Davidson Lands Conservancy \<info@davidsonlands.org\>

06/27/2006 11:55 AM

To Group Ow-Docket@EPA

Cc \'Lisa Creasman\' \<lisa@ctnc.org\>

bcc

Subject EPA-HQ-OW-2006-0020, \"Compensatory Mitigation for Losses of
Aquatic Resources\"

By incorporation of the text below, the Davidson Lands Conservancy
endorses the comments on the federal proposed rules on compensatory
mitigation submitted by the Conservation Council of North Carolina
regarding proposed federal rules the subject.

Section 332.3 (c): We fully support the use of a watershed-based
approach, not only in the selection of a mitigation site, but throughout
the mitigation sequence. Decisions on the geographic extent and location
of a proposed activity and permit approval should be considered based on
the site's watershed context.

Concurrent with supporting a watershed perspective for mitigation
projects, we realize many watersheds in North Carolina and across the
country do not yet have watershed plans. In order to effectively address
cumulative impact issues and to recognize the benefits of developing
mitigation in a watershed context, we suggest that the rule needs
clearer language and guidance of what to do in the absence of a formal
watershed plan.

We support language in the NRC Report that proposes, in the absence of a
formal plan, a "structured" consideration of watershed needs and how
wetland types can fulfill those needs. We recommend a template be
developed that supplies the structure for considering available
information in a consistent manner across the country. While certain
databases may not be equally available across the county, there are some
data sets found in every watershed and/or county that could be included
in the template, with many listed in the supplemental information under
Section III "Watershed Approach". The resulting watershed "overview"
could be used in the interim, until a formal plan is developed, as an
additional resource for consideration when a site is selected or a
permit reviewed. Nationwide use of a common template could help expedite
the transition toward a watershed focus for mitigation and provide more
definitive guidance than the current language that states "project
sponsors should make a reasonable effort to obtain information".

Section 332.3 (e): We are concerned about the potential for a broad
interpretation and application of "out-of-kind" mitigation. The
allowance of replacing wetland with stream habitat or vice versa should
be kept at a bare minimum. Further, every effort should be made to
replace wetland and stream habitat type with the same habitat type. In
our experience with EEP, the only categories supplied by the state's
Department of Transportation were grouped as stream footage, riverine
wetland acreage and non-riverine wetland acreage. Grouping habitat types
at this scale risks the cumulative decline of certain rare and hard to
replace wetland and stream types.

While the rule sets forth an example of using out-of-kind mitigation to
replace more common habitat types with those that are rare, we are
concerned with the possibility of an increase in out-of-kind mitigation
more for the purpose of using readily available wetland or stream types
to replace those that are rare or difficult to replace.

We strongly support the requirement that the district engineers cannot
permit "out-of- kind" mitigation for rare or hard to replace wetlands.
Further, the use of "out-of-kind" mitigation should be used primarily to
increase rare and hard to replace habitats. In the event a permit is
approved for a rare or hard to replace habitat type, we further
recommend that preservation of like-kind habitat be required as a part
of the mitigation plan.

Concurrent with this, we propose that the mitigation data base being
developed include a regional list of rare and hard to replace habitat
types and their current status, updated regularly based on permitted
activities.

Section 332.3 (h): We fully support the use of preservation mitigation
according to the terms outlined in the proposed rules and following the
more detailed draft guidance in the Mitigation Action Plan. In
accordance with the NRC Report findings, preservation helps achieve
Clean Water Act objectives, including the long-term maintenance of the
aquatic environment in watersheds. We agree that the use of stand alone
preservation deserves greater consideration than it is currently
afforded in many COE districts, particularly in instances where the
proposed preservation mitigation project uses the watershed approach, is
targeted to rare or hard to replace wetland types, and the site is under
demonstrable threat.

Section 332.3 (i): We fully support the protection of riparian areas
and/or upland buffers associated with restoration sites, and that
compensatory credit should be provided for those sites based on the
significant ecological role they play in maintaining wetland and stream
habitats. However, due to the unique nature of this type of mitigation,
we support the development of more detailed guidance on how and when it
can be used.

Section 332.4 (C) (11): We fully support the language regarding
long-term management planning. It is imperative to establish the
requirement, during the development of the mitigation plan, for the
long-term oversight of the mitigation site and obligation of the
necessary funds to cover associated costs.

Section 332.7: We fully support the increased attention to mitigation
site management and monitoring. Land trusts recognize that stewardship
of land, including management and monitoring, is an ongoing and integral
component to the successful conservation of a site, the species and
communities it supports and its associated functions. We agree that in
many instances 5 years is inadequate in determining the success of a
restored site, particularly for wetland and stream systems that take
much longer to develop.

Section 332.7 (a): We strongly urge that the rule require the use of a
permanent legal instrument to ensure the protection of the mitigation
site. Section 332.3(h) (v) states that for preservation projects, the
site be permanently protected. This requirement for restoration sites
should be consistent. The impacts are permanent; therefore the
compensation for the loss should be permanent.

Roy Alexander

Davidson Lands Conservancy

www.davidsonlands.org

P O Box1952

Davidson, NC 28036

(704)-892-1910

fax(704)892-1924