20081235 Ver 1_Other Agency Comments_20090115

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N r S 2009
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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Coastal Management fA
Michael F. Easley, Governor James H. GregSOn, Director G 11 r? C
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December 23, 2008 ';s
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David Lekson _ y
Washington Regulatory Field Office
US Army Corps of Engineers
PO Box 1000
Washington, NC 27889
SUBJECT: Proposed Brice Creek Compensatory Wetland Mitigation Bank, Craven County,
North Carolina (DCM#200801-61)
Dear Ms Lekson:
The NC Diyision, of Coastal Management (DCM) received a Public Notice (SAW-2008-023210)
from the US Army Corps of.Engineers (Corps) requesting comments onthe'proposed Brice
Creek Wetland-Mitigation Bank (Bank). The proposed,bank is located on'a 617'acre property
located adjacent to the Croat an National Forest;'south of US 70 and east of Catfish Lake Road,
between New Bern and Havelock. The Bank Sponsor proposes to operate the bank to
compensate for losses authorized by applicable Federal and State regulatory approvals. -As
proposed, an estimated 554 acres of non-riparian, forested wetland restoration, enhancement and
preservation may be realized through the proposed project.
The proposed project site is within North Carolina's coastal zone. The proposed bank may
require consistency review from DCM prior to the Bank's establishment if the Bank's operation
will have a "coastal effect"1. The potential for DCM consistency review will also entail the
consideration of the method used by the Corps to approve the project and how the Sponsor
proposes to implement the Bank. Consequently I recommend that you and/or the Sponsor
contact me on the necessity for consistency review before the proposed Bank is either approved
by the Corps or implemented by the Sponsor.
The Brice Creek Wetland Mitigation Bank Prospectus (Prospectus) is silent on critical
"accounting" methodology for determining how the wetland mitigation credits would be counted
and used. These "accounting" concerns need to be addressed before the Bank is implemented.
Below are,the comments of North Carolina Division of Coastal Management (DCM).
' Please see 15 CFR 930.11
400 Commerce Avenue, Morehead City, North Carolina 28557-3421
Phone_ 252-808-28081 FAX: [phone]Internet: www.nccoastalmanagement.net
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Compensatory mitigation is technically an option of last resort. However, there appears
to be no incentive in the Bank proposal for a developer to pursue on-site mitigation
versus off-site mitigation. To provide an incentive for developers to design their projects
in such a manner that off-site mitigation would truly be an option of last resort, a
mitigation "premium" should be added to any mitigation ratio when the Bank is used for
compensatory mitigation.
Mitigation banks can be an appropriate method for providing compensatory mitigation.
Nevertheless, mitigation banks must be designed to assure that there is a net environmental
benefit and should not detract from the goal of avoiding/minimizing habitat losses when
development projects are proposed. Thank you for your consideration of the North Carolina
Coastal Management Program.
Sincerely,
Stephen Rynas, AICP
Federal Consistency Coordinator
Cc: Doug Huggett, Division of Coastal Management
Maria Dunn, NC Wildlife Resources Commission
Molly Ellwood, NC Wildlife Resources Commission
Howard Hall, US Fish and Wildlife Service
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The Prospectus, on page 10, provides guidance for when the credits would be available
for purchase. Based on a review of the three criteria listed, it appears that mitigation
credits could be purchased from the Bank before the credits are actually created.
Potentially, this could allow a potential purchaser of wetland mitigation credits to
adversely impact wetlands before the mitigation credits would actually be available. If
that is the case, we recommend that the criteria for when mitigation credits can be
purchased to be revised to state that mitigation credits for an area may only be purchased
after the monitoring program has determined that the restoration success criteria for that
area has been achieved.
The Prospectus notes the existence of four areas, totaling 56 acres, that are apparently
fully functioning, will be preserved, and will not be counted as credits available for
purchase. Additionally, the mitigation table on page 10 shows a graduated methodology
for computing mitigation credits that takes into account restoration difficultly for
calculating credits. Nevertheless, the Prospectus has not fully evaluated existing habitat
values versus the restored habitat values for calculating mitigation credits. The
availability of mitigation credits should be based on the difference between existing
habitat values and the habitat values that would exist when the site is restored. At one
time the site was formerly natural habitat and some habitat value probably remains today.
I would recommend that an assessment be undertaken to formulate the available
mitigation credits based on the difference between the existing habitat value and the
projected value of restored habitat.
The two points below apply to the purchaser of mitigation credits and not to the Bank Sponsor.
Nevertheless the Bank should still operate in a manner that promotes on-site2 restoration for
projects that adversely impact wetlands. The use of a mitigation bank should be an option of last
resort.
0 The restoration of habitat value is scientifically challenging. It is also an inexact science.
Success rates, for a variety of complex reasons, are usually less than 100%. For example
newly restored habitat may not completely mimic the habitat lost because of differences
in site characteristics. It also may take many years, if not decades, for restored sites to
become fully functioning on a self sustaining bases. Furthermore, the lost habitat, even if
it is restored in another location, represents an incremental and cumulative loss of habitat
function to the area were the habitat was lost. Incremental cumulative habitat losses can
have adverse effects of habitat areas that may not have been directly impacted by a
proposed project. Section 15A 07M 0700 of Coastal Area Management Act states:
"Coastal ecosystems shall be protected and maintained as complete and functional
systems by mitigating the adverse impacts of development as much as feasible by
enchancing, creating, or restoring areas with the goal of improving or maintaining
ecosystem function and areal proportion." To assure that the goal of no net loss to
habitat values is achieved, to the maximum extent practical, a restoration "premium"
should be added for any projects that utilize mitigation banks for compensatory
mitigation as a means of partially alleviating these types of incremental cumulative
losses.
"On-site" in this case does not refer to the Mitigation Bank, but to the location of the site creating the adverse wetland impact.
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