NCDOT and NCDENR-EEP

The United States Army Corps of Engineers (USACE), NCDOT and NCDENR Ecosystem Enhancement Program (EEP) have entered into a Memorandum of Agreement (MOA) that establishes procedures for providing compensatory mitigation through the EEP to offset impacts to waters and wetlands due to activities authorized by the Clean Water Act and the Rivers and Harbors Act. Compensatory mitigation is defined as the restoration, enhancement, creation, and/or preservation of wetlands or other waters of the United States due to activities authorized by Clean Water Act permits. NCDOT and EEP have entered into a second MOA which further details how the first MOA will be carried out.

EEP MOA Procedures

EEP MOA Governing Operation

The goal of the MOA is to provide for complete mitigation, including construction and five years of successful monitoring prior to impacts, in a comprehensive manner, considering both the ecological needs within the relevant watershed and NCDOT anticipated impacts within that watershed. By the year 2009, NCDOT must show approved mitigation sites prior to adverse impacts in order to receive the appropriate federal and state permits prior to letting projects for construction.

Seven Year Impacts

To accomplish the goal of having approved mitigation sites prior to receiving the permits, NCDOT and EEP must plan at least seven years in advance, hence what is loosely termed "7 year impacts". According to the MOA, NCDOT provides to the EEP a report of all anticipated NCDOT impacts according to TIP project number and/or NCDOT Division operations impacts, by year, for seven years into the future no later than February 1 of each year. The anticipated wetlands are in acres of riverine, non-riverine or coastal marsh impacts. The anticipated buffer impacts are in terms of square feet and the stream impacts are linear feet of anticipated impacts.

EEP Requests

After the permit application and prior to issuance of the permit, the USACE requires written notification from EEP that EEP is willing to accept responsibility to provide mitigation for specific TIP projects and other maintenance/construction projects that require compensatory mitigation. EEP requests can be TIP requests or Division requests.

TIP Requests

For TIP projects, the Project Management Unit writes the request letter. The NCDOT PDEA EEP Coordinator should be copied on all letters. After the supervisor reviews the letters, the EEP Coordinator signs the letters for the Environmental Management Director. The letters are hand-delivered to EEP.

When EEP agrees to accept responsibility for mitigation on the specific TIP project, they send a written confirmation to the USACE and copy NCDOT. When the acceptance letter comes back to NCDOT, EEP usually hand delivers the acceptance letters. The acceptance letter is date-stamped and copied. The EEP Coordinator and the Project Managers get copies of the acceptance letters.

B-4041 EEP Request Example

R-2616 EEP Request Example

Division Requests

Division requests can be handled in two ways. For impacts that are associated with TIP projects, the Divisions send the request letters through the NCDOT Director of Field Operations, through the NCDOT EEP Coordinator to EEP. The letters are hand-delivered to EEP.

For impacts that are associated with Division projects, the Divisions send the impact requests to the NCDOT Director of Field Operations where the statewide mitigation needs for all Divisions are compiled and submitted to the PDEA EEP Coordinator and to EEP on a quarterly basis.

When the EEP agrees to accept responsibility for mitigation on the specific project, they send a written confirmation to the USACE and copy associated NCDOT parties.

In-lieu Fee Program

If EEP is unable to identify adequate compensatory mitigation opportunities, and the issuance of a Section 404 or Section 10 permit to NCDOT may jeopardize the letting schedule of a NCDOT project, NCDOT may propose to use alternative mitigation options, including, but not limited to, the EEP In-lieu Fee (EEP/ILF) Program to satisfy the compensatory mitigation requirement.

If the EEP/ILF Program is to be used to satisfy the mitigation requirements, an application form should be completed, signed and forwarded to the EEP/ILF Coordinator for acceptance. A letter of acceptance will be sent to the NCDOT verifying that the mitigation will be performed by the EEP. This letter is then forwarded to the appropriate regulatory authorities for their acceptance of the mitigation plan. After the 404/401/CAMA Permits/Certifications are issued, they are forwarded to the EEP. Once the EEP receives the permits/certifications associated with the ILF Program mitigation, the EEP calculates the compensatory mitigation fee based on the following fee schedule rates. Payments are as follows:

Stream (linear feet)	$205.00/ft.
Non-riparian wetland (acres)	$12,276.00/ac.
Riparian wetland (acres)	$24,552.00/ac.
Saltwater wetland (acres)	$122,760.00/ac
Buffer (square feet)	$.96/sqft.
Nutrient Offset (stormwater)	$330.00/lb. of nutrient removed/acre/30-year period of maintenance

The EEP will then invoice the NCDOT Fund (Fund 2984) for the cost of the mitigation. The funds will then be transferred into the ILF Program Fund (Fund 2981). The NCDOT is not responsible for issuing a check to the EEP.

The application form for acceptance of mitigation can be found at:
www.nceep.net/pages/fee go to "In-lieu Fee Request Form" at bottom of page

The fee schedule (may change after inflation adjustments) can be found at:
www.nceep.net/pages/fee

EEP Budget

According to the MOA, NCDOT agrees to fund a biennial budget of the DENR-EEP based on anticipated DENR-EEP administrative and project costs. EEP agrees to contract for the planning, acquisition, construction, long-term monitoring and management of mitigation sites. NCDOT agrees to advance funding on a quarterly basis for the establishment, development and continued operations of DENR-EEP needs. Each subsequent request for advanced funding should also include a detailed accounting of program expenditures incurred the prior quarter and the subsequent request should be adjusted by any balance of funds over or under expended from the previous quarters.

Transfer of Assets

Prior to the formation of the EEP, the NCDOT constructed and managed its own "in-house" mitigation sites. These sites have been transferred to the EEP in various stages of development, and EEP is responsible for future work, monitoring, and maintenance on these sites.