20081143 Ver 1_USACE Correspondence_20090309

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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF
Regulatory Division
Action ID No. SAW-200701188
Mr. Randy Turner
Restoration Systems, LLC
1101 Haynes Street, Suite 211
Raleigh, North Carolina 27604
Dear Mr. Turner:
March 6, 2009
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Reference is made to the Draft Mitigation Banking Instrument (MBI), revised prospectus,
final mitigation plan, and final design sheets for the Cripple Creek Mitigation Bank received on
March 3, 2009. The MBI indicates that you propose to restore approximately 6.9 acres of
wetlands and 4,265 linear feet of stream channel and enhance 1.9 acres of wetlands and 633
linear feet of stream channel within the proposed bank boundaries of 19.6 acres. The proposed
mitigation bank is located east of Roney-Lineberry Road, north of Woodbrooke Drive, south of
Deep Creek Church Road and west of North Fonville Road, in northeast Alamance County,
North Carolina, within the Cape Fear River Basin, Hydrologic Unit Code (HUC) 03030002.
Upon review, your MBI is considered incomplete. In our February 3, 2009 letter, which
also notified you that your submittal was incomplete, we informed you that your conservation
easement did not follow the conservation easement model located on the USACE, Wilmington
District website. We also discussed this issue in a February 9, 2009 meeting at the Raleigh Field
Office. In your March 3, 2009 submittal you stated that preparation of the financial assurances
and long term management documentation would be addressed as required by the USACE office
of Counsel. When you delivered the MBI on March 3, 2009, you stated that these items had been
discussed by Tara Allden of your office and Justin McCorkle, Assistant District Counsel,
USACE Wilmington. However, on March 5, 2009, we received information from the USACE,
Office of Counsel, informing us that the conservation easement was still not prepared as
required.
Furthermore, in a February 3, 2009 e-mail and during our February 9, 2009 meeting, we
discussed the need for additional information regarding approximately 10 acres of proposed
crawfish ponds, located in close proximity to the bank. Your March 3, 2009 submittal provided
only a memo from the property owner stating the wastewater from the ponds would not be
drained into the streams or conservation easement and that the ponds would not affect the
groundwater levels, within or adjacent to the conservation easement. This statement alone does
groundwater levels, within or adjacent to the conservation easement. This statement alone does
not adequately address the assurance of sufficient water rights to support the long term
management of the mitigation bank nor does it adequately address hydrologic trespass.
Additional information must be submitted. This information includes, but is not limited to,
proposed project plans and maps of the crawfish ponds, hydrological data such as the amount of
water required to sustain the ponds, the location(s) from which water will be obtained, the
method(s) for obtaining water, and the location(s) and method(s) of wastewater disposal from the
ponds.
Additionally, I have reviewed the submitted information and have noticed other issues
that need to be addressed. They include: 1) the proposed ownership arrangements, long term
management strategy and the long term water rights are addressed in the response to comments,
but are not included in the revised prospectus. 2) The sponsors name should be inserted into the
2nd line, on the first page of the Mitigation Banking Instrument. 3) The stream length described
on page 2 of the Mitigation Banking Instrument, under Mitigation Plan, paragraph 6, is not
consistent with the stream length described under Mitigation Plan, paragraph 7. 4) The Draft
Mitigation Banking Instrument does not provide accounting procedures. 5) The performance
bond should be structured in accordance with the Model Performance Bond included in the U.S.
Army Corps of Engineers, Regulatory Guidance Letter (RGL), Number 05-01. This RGL is
located on the Wilmington District website.
Please provide the information listed above within 30 days of the date of this letter.
Based on conversations with the Wilmington District Office of Counsel, a meeting at the District
Office in Wilmington is highly encouraged prior to proceeding with this bank. Upon receipt of
this letter, please contact me to discuss potential meeting dates. You may contact me at my
Raleigh Regulatory Field Office address, or telephone [phone] ext. 26.
Sincerely,
Andrew Williams
Regulatory Project Manager
Raleigh Field Office
Copies Furnished:
Mr. Eric Kulz
Stream Mitigation Review Coordinator
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Ms. Tammy Hill
Wetland Mitigation Review Coordinator
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Region 4 Wetlands Section
109 T.W. Alexander Drive
Durham, North Carolina 27711
Mr. Howard Hall
United States Fish and Wildlife Services
Raleigh Field Office
P.O. Box 33726
Raleigh, North Carolina 27636-3726
Ms. Shari Bryant
N.C. Wildlife Resources Commission
P.O. Box 129
Sedalia, North Carolina 27342-0129
Mr. Scott McLendon
U.S. Army Corps of Engineers
Wilmington District
Post Office Box 1890
Wilmington, North Carolina 28402-1890