20081742 Ver 1_EPA Comments_20081216

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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" ATLANTA FEDERAL CENTER
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December 8, 2008 DEC 1 6 2008
Mr. Thomas Brown DENR - WATER QUALITY
WETLANDS AND STORMWATER BRANCH
Raleigh Regulatory Field Office
U.S. Army Corps of Engineers
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Subject: Godwin Bay Mitigation Bank: May 2008 Draft Prospectus
Dear Mr. Brown:
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This letter is in response to the public notice for the Godwin Bay Mitigation
Bank, issued November 20, 2008. Restoration Systems, LLC (bank sponsor) proposes to
develop the Godwin Bay Mitigation Bank, west of Highway 50, approximately 4 miles
south of Benson, in Johnston County, North Carolina. The bank sponsor has submitted a
prospectus and mitigation plan for the site. The U.S. Environmental Protection Agency,
Region 4, Wetlands Regulatory Section (EPA) has reviewed the documents and has
comments for your consideration and the consideration of the project sponsor. In
general, we believe that the site has good potential for a mitigation bank. Our comments,
below, are divided into categories related to the two documents.
Prospectus
1. In general, the prospectus complies with most of the provisions of the April 10, 2008
Revisions to 33 CFR Parts 325 and 332 and 40 CFR Part 230 (2008 Mitigation Rule).
Missing from the prospectus are the following required information (See 33 CFR Part
332.8(d)(2)(v) and (vii)(B) and 40 CFR Part 230.98(d)(2)(v) and (vii)( B)).
• The proposed ownership arrangements and long-term management strategy for the
mitigation bank. Title 40 CFR Part 230.97(d)(2) and 33 CFR Part 332.7(d)(2) state
that a long-term management plan should include a description of the long-term
management needs, annual cost estimates for these needs, and identify the funding
mechanism that will be used to meet those needs.
• Assurance of sufficient water rights to support the long-term sustainability of the
mitigation bank. Considering that the site is bordered by ditches which could be
deepened, this could become a significant issue in the future.
In addition, the discussion concerning the site's ecological suitability does not provide
enough detail concerning "the physical, chemical, and biological characteristics of the
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bank site and how that site will support the planned types of aquatic resources and
functions." This information may be found elsewhere, perhaps in the mitigation plan.
However, the information is also required to be provided in the bank prospectus. EPA
prefers that references to aquatic resource type include the proposed North Carolina
Wetland Assessment Method (NCWAM) wetland type. The dichotomous key to
NCWAM wetland types may be found on the U.S. Army Corps of Engineers Web site at
http://www. saw.usace. army.mil/WETLANDS/Mitigation/2008-updates.html.
2. On Page 3 of the Prospectus, a five-year credit release schedule is proposed.
However, the 2008 Mitigation Rule requires greater than five years of monitoring for
forested wetland sites. The North Carolina Interagency Review Team (NC IRT) has
approved a seven-year credit release schedule for all mitigation banks which have a
forested wetland restoration component. The prospectus, Mitigation Banking Instument
(MBI), and Mitigation Plan for the Godwin Bay Mitigation Bank should be revised to
reflect seven years of monitoring and a seven-year credit release schedule, as follows:
MBI signed,
Delivery of financial assurances,
Mitigation plans approved,
Conservation easement recorded: 15%
As-builts submitted: 15% (30%)
First year success: 10% (40%)
Second year success: 10% (50%)
Third year success: 10% (60%)
Fourth year success: 10% (70%)
Fifth year success: 10% (80%)
Sixth year success: 10% (90%)
Seventh year success: 10% (100%)
We note that if hydrology is determined to be successful in the first five years, the IRT
may agree to discontinue hydraulic monitoring after Year five. Trees must be monitored
for a minimum of seven years.
3. The "General Provisions" portion of the prospectus does not completely conform to
the strawman MBI which is typically approved by the NC IRT.
4. Since this is a bank, and not an Ecosystem Enhancement Program (EEP) site, EPA
recommends that the term "wetland credit" be used throughout the mitigation plan and
MBI, and that the term "wetland mitigation unit" not be used.
Mitigation Plan
1. The proposed bank is a 77-acre portion of a larger active farm. The remainder of the
190 acres-plus will continue to be drained and farmed. EPA is concerned that the
adjacent intensive management may affect the mitigation site, particularly the large
drainage ditches which will remain on the southwestern edge of the site.
