Alternative (Flexible) Mitigation Options Proposed Rule - Revised

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Division of Water Quality

Alternative (Flexible) Mitigation Options Proposed Rule - Revised

NC Association of Environmental Professionals June 9, 2011

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Background

• Purposes

– Update rules due to required changes from statutes

– Put all buffer mitigation rules in one place for consolidation and better understanding

– Presented to WQC in January and September 2009 – Presentation to EMC in January 2010 on additionality

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Compliance with Executive Order 70

• Rules provide efficiency, clarity and consistency

• New rules enabled by state statute (G.S. 143-

214.20)

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Highlights of Proposed Rule from September 2009 WQC meeting

• Suggested changes

– Clarify location of mitigation [(e)]

• Lakes and Goose Creek – must be in watershed

• River basins – Two options

• Purchase credits from private bank [(c)]

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8 digit HUCs in Neuse and Tar-Pamlico Basins

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14 digit HUCs in Neuse and Tar-Pamlico Basins

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Highlights of Proposed Rule (cont.)

• Credits from stream mitigation sites [(k)] – Three options

• Add alternative mitigation options [(j)]

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Flexible Buffer Mitigation

• Stakeholder meetings held in 2009

– February 9, 2009 with 11 stakeholders present

• Focused on draft rules

– December 9, 2009 with 24 stakeholders present

• Focused on additionality

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Proposed Rule

• Enabled by G.S. 143-214.20

• “Construction of an alternative measure that reduces nutrient loading as well as or better than the riparian buffer that is lost”.

• Proposed rule implements this law

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Proposed Rule (cont.)

• Non-structural options

– Restoration or Enhancement of buffers on streams not shown on maps

– Coastal Headwater Stream Mitigation

– Preservation of streams and buffers (after WQC

comments in September 2009)

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Stream not shown on USGS or

County Soil maps

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Coastal Headwater Stream Mitigation Background

• Headwater stream restoration November 2005 policy of Corps of Engineers and DWQ

• Encourage restoration by filling ditches, etc. without channel excavation

• Site must have originally supported coastal headwater stream system

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Bay City Farm, Beaufort County - Coastal Headwater Stream mitigation

Before restoration

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Bay City Farm, Beaufort County - Coastal Headwater Stream mitigation

After restoration

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Proposed Rule (cont.)

• Structural options

• Other options

– Case by case after public comment

– EMC decision

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Construct Best Management Practices (BMPs)

• Construct to treat untreated stormwater in order to remove nutrients

– Constructed wetlands

– Bioretention facilities

– Infiltration devices

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Example of an Agricultural Best

Management Practice

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Example of an

Urban Best

Management Practice

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Proposed Rule (concluded)

• Riparian Buffer Mitigation Fees for EEP

– Continue existing fee schedule

– Provision for annual reevaluation based on

construction cost index factor

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Substantive changes made at request of Program Evaluation Division staff and

stakeholders

• Definitions

– Separate definition section (b)

– Combine and simplify mitigation options (c)

– Remove hierarchy of mitigation options except as

provided in state law (c)

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Substantive suggested changes by DWQ staff and Stakeholders

– Restoration: lack of woody stems or open canopy (b) (13)

– Enhancement: not restoration or preservation (b) (4)

– Preservation: closed canopy or dense woody growth (b) (12)

– Measurement of buffer – two options (g) (5)

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Substantive suggested changes by DWQ staff and stakeholders(cont.)

• Vegetation plan: at least five native species (not two) with no more than 25% of any one species (g) (7)

• Clarify need for perpetual conservation

easement

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Substantive changes made at request of WQC members at September 2009 and

November 2010 meetings

• Preservation of buffers (j) (2) (c)

– Need 1:1 restoration or enhancement – Conservation easement

– Stream shown on maps (j) (2) (C)

• 10:1 ratio

– Stream not shown on maps (j) (2) (B)

• 5:1 ratio

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Substantive changes made as result of stakeholder meetings

• Urban streams and narrower buffers (j) (2) (D)

– If do on-site stormwater management, can fully

or partially offset penalty for narrower buffers

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Substantive changes made as result of stakeholder meetings (cont.)

• Grazed wooded areas – (j) (2) (E)

– 2:1 ratio provided for livestock exclusion – Replanting when needed

– Document long term grazing

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Substantive changes made at request of WQC members (cont.)

