02-26-’ 09 15:22 FROM- T-117 P001/003 F-804

North Carolina Department of Environment and Natural Resources

Division of Water Quality
Director’s Office
IIII
FAX TRANSMITTALCOVER

To: Steve Levitas

Company: Kilpatrick Stoekton~ LLP
Fax #: 919-510-6145 Phone#: 919~420-1707
From:Frances Candelaria
Date: 2/26/09 Number
of pages(including cover sheet): 3

REMARKS:

Please see attached

Mailing Address Street Address Phone:(919)807-6301

1617 Mail Service Center 512N. Salisbury St. Fax: (919)807-6492
Raleigh, NC27699-1617 Raleigh, NC27604
 02-26-’09 15:22 FROM- T-117 P002/003 F-804

HCDEFIR
NorthCarolina
Department
of Environment
andNatural
Resources
Division
of Water
Quality
BeverlyEavesPerdue ColeenH.Sullins DeeFreeman
Governor Director Secretary

February16, 2009

StevenJ. Levitas
Kilpatrick Stockton, LLP
3737 GlenwoodAvenue, Suite 400
Raleigh, NC27612

Subject: ~afi~ent Offset Requirements

"~
D e a~/Mt~//(’- Levitas:~
TheDivisionof WaterQuality (DWQ) is in receipt of your letter regardingNutrient Offset Requirementsdated
November25, 2008. Weappreciate that your client faces challengingcircumstances,and weappreciated the
opport~inityto meetwith you on January22, 2009to discuss the complexissues associated with mitigation.

As wediscussedduringour meeting,with regard to specific sites located within the NeuseRiver basin where
such a situation has arisen (EBX-NeuseRiparian Buffer UmbrellaMitigation Bank- Westbrook,Nahuntaand
MarstonSites), a Mitigation Bankinginstrument has already been executed by the Provider and DWQ, and
credit releases havealreadyoccurred.

Basedon available informationregardingmitigation sites located within the Neuseand Tar-Pamlicobasins, the
occurrenceof the realization of unallocatedor unusedcredits on an existing site wouldbe very limited. Few
existing streamrestoration sites located within the above-referenced
river basins haveunusedor unallocated
riparian acreageoutside of 50 feet fromthe streambank. in the vast majorityof cases, buffer credit has already
beenallocated fromthe 50-foot buffer, andfewsites havebuffers larger than 50 feet wherecredit has not
already beenaccountedfor.

DWQ acknowledges that you brought up several points during our January 22, 2009meetingthat merit further
discussion. DWQ has decidedto reviewpolicies and proceduresrelated both to calculation of impactsrelated
to permitting,as well as generationof credits on the mitigationside. This reviewwill includediscussionswith
USACE and USEPA regarding 404/401credit issues, as weUas state programsrelated to riparian buffers and
nutrient offset credit. Uponcompletionof this review,a policy clarification document will be presented
through Public Notice for review and comments.

1617
MailSee’ice
Center,
Raleigh,
NorthCarolina
27699-1617
Location:
512N.Salisbury
St. Raleigh,
NorlhCa[oliqa
27604 II~.TOII .
~
,n,o,oo,..
Phone:
919-807-6300
\ FAX;919-807-6492
\ Customer
Service;
1-877-623-6748 x ~,,JJ i.~,LC~]CO]lna

Naiumllfl
AnEqual
Opportuni~/\
Nfi~mative
Action
Ernp[oyer
 02-26-’09 15:23 FRON- T-117 P003/003 F-804
.ui ~UlUOU, z)w Mw~ll not approve any aaal~lonal oartKs WhereunallocateG crealtS are proposea to De generatea
from previously approvedand permitted sites until the above-described review is completedand policy and
proceduresare clarified.

if you have further questions concerning these issues, please contact Matt Matthews, Wetlandsand Stormwater
BranchChief, at (919) 807-6380.

Sullins
cc:. Matt Matthews ~{-~---~n~"
Rich Gannon
Eric Kulz
Amy Chapman
Cyndi Karoly
John Dorney
Suzanne Klimek, EEP