not currently recognized as
mitigation classes by state or federal agencies, though there have been proposals to create new
mitigation classes for mitigation banks that are roughly based on NCWAM wetland types. Currently,
these new mitigation classes have not been approved, and until approved EEP does not support their
usage. Furthermore, the effect of utilizing NCWAM categories on these "available credits" raises the
question of which credits within a site would need to be recategorized, since the "unavailable" credits
would have to be distinguished in the field and delineated. Furthermore, discussions with USACE and
DWQ during development of the proposed mitigation classes indicated that historical sites would be
allowed to continue to be used within the current wetland-mitigation-class framework. Consequently,
EEP recommends that these sites continue to be applied within the current regulatory framework.
The credit calculations also appear to have inaccuracies as to the total amount of constructed mitigation.
Specifically, the credits shown for Croatan do not match the records indicated on EEP's database.
Croatan and Privateer Credits Potentially Not Available for UMBI
Not all of the credits listed in the project are available to be submitted under the UMBI. Many of these
credits have already been debited and applied to historical permits or sold to other mitigation programs,
or are not expected to be available after consideration of NCDOT within Cataloging Unit mitigation
needs under the Tri-Party MOA. For example, currently Privateer is not expected to have any remaining
stream credits after the above are accounted. How the proposed stream credit releases affect the existing
mitigation credits needs to be clarified, particularly since the stream component may not be included
under the UMBI. Currently all of the credits are released and eligible for debiting but are not guaranteed
credits (meaning the final credits are scheduled to be determined at closeout). EEP recommends that
the specific credits intended for inclusion into the UMBI be identified and transferred to NCDOT
according to agreed-upon protocols prior to official inclusion into the UMBI.
4
A' LT-WA
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Coastal Management
Michael F. Easley, Governor James H. Gregson, Director William G. Ross Jr., Secretary
MEMORANDUM
TO: Amy Simes, Transportation Liaison
NCDENR, Office of the Secretary
CC: Doug Huggett, DCM Major Permit and Consistency Manager
FROM: Steve Sollod, DCM Transportation Project Coordinator r
DATE: November 4, 2008
SUBJECT: US Army Corps of Engineers (USACE) Public Notice:
Proposed Umbrella Mitigation Banking Instrument (UMBI) by the NC
Department of Transportation.
The North Carolina Division of Coastal Management (DCM) has reviewed the USACE
public notice issued on October 15, 2008, regarding the establishment of an Umbrella
Mitigation Banking Instrument (UMBI) by the NC Department of Transportation. We
appreciate the opportunity to comment on the proposed umbrella bank and the two mitigation
sites that NCDOT has proposed to incorporate into the bank. Our comments should be
relevant to the use of the proposed umbrella mitigation bank for projects located within the
20 CAMA coastal counties that may be considered for compensatory mitigation from these
sites. We offer the following comments:
General Comments
It is DCM's policy to require that adverse impacts to coastal lands and waters be
mitigated or minimized through proper planning, site selection, compliance with
standards for development, and if necessary, restoration, creation, or enhancement of
coastal resources. Proposals to mitigate losses of coastal resources are considered
only after all other reasonable means of avoiding or minimizing such losses have
been exhausted. Any approved mitigation proposals associated with a project
permitted under the rules of the Coastal Resources Commission (CRC) shall become
a condition of the CAMA permit.
Many CAMA Land Use Plans contain specific restrictions on compensatory
mitigation, which could potentially limit the use of mitigation banks either within or
outside the jurisdictional area governed by the Land Use Plan. DCM recommends
that CAMA Land Use Plans be reviewed for those projects within the CAMA
counties that may be considered for compensatory mitigation by the specific
mitigation sites within NCDOT's umbrella mitigation bank.
400 Commerce Avenue, Morehead City, North Carolina 28557
Phone: [phone] FAX: [phone] Internet: www.nccoastalmanagement.net
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USACE Public Notice
NCDOT Proposed UMBI
Proposed Bank Site Comments
Page 2
The expansive service areas that are proposed for the Privateer Farm and Croatan
mitigation sites are not reasonable. Unless there are compelling reasons to extend the
service area, compensatory mitigation should be limited to the impacts occurring
within the same 8-digit cataloging unit that the mitigation sites are located. Service
areas within the same Level III ecoregion and river basin that extend beyond the 8-
digit cataloging unit may be considered if there are demonstrated watershed-based
functional benefits. Debits for projects with impacts beyond the 8-digit cataloging
unit are appropriately addressed on a case-by-case basis during the CAMA permitting
and consistency review process.
• It is understood that both the Privateer and Croatan sites have been debited previously
for compensatory mitigation due to impacts relating to prior projects. The proposal
contained in the public notice did not include existing debit ledgers and these should
be including in the proposal to establish a baseline for available mitigation.
• A portion of the Croatan Mitigation Site was intended to provide compensatory
mitigation for unavoidable wetland impacts associated with the proposed Havelock
Bypass, R-1015. Adequate mitigation for this project should be made available for
this project, which is currently in the planning process.
Specific Proposed UMBI Comments
• Terminology needs to be consistent when referring to the Umbrella Interagency
Review Team and the Bank Site Interagency Review Team. At times, the terms
Umbrella IRT or Bank Site IRT are simply referred to as the IRT and this creates
confusion. Separate distinct terms for each group should be used consistently
throughout the document.
• The NC Department of Environment and Natural Resources should be listed as a
signatory party to the UMBI, rather than the Division of Coastal Management,
Division of Water Quality, and the Division of Marines Fisheries separately.
If you or NCDOT has any questions or concerns about these comments, please contact me at
[phone] x230 or via e-mail at [e-mail]. Thank you for your
consideration of the North Carolina Coastal Management Program.