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2. It appears from recent aerial photography (Google Earth) that at least a portion of the
reference site (Figure 8) has been logged. The mitigation plan should clarify the location
of the reference site and provide a detailed description, including vegetative community
(relative age of stand and species present), hydrology, and soils. The NCWAM wetland
type of the reference site should also be provided.
3. Page 3 of the Mitigation Plan lists the incorrect U.S. Geological Survey Cataloguing
Unit (03020203), and should be corrected.
4. EPA recommends that the bank sponsor begin monitoring the reference site as soon as
possible (if it is found to be an appropriate reference), in order to help determine the
appropriate hydroperiod for the mitigation site. Using an approved reference hydroperiod
is preferable to using a straight percentage, such as 12.5% of the growing season. It is
likely that the reference hydroperiod may be higher than 12.5%.
5. On Page 10 (Sections 4.1.1 and 4.2), the Mitigation Plan states that the hydrologic
criterion for the area affected by open ditches is proposed to be 5%. Although this still
represents jurisdictional hydrology, if the hydroperiod is not sufficiently similar to
undrained areas or the reference site hydroperiod, fewer credits should be allowed. The
drained area should not get a similar amount of credit per acre as the restored, undrained
areas on the site.
6. On Page 11 (Section 6.0) and where appropriate throughout the Mitigation Plan, the
NCWAM wetland type should be included.
7. On page 12, the Mitigation Plan (Section 6.2) states that shallow depressions will be
constructed throughout the restoration site. However, EPA recommends that the
excavation of depressions be limited or omitted from the mitigation plans. We believe
that scarification or ripping of the soil surface will provide ample microtopography for
the restored site (as proposed in Section 6.5). Significant areas of open water on the site
may not receive mitigation credit.
8. Section 6.4 on Page 12 of the Mitigation Plan states that certain non-critical ditch
sections may remain partially open to enhance habitat diversity and hydrologic storage.
EPA questions the need to provide deep open water areas in the site, and prefers that all
ditch segments be filled. EPA would not recommend any mitigation credit for
purposefully-constructed open water areas.
9. EPA believes that the proposed tree and shrub species proposed on Page 13 (Section
6.6. 1) are acceptable. Vegetative success should be based upon canopy tree species.
10. Section 7.0 on Page 14 should be revised to reflect a seven-year monitoring effort.
As stated above, if hydrology is determined to be successful in the first five years of
monitoring, the IRT may approve discontinuance of hydraulic monitoring after year five.
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11. As stated above, the hydrology success criteria (Section 7.2) should be determined
after adequate and appropriate monitoring of the approved reference site. It is likely that
the drained areas will receive less mitigation credit than the undrained areas.
12. For the Vegetation Success Criteria (Section 7.4), the success criteria should be
based upon survival and growth of the canopy tree species. We recommend that the
following requirements be included in the mitigation plan:
• Demonstrated density of planted tree species to meet or exceed 320 per acre at the end
of three years (post-planting), 260 trees per acre at the end of five years, and 210 (7-
year-old) character canopy tree species per acre at the end of seven years. The IRT
may allow for the counting of acceptable volunteer species toward the 210-tree per
acre density upon the review and evaluation of the annual monitoring data.
• No single volunteer species (most notably red maple, loblolly pine, and sweet gum)
will comprise more than 20 percent of the total composition at years three, five, or
seven. If this occurs, remedial procedures/protocols outlined in the contingency plan
will be implemented. During years three, five, and seven, no single volunteer species,
comprising over 20 percent of the total composition, may be more than twice the
height of the planted trees. If this occurs, remedial procedures outlined in the
contingency plan will be implemented.
• If, within the first three years, any species exhibits greater than 50 percent mortality,
the species will either be replanted or an acceptable replacement species be planted in
its places as specified in the contingency plan.
Thank you for the opportunity to comment on this project. We look forward to
the field meeting on this site. Please contact Kathy Matthews at 919-541-3062 with any
questions or comments.
Sincerely,
Thomas C. Welborn
Chief
Wetlands, Coastal and Oceans Branch
cc: USFWS, Raleigh
NCWRC, Creedmoor
NCDWQ, Raleigh
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