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Victory on Jones Street: New state law means big changes for mitigation in North Carolina

As poorly headlined in last Sunday’s Raleigh News and Observer [Legislature OK’s Rule on Streams 6/19/2011], our little state trade association, the North Carolina Environmental Restoration Association, had a huge legislative win in the just adjourned 2011 session of the North Carolina General Assembly.  It is not our way at RS to get out ahead of ourselves, so Stories from the Field wanted to wait until the Governor signed the bill before announcing this bit of good news for the ecological balance of the Tar Heel state and commercial mitigation.

She signed it last night.

SESSION LAW 2011-343 puts the state fee-program and private mitigation banks in much closer compliance with the 2008 Federal Mitigation Rule by establishing a statutory preference for mitigation bank credits in North Carolina in almost all cases, as well as establishing “Full-Delivery” turn-key mitigation as the preferred method for contracting for the state’s continuing fee-program obligations where banks are not yet available.

The law continues the wise policy taking hold nationwide of transferring responsibility for restoring and caring for compensatory ecosystems from governments to privately capitalized and bonded green firms like RS and our competitors.  It almost ensures that mitigation in North Carolina will continue its progress from a state monoply functioning with state mandated “static” prices, to a vibrant ecosystem services market with true-cost competitive pricing.

All progress in commercial mitigation is incremental.  A win in the legislative halls for the NCRA is a long way from the bottom line of any individual company. But this legislation may finally have turned the ship of state in North Carolina toward performing mitigation that is not established according to available funds — but priced according to true costs.

The former method, state production and pricing, has failed miserably as detailed in the recent News and Observer series, “Washed Away.”  The latter method endorsed by the new law – establishing mitigation and then market pricing it for sale — makes sure that someone (I hope RS) is taking personal economic and ecological responsibility for a given impact to the waters of the U.S. within our state.

The bill description below may read like a wonky little change to policy but it makes a huge difference on the ground. It allows the green shoots of true-cost restoration and advance mitigation to grow in Tar Heelia without fear of being plucked by the cold dead hand of The Leviathan.

I can’t let this post end without giving a shout-out to the NCERA lobbyist from McGuireWoods Raleigh office, Harry Kaplan.  It takes a special kind of patience to navigate legislation in a heretofore unknown field with desperate entrepreneurs nipping at your heels in the halls.

Here is Harry’s summary of the law:

Analysis of Senate Bill 425:

During their 2008 Regular Session, the North Carolina General Assembly enacted legislation to provide that, under certain circumstances, certain applicants for compensatory wetlands mitigation must seek that mitigation from a private wetlands mitigation bank before seeking that mitigation from the Ecosystem Enhancement Program (“EEP”) in the North Carolina Department of Environment and Natural Resources. During their 2009 Regular Session, the General Assembly enacted legislation to extend this preference for private mitigation to the areas of riparian buffer protection and nutrient offsets. Under the law prior to the enactment of Senate Bill 425, the preference for private mitigation and nutrient offset did not apply to the State, the federal government, or to local governments.

Section 1.1 of Senate Bill 425 amends the definition of “governmental entity” in GS 143-214.11 (Ecosystem Enhancement Program: compensatory mitigation) so that the preference for private mitigation and nutrient offsets now applies to local governments unless the unit of local government was a party to a mitigation banking instrument executed on or before July 1, 2011, notwithstanding subsequent amendments to such instrument executed after July 1, 2011. Section 1.1 defines a “private compensatory mitigation bank” as a site created by a private compensatory mitigation provider and approved for mitigation credit by State and federal regulatory authorities through execution of a mitigation banking instrument. No site owned by a government entity or unit of local government shall be considered a “private compensatory mitigation bank.” Section 1.1 also requires an existing local compensatory mitigation bank to comply with the requirements of Article 12 of Chapter 160A of the General Statutes governing the sale and disposition of property whenever it transfers any mitigation credits to another person.

