Wednesday, December 16, 2009

Oconee Official Lined Up Opposition to Mitigation Resolution

Calling on Bishop

Prior to the Nov. 10 meeting of the Land Use and Transportation Planning Committee, Oconee County Strategic and Long-Range Planning Director Wayne Provost sought input from developer Frank Bishop.

Provost asked Bishop for his reaction to a resolution before the committee that would put the county on record with the United States Army Corps of Engineers as favoring local mitigation for damage to streams and wetlands in the county.

One of Bishop’s businesses–a mitigation bank in Greene County--could be at a disadvantage if the resolution were to pass.

Provost did not seek input from two other businessmen who could be positively affected by the resolution.

Mike Kelly owns land on Rose Creek in the southern part of the county and went through the permitting process with the state and federal governments to operate a mitigation bank there.

Jay Thrower is in the final stages of setting up a mitigation bank on tributaries to the Apalachee River in the western part of Oconee County.

Kelly’s and Thrower’s banks, if they become operational, will be in competition with Bishop’s bank in Greene County.

The resolution before the committee would favor Kelly’s and Thrower’s sites over Bishop’s, since it states that the county, in the future, would prefer that the Corps grant permits for mitigation for damage to county streams and wetlands at restoration sites in the county or upstream from the county rather than elsewhere in the watershed.

Before that Nov. 10 meeting and in response to Provost’s initiative, Bishop provided Provost with a document called "A White Paper to Help Understand Stream and Wetland Mitigation in Oconee County."

Before the meeting, Provost sent that document to the committee–minus any identification on the cover that it came from Bishop.

Provost also sent the committee a marked-up copy of the resolution itself and a marked-up copy of a legal justification for the resolution. The marking on the documents challenges statements in them.

And at the Nov. 10 meeting, Provost made it clear how he felt about the resolution.

According to the draft minutes of that meeting, which I obtained through an open records request, Provost told the committee the resolution could "drive up the price of mitigation credits" and that "limiting the scope of available mitigation remedies would dilute free market competitiveness."

Provost "noted that he doesn’t see this as a valid area for local government intervention since both the state and federal governments are already involved," according to the minutes. "He expressed a concern about exposing the county to lawsuits if it gets involved in this arena."

Bishop also spoke at the meeting "about his experiences with the mitigation process from a developer perspective and the problems with buying credits," according to the draft minutes.

Greg Smith, a vice president of Wildlands, an environmental company, also addressed the committee, according to draft of the minutes.

Smith told the committee members that "mitigation sites almost never allow public access," so there would be no recreational advantage to creating mitigation banks in the county at least during the "7-10 years" during which monitoring of the sites occurs.

Wildlands lists on its web site the Greensboro Mitigation Bank that Bishop developed. According to that listing, the Greensboro site has 8,900 feet of stream restoration credits and three acres of wetland restoration credits available.

As it happens, Smith also is chair of the regulatory committee of the "newly formed" Georgia Environmental Restoration Association (GERA), which also sent a letter to the county opposing the resolution.

Provost sent that letter to the Land Use and Transportation Committee members before the Nov. 10 meeting.

After hearing from Provost, Bishop and Smith, the committee voted 9-2 on Nov. 10 not to endorse the proposed resolution.

Chairman Abe Abouhamdan reported that vote to the Oconee County Board of Commissioners on Nov. 24, but the BOC took no action. Commissioner Chuck Horton said he wanted to see the minutes of the Nov. 10 discussion before he made any decision about what to do next.

I had offered the mitigation resolution to the Board of Commissioners at its April 28 meeting, and it was referred to the Land Use and Transportation Committee for review at the May 5 BOC meeting.

The resolution, written by Katie Sheehan, a staff attorney at the River Basin Center in the Eugene P. Odum School of Ecology at the University of Georgia, "urges the Army Corps, when making compensatory mitigation site decisions for impacts to wetlands and streams in Oconee County, to compel permitees to engage in compensatory mitigation in the following order of preference: (1) on-site, in-kind mitigation; (2) mitigation in Oconee County in wetlands or streams with a high conservation value; (3) mitigation in Oconee County; (4) mitigation upstream of Oconee County."

The Corps, which has responsibility for waters in Georgia and throughout the country, can and often does grant permits for destruction of wetlands provided the permit recipient mitigates those damages with stream and wetland restoration elsewhere.

Mitigation credits are often purchased from commercial bankers, who develop sites and sell credits.

Bishop bought land in Greene County and developed a mitigation bank there to sell himself credits for the piping and fillings of streams and wetlands he plans on the site of his $76 million shopping center on Epps Bridge Parkway near Lowe’s.

Those streams and wetlands feed to McNutt Creek, which forms a border between Clarke and Oconee counties near the shopping center site.

After leaving Bishop’s site, the streams flow through currently undeveloped land that likely will be developed in the future.

If the developers of those sites want to pipe and fill the streams for their development, they will have to mitigate that damage. One option would be to purchase credits from a commercial mitigation bank, such as the one Bishop developed in Greene County or the two under development here in Oconee County.

Atkel Development Company of Greensboro owns 160 acres on Rose Creek on the west side of SR 15 just north of the Green County line and was in the process of developing 60 acres of that land for a mitigation bank.

Kelly told me via an email message on Dec. 9 that he has a contract on sale of the 160 acres and expects the deal to close by the end of this month.

Kelly was one step away from finalizing the mitigation bank when he put it up for sale. He never put the restrictive covenants on the land required to make it a bank, but the new owner could still do that.

