Alternative (Flexible) Mitigation Options Proposed Rule - Revised

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1 Alternative (Flexible) Mitigation Options Proposed Rule - Revised NC Association of Environmental Professionals June 9, 2011

2 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

3 Compliance with Executive Order 70 Rules provide efficiency, clarity and consistency New rules enabled by state statute (G.S )

4 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)]

5 8 digit HUCs in Neuse and Tar-Pamlico Basins

6 14 digit HUCs in Neuse and Tar-Pamlico Basins

7 Highlights of Proposed Rule (cont.) Credits from stream mitigation sites [(k)] Three options Add alternative mitigation options [(j)]

8 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

9 Proposed Rule Enabled by G.S 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

10 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)

11 Stream not shown on USGS or County Soil maps

12 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

13 Bay City Farm, Beaufort County - Coastal Headwater Stream mitigation Before restoration

14 Bay City Farm, Beaufort County - Coastal Headwater Stream mitigation After restoration

15 Proposed Rule (cont.) Structural options Other options Case by case after public comment EMC decision

16 Construct Best Management Practices (BMPs) Construct to treat untreated stormwater in order to remove nutrients Constructed wetlands Bioretention facilities Infiltration devices Wet pond followed by forested filter strip

17 Example of an Agricultural Best Management Practice

18 Example of an Urban Best Management Practice

19 Proposed Rule (concluded) Riparian Buffer Mitigation Fees for EEP Continue existing fee schedule Provision for annual reevaluation based on construction cost index factor

20 Substantive changes made at request of Program Evaluation Division staff and Definitions stakeholders Separate definition section (b) Combine and simplify mitigation options (c) Remove hierarchy of mitigation options except as provided in state law (c)

21 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)

22 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 Clarify need for completion bond Clarify need for non-wasting endowment

23 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

24 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

25 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

26 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 responsibility (j) (4) (H) Bonding and endowment (j) (4) (J)

27 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

28 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. Third option buffer credit cannot overlap stream credit. Would result in most mitigation.

29 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 ) Proposal is to apply the Actual Cost Method to set rates for the Riparian Buffer program

30 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 Adjustment at least annually but more frequently if actual costs are 10% higher than existing rate

31 Rate Calculation Where: Actual Costs = Project Costs and Administrative Costs 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

32 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 hearing at their March of May 2011 meeting after fiscal note done.

33 Questions?

34 USGS topo and County Soil Survey maps in New Bern

35 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.

36 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 Total buffer restoration required = 48,000 square feet

37 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.

38 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. Suggested language Location in the 8 digit HUC instead for Neuse and Tar- Pamlico buffer rules.

39 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.

40 Not uncommon residential situation requiring buffer mitigation

41 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.

42 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 Compliance/enforcement issues with numerous, small on-site mitigation efforts Higher cost will discourage alternative mitigation anyway

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