Letter: Eco-Advocates ask EMC to take action on Double-Dip

Below is an email sent by several concerned environmental advocates to the NC EMC regarding recent policy decisions concerning Compensatory Mitigation Requirements..

Date: Wed, 13 Jan 2010 16:16:07 -0500
Subject: EMC Agenda Item 10-09, Compensatory Mitigation Requirements and EBX

Dear Environmental Management Commission Members,

Given the recent press, you are probably aware of the concerns raised by the environmental community related to the double-dipping of ecological values produced by Division of Water Quality (DWQ) crediting policies.[1]  The concept of “additionality,” as used by DWQ (the gain of additional benefit without additional work), is illusory and should not be applied to the environmental laws and policies we rely upon to protect our public trust waters.

The use of acreage that has already offset stream or wetland impacts to obtain riparian buffer or nutrient offsets re-credits the same nutrient removal function already allotted to existing credits, resulting in net degradation of water quality.  This double counting of credits results in a net loss of ecosystem function, which is contrary to DENR’s purpose of preserving and protecting North Carolina’s outstanding natural resources, including water quality.  In addition, this policy allows mitigation banks-including the Ecosystem Enhancement Program (EEP)-to charge buyers for two restorations, even though only one environmentally beneficial action is created on-the-ground.

[2]  Special Report: Department of Environment and Natural Resources Wetland Mitigation Credit Determinations.  2009 December.

While some projects are required to obtain mitigation at ratios greater than

1:1 – for example, a project that destroys one mile of stream may be required to buy credits representing 1.5 miles of stream restoration – those ratios are intended to provide a margin of safety and to compensate for the fact that mitigation rarely occurs directly adjacent to impact sites.
Theseratios do not create surplus credits that can be sold off without undermining the original mitigation effort.  The NC General Assembly’s Program Evaluation Division has already reviewed the situation and produced a report stating that “the actual and potential loss incurred by certifying nutrient offset credits in 2008 that overlapped with wetland credits already allotted in 2000 comprise a net loss to North Carolina’s environment.”[2]

In addition, this report concluded the following:

Actual Loss: EEP spent $698,372 to purchase nutrient offset credits from EBX that were derived from 46 acres of wetlands that had already been used to generate wetland credits for DOT. Therefore, the state of North Carolina received no return on investment in the form of additional nutrient offsets from $698,372 of the $910,920 paid by EEP (emphasis added).

Potential Loss: In addition, DWQ continues to honor its certification of another 41,086 nutrient offset credits from EBX derived from 17.9 acres of wetlands also previously used to generate wetland credits for DOT. These credits remain available for purchase even though they will provide no additional environmental benefit.

While we appreciate the willingness of DENR staff to admit the inappropriateness of these double-dipped credits and halt additional credit releases until such time as a sound package of policies can be adopted, the central problem of the EBX invalid or double-dipped credits continues to exist and no acceptable solution has been proposed.  DWQ and EEP have stated that, due to the contractual nature of the Mitigation Banking Instrument and Purchase Agreement between themselves and EBX, they cannot retract either the financial award or release of the invalid credits.

We feel that both the nature and content of these contracts allows DENR to retract release and purchase of the subject credits, given their insufficiency in meeting the intent of the laws under which the contracts were authorized.  Should DENR’s legal counsel disagree, the critical point remains: DWQ has approved, and EEP has purchased, a large amount of essentially worthless offset credits that they do not intend to retract and, as a result, substantial impact to the threatened and impaired Neuse River is not-and will not be-offset.  As the lead stewardship agency for the preservation and protection of North Carolina’s outstanding natural resources, it is DENR’s responsibility to bear the burden of ensuring that the intended benefits of mitigation are realized.  If DENR is unwilling or unable to rectify the situation caused by the issuance of these invalid credits then it falls upon their shoulders to replace that ecological value whether this is by independent restoration and retirement of additional equivalent acreage or by some other means acceptable to the citizens of North Carolina.

Please ensure that the ecological functions already lost in this case are replaced and that poor policies do not continue to lead what is one of the most important assurances of environmental quality we have in the State of North Carolina.  We would be happy to discuss any of these issues further; please do not hesitate to contact any one of us.


Alissa Bierma

Neuse RIVERKEEPERR Foundation
112 South Blount Street, Suite 103
Raleigh, NC  27601
309-750-0307 (mobile)
www.neuseriver.org <http://www.neuseriver.org/>

Heather Jacobs Deck

Pamlico-Tar River Foundation
Phone: (252) 946-7211
Cell: (252) 402-5644
Fax: (252) 946-9492
<mailto:[email protected]> [email protected]

Joe Rudek, Ph.D.
Senior Scientist
Environmental Defense Fund

4000 Westchase Blvd., Suite 510
Raleigh, NC 27607
direct: 919-881-2913
office: 919-881-2601
<mailto:[email protected]> [email protected]

Grady McCallie
Policy Director
North Carolina Conservation Network

19 E. Martin St., Suite 300
Raleigh, NC 27601
919.857.4699 x 101
[email protected]
www.ncconservationnetwork.org <http://www.ncconservationnetwork.org/>

Larry Baldwin

Neuse RIVERKEEPERR Foundation
1307 Country Club Road
New Bern, NC 28562
(252) 637-7972 – office
[email protected]

Peter Raabe
NC Conservation Director
American Rivers

331 W. Main St.
Durham, NC 27701
(919) 682-3500
[email protected]

C. David Merryman

Catawba Riverkeeper Foundation, Inc.
421 Minuet Ln. Ste. 205
Charlotte, NC 28217
Office: 704.679.9494
Cell: 704.770.5530


[1] When is Credit Stacking a Double Dip? 12/06/09 http://www.ecosystemmarketplace.com/pages/dynamic/article.page.php?page_

EBX is Paid Twice for Wetlands Work 12/08/09


Stream restoration: Who really benefits? 12/16/09 http://tinyurl.com/yeje9ur

Swamp Things Editorial 12/18/19 http://tinyurl.com/yhvku3c

Comment (1)

Go get’em Advocates for the environment! That is a lot o money for no return. I think the money paid to EBX would be better spent by driving around the beltline throwing hundred dollar bills out the window. At least the cash would be back in circulation rather than giving EBX compounding interest!!