Tim Funk, who is working with Jay Thrower in development of the mitigation on Goat Farm road in western Oconee County, told me in a telephone conversation on Dec. 7 that all that remains to finalize that mitigation bank is the filing of the protective covenants.

Attorneys currently are working on that process, said Funk, who is with Wetland & Ecological Consultants in Woodstock.

While the Corps of Engineers determines the number of credits needed to mitigation a permit to damage streams and wetlands and it must approve the final sale, it does not set the price. That is up to the market.

The Corps does determine that the restoration be in the same watershed. In the case of Oconee County, that is the upper Oconee watershed.

Land prices are a component of mitigation credit pricing, making it harder to profitably operate a mitigation bank in a county in which land prices are high.

Bishop told the Oconee County Planning Commission at its Aug. 18, 2008, meeting that he could not find "affordable" land in Oconee County for his mitigation needs.

According to Greene County tax records, Bishop Farms LLC owns two tracks of land on the east side of SR 15 north of Greensboro, for a total of 183 acres. The land is valued at an average of $2,328 per acre for tax purposes.

The Atkel land on SR 15 in southern Oconee County is valued for tax purposes on the Oconee County tax lists at $1,229,141, or $7,682 per acre.

Westland-TLG owns two tracts, one with considerable frontage on US 78 as it crosses the Apalachee River and the other on Goat Farm road. The mitigation bank Thrower is developing will be carved out of these properties.

Total acreage for these two tracts is 375, and the average land value for tax purposes is $13,358.

Thrower, of course, had the option of seeking a Corps of Engineer permit to disturb the streams and wetlands on the site but decided instead to put them into a mitigation bank, which will be protected via the covenants now being placed on the land.

I asked the Oconee County Board of Commissioners at its agenda-setting meeting on April 21 to consider the resolution written by Sheehan.

At the May 5 meeting, the Board decided it would be best to send the resolution to the Land Use and Transportation Committee for preliminary evaluation.

Commissioner Chuck Horton at the meeting said the county should "invite people in to address both sides to get everything out on the table. It provides an education and a dialog."

Commission Chairman Melvin Davis said he would ask Provost "to take leadership on this."

According to the minutes of the Land Use and Transportation Planning Committee, the committee did not take up the issue until I appeared before it on Aug. 11 and asked Chairman Abouhamdan to put the resolution on the agenda. He then scheduled it for the Nov. 10 meeting.

Abouhamdan did not ask me if that fit my schedule when he selected the Nov. 10 date. I told him after the meeting that I would be unable to attend because of a foreign travel commitment.

Sheehan did attend the Nov. 10 meeting and was the only person who spoke on behalf of the resolution, according to the minutes. Neither she nor I had received the "White Paper" written by Bishop or any of the other materials Provost sent to the committee members.

In fact, from May through Nov. 10 neither Sheehan nor I heard anything from either Abouhamdan or Provost other than Abouhamdan’s confirmation that the resolution would be on the Nov. 10 agenda in response to an email message I sent him on Oct. 26.

The draft minutes are the only record of the discussion at that Nov. 10 meeting.

They show that, in addition to Provost, Sandy Thursby from Public Works, Planning Director BR White, and county Administrative Officer Alan Theriault were in attendance. The minutes of the Land Use and Transportation Planning Committee show that these individuals are not usually in attendance.

Chairman Davis also was present. Provost and the other county officials present report directly or indirectly to him.

Provost told me when I spoke with him by telephone the day after the Nov. 10 meeting that he had contacted Bishop and asked for a response to the draft resolution.

"I asked them, here is the resolution. Give me your take on it," he said.

I filed an open records request with the county on Nov. 29 asking for correspondence between Davis, Provost or County Administrative Officer Theriault and Bishop or representatives of Georgia Environment Restoration Association before the Nov. 10 meeting that dealt with the proposed resolution.

Davis and Theriault reported that there was no correspondence in their files.

Provost said in an email response to Gina Lindsey, county clerk, on Dec. 2 that he had no record of his correspondence with Bishop. Lindsey handles open records requests for the county and forwarded Provost’s message to me.

"As I said before," Provost wrote to Lindsey, "I have provided Mr. Becker with everything I can find on this. I don't recall if I mailed the resolution to Mr. Bishop, faxed it or if he picked it up in person. However, there was no cover letter or memo that went with it. We just talked on the phone and he came by the office at least once but that was about it."

Provost confirmed in a telephone conversation with me on Dec. 8 that he did not talk to Kelly or Thrower or anyone else except Bishop and a representative of the Georgia Environment Restoration Association. He said he thought that the GERA representative had called him on the telephone.

During that conversation on Dec. 8, Provost said that "in conservative Oconee County" people don’t want any more regulation, particularly "given what is happening in Washington," and they don’t want to take a chance on hampering development, even it means "support for other local businesses."

Oconee County has no authority for the issuance of permits for flowing waters and streams, which are under federal control as part of Section 404 of the 1972 federal Clean Water Act.

The resolution written by Sheehan acknowledges that fact and does not propose any additional regulation.

The Oconee County BOC would simply pass the resolution once, indicating its preference on mitigation, and that would be the end of its action.

Abouhamdan told me on Nov. 11 that one of the concerns raised by committee members to the resolution was that the Corps of Engineers would not listen to the county regardless of what it said.

The efforts by Davis, Provost, Bishop and GERA indicate that at least they think the Corps just might listen.

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