• Structural BMPs

– Retrofit possible, count nutrient removal increase as credit (j) (4) (B)

– Operation and maintenance responsibility of

landowner unless DWQ agrees to transfer

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Additional clarification suggested by DWQ staff and stakeholders

• 15A NCAC 2B .0295 (k) Accounting for buffer credit and stream mitigation credit.

• Rename and reword as follows (suggested changes underlined):

– (k) Accounting for buffer credit, nutrient offset credit and stream mitigation credit

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Additional clarification suggested by DWQ staff and stakeholders (cont.)

– First option – buffer credit can overlap stream credit. Present approach.

– Second option – buffer credit can overlap stream

credit but only for impacts to both streams and

buffers. Many stakeholder support but complex

accounting.

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Rule .0269 – Riparian Buffer Mitigation Fees (modified)

• Nutrient Offset Program transitioned to an Actual Cost Method effective September 1, 2010

– Transition to actual cost approach required by General Assembly (S.L. 2007-438)

• Proposal is to apply the Actual Cost Method

to set rates for the Riparian Buffer program

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Rule Content

• Very similar to nutrient offset payment rule (2B .0274)

• Start with one rate area

• Set special watershed rates when data shows that costs are substantially (40%) higher than the

general rate

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Rate Calculation

Where:

¾ Actual Costs = Project Costs and Administrative Costs

¾ Total Riparian Buffer Credits = number of credits provided by projects in the calculation

• Costs and Credits are adjusted to present day values using inflation indices Adjustment Factor = Actual Costs minus Actual Receipts

• If Actual Costs are greater than Actual Receipts the difference is distributed to future credits paid into program

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Request to Water Quality Committee

• In summary, rules provide efficiency, clarity and consistency in response to requirement of state law to develop rules.

• DWQ staff request that the Water Quality

Committee forward rules .0295 and .0296 to the

full EMC for approval to proceed to public

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Questions?

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USGS topo and County Soil Survey

maps in New Bern

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Additionality and buffer mitigation credit: A generalized example

• Question – Does counting one site for both stream credit and buffer credit result in a net

increase in restored buffer?

• Answer – Yes.

• Example

– Assume 200 feet of stream and 20,000 square feet of buffer to be impacted by a road crossing.

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Additionality and buffer mitigation credit: An example (cont.)

– Stream mitigation required under Federal Clean Water Act (404/401)

• 200 feet X 2:1 ratio = 400 feet of stream restoration

• 400 feet of stream restoration with 100 foot of buffers = 40,000 square feet of buffers restored

– Buffer mitigation required under EMC’s Riparian Buffer rules

• 30 feet (Zone 1) X 3:1 X 200 feet X 2 sides of stream = 36,000 square feet

• 20 feet (Zone 2) X 1.5:1 X 200 feet X 2 sides of stream = 12,000 square feet

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Additionality and buffer mitigation credit: An example (cont.)

• Therefore, a buffer/stream mitigation site of 48,000 square feet would satisfy both the Clean Water Act and Riparian Buffer rule requirements when

allowing for both credits from the same site.

• Therefore even when counting a mitigation site for buffer and stream credit, there is a net gain of

28,000 square feet of buffer and a gain of 200 feet of stream length compared to the resources impacted.

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Mitigation Location

• Existing language – “The mitigation effort shall be the same distance from the Neuse River estuary as the proposed impact, or closer to the estuary as the impact, and as close to the location of the impact as

feasible.”

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Mitigation Location (cont.)

• Problems with the existing language

– “As feasible” very vague and hard to define.

– If taken literally, mitigation is impossible if

impacts are near estuary since zone within 50

feet of estuary is invariably wooded.

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Not uncommon residential situation

requiring buffer mitigation

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Mitigation Location (cont.)

• DWQ staff suggest the use of the 8 digit HUC as defined by the US Geological Survey.

• This is the existing standard service area for wetland and stream mitigation sites.

• Another option would be to use the 14 digit

HUCs.

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Mitigation hierarchy

• DWQ staff suggest removal of hierarchy for following reasons.

• Proposed hierarchy was 1) on-site, 2) then off-site, 3) then EEP or private bank, and then alternative mitigation - 4) non-structural option, followed by 5) structural option.

• Reasons to remove strict hierarchy

– Hard to define process. RRC will insist on clear definition

– Banks/EEP often provide higher quality mitigation than on-site