Section 1.2 of Senate Bill 425 establishes a new process by which the EEP provides for compensatory mitigation. This new process creates a priority system for different types of programs for the procurement of compensatory mitigation – with “Full Delivery/Bank Credit Purchase Program” listed as the first priority. Under Senate Bill 425, EEP must first seek to meet compensatory mitigation procurement requirements through its Full Delivery program or by the purchase of credits from a private compensatory mitigation bank, as defined above.

Senate Bill 425 became effective when it became law on June 17, 2011 and applies to all projects and contracts awarded on or after that date.

Video: RS makes case for removing the Milburnie Dam on the Neuse in Raleigh

Tweet This! http://mync.com/site/50660/ RALEIGH, N.C. –
A group of residents is fighting against proposed changes to the Neuse River in Raleigh.
Raleigh-based Restoration Systems is proposing to remove the Milburnie Dam, which sits about 15 miles downstream from Falls Lake.

But some residents who live along the river say they don’t want to see the dam removed.
“Canoeing isn’t going to be as much fun. There’s not going to be any boating possible any more,” said resident Gina da Roza, who fears water levels in the river will drop when the dam is removed.

She said there are also concerns about changing the water quality if the dam is removed.
“The water moves freely here. It’s very wide, the water’s clean,” she said.

She also said there are more Greenway trails planned for that area of Raleigh, and she said changing the environment there will discourage people from using the trails.

Restoration Systems President George Howard said the river is just going to be restored to its original state.
“The river’s not going anywhere,” he said.

Howard, who said his company has had success with other dam removal projects, said removing the Milburnie Dam will create a more free-flowing body of water that will help the fish population and improve water quality.

He said the company will pay for removing the dam, and then plans to sell credits to developers.
Howard admitted the river level might drop during the summer months, but said the river probably won’t look much different in the winter.

“In the summer it’s going to get somewhat lower, and that might keep you from getting motor boats out on the river, but the river wasn’t intended for motor boats originally,” he said.

In 2002, a group of state agencies said removing the dam was a priority.

Public comment is due by April 22 to the U.S. Army Corps of Engineers, which will have to approve removing the dam.

Obama seeks to block record mountaintop removal permit

The Obama administration has come down hard on the process of mountain top removal and valley fill as currently regulated.    The Gazette, the Charleston, West Virginia newspaper, has a well-linked blog through which you can follow the process of permitting America’s coal mines under the new administration.   These are complicated issues with no easy answer.  I refer to it as the unstoppable force (need for coal) — meeting the unmovable object (enforcement of the popular regulatory process).

What happens when the coal companies are forced to permit mines, and on-site mitigation activities are no longer allowed?  RS thinks a need for 178,122 off-site credits for stream mitigation.  We are here to help.

Late last week — just before the Labor Day holiday — the Obama administration EPA issued a mountaintop removal bombshell: A major letter that blasts a whole host of problems with the largest strip-mining permit ever issued in the state of West Virginia.

EPA experts have concluded that the mine, as currently designed and permitted, would violate the federal Clean Water Act. They’ve urged the Army Corps of Engineers to suspend, revoke or modify the permit. In response, Corps lawyers have asked U.S. District Judge Robert C. Chambers for a 30-day stay in legal proceedings over this permit, to give Corps staffers time to re-examine the project.

I’ve posted a copy of the EPA letter to the Corps here, and a copy of the Corps’ legal motion here. The letter was dated last Thursday and the legal motion was filed the following day.

In the five-page letter, EPA experts express grave concerns about the mine’s “potential to degrade downstream water quality, and to cause or contribute to potential excursions of West Virginia’s narrative water quality standards.”

EPA also cautioned that “additional valley fill minimization techniques such as further backstacking material on-site where appropriate, inclusion of sidehill fills with stream relocations, or other design modifications to ameliorate water quality impacts need serious consideration” from the company.

And, EPA said that “scientific and field observations strongly suggest that compensatory mitigation measures heretofore accepted by the U.S. Army Corps of Engineers, such as on-site stream creation, may not result in functional replacement with specific performance criteria.”

Read on for more on the EPA letter …

via Blogs @ The Charleston Gazette – » Obama seeks to block record mountaintop removal permit.