CUMBERLAND – After being on hold for over four months as negotiations for stream credits with the Department of Forestry are finalized, Henrico County is now “ramping up” on the Cobbs Creek Reservoir project says William Mawyer, assistant director of public utilities, adding, “We may be in touch with some of the property owners in the next few weeks.

A budget amendment passed by the General Assembly last month is slated to help put the acquisition of property for Cobbs Creek Reservoir back on track, although Mawyer points out that project is about six months behind schedule.

The amendment allows for 75 percent of the stream credits which need to be mitigated by Henrico for the Cobbs Creek Reservoir project will be done so through the Department of Forestry, costing nearly 10 million dollars. The remaining 25 percent will be bought from private sources.

Cobbs Creek Reservoir will permanently inundate 80,020 linear feet, or just over 15 miles, of stream bed, according to the original permit for the reservoir issued by the Virginia Department of Environmental Quality (DEQ).

Compensatory mitigation for the loss of those streams can include the purchase of mitigation bank credits. That equals about 80,000 total credits which must be purchased, a portion of which were designated to come from mitigation within the Cumberland State Forest, according to the original permit.

“Credits” are a unit of measure used by the DEQ, which allows them to quantify the impact on streams and wetlands a project may have and assess a comparable amount of mitigation that needs to occur to make up for impact.

The amendment still needs to be signed by the governor, but Mawyer was hopeful that he would approve the plan by signing the budget amendment bill.

The 1,117-acre augmentation reservoir will be located between Columbia Road and Cedar Plains Road, in the far northwest corner of Cumberland County near the James River. The reservoir is designed to release water into the James to augment river flow during the dry summer months and periods of drought. During times of sufficient river flow, such as the spring, the reservoir supply will be replenished.

Mawyer announced during an October meeting with affected landowners that Henrico is prepared to buy 43 plats, or parcels of land, from a total of 20 landowners or entities.

At the time of the October meeting, Mawyer stated they had made offers to two landowners but were waiting to make other offers to the 20 persons or entities who owned the property needed for the project until after negotiations with the Department of Forestry had been finalized.

The reservoir will permanently impact 15.3 miles of stream, almost 31 acres of wetland and 4.6 acres of open water, according to the DEQ permit.

By state law, Henrico is required to mitigate for both wetlands and streams that are permanently impacted by the reservoir.

According to the code of Virginia, mitigation is “avoiding and minimizing impacts to the maximum extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.”

Under the state policy of “no net loss,” builders and developers must offset the loss of streams and wetlands with compensation of others. A business has arisen around mitigation banking.

“The purpose of mitigation banks is to replace the biological, chemical, and physical functions of wetland resources by quantifying the replaced function as a “credit”, which can be purchased by third parties to compensate (“debit”) for unavoidable wetland losses,” according to the DEQ. Working with a mitigation bank, private and public developers can offset stream and wetland losses in advance.

Henrico must mitigate a total of 56 wetland credits and 80,000 stream credits. According to Mawyer, mitigation within the state has probably never before occurred with such a large volume of credits.

The original DEQ permit requires that some stream mitigation credits be obtained from the Cumberland State Forest, which is owned by the Department of Forestry.

However, mitigation within the Cumberland State Forest has proved to be a little more complicated than expected.

Some mitigation bankers, who have invested money in developing these compensatory mitigation banks, are not happy about Henrico's deal with the Department of Forestry.

There are a lot of mitigation credits that need to be handled due to the size of the Cobbs Creek Reservoir project and, according to Deputy Secretary of Agriculture and Forestry Travis Hill, mitigation bankers were worried that their credits weren't going to be used or used as much.

However, Hill points out that when the original reservoir permit was issued, the private banks weren't around. It was “a new idea to go into the State Forest to set up the stream side buffers and do that sort of thing.”

He continued, “We want to recognize the fact that the banks are out there and give them their due. And I think this is a fairly unique project that the state needs from a water source persepective. …We want that to happen from an economic development perspective and a water supply perspective. We like to see the private bankers get a share of it.”

According to Hill, the original amendment introduced in the General Assembly this year would have prohibited mitigation in the state forest, due to the pressure of the private mitigation bankers.

But, the amendment has now shifted. As it now stands, 75 percent of the stream mitigation would come from the state forest and 25 percent would come from private bankers. Of course, the Governor's signature is still needed.

Mawyer is optimistic that the governor will sign the amendment. “His offices have been involved in these negotiations all along, so it should not be a surprise,” Mawyer said.

Meanwhile, Mawyer reported that “we're going to move forward with the invitiation for bids to purchase the credits from the private market that we need.”

Henrico will also need to eventually sign the contract with the Department of Forestry and “jointly, currently, we'll start making offers to property owners on their properties.”

A final plan outlining the details and responsibilities of mitigation by both the Commonwealth and Henrico County would ultimately have to be approved by the Virginia Department of Environmental Quality, the State Water Control Board and the Army Corp of Engineers, Hill said.

Hill expects it will be spring or early summer before negotiations are finalized.

The Amendment

Hill points out that the amendment designates the money Henrico will pay for mitigation to also go toward the acquisition of new state forest lands. He sees this almost as a double conservation, “you've got mitigation within the state forest but then you've also got the opportunity to utilize the money generated to potentially acquire forest land in other parts of the commonwealth and conserve that land as well.”

The amendment item to the state budget specifies that $9,840,690 will be deposited into the Virginia State Forest Mitigation Fund, a fund created by the amendment, that would come from the stream mitigation purchase between the Department of Forestry and Henrico County. The amendment specifies that only 75 percent of the required stream mitigation credits for the Cobbs Creek Reservoir project will be bought from the Department of Forestry, the remainder being purchased from other sources.

“These funds shall be used solely for forest land or conservation easement acquisition,” the amendment reads. Seven percent of the funds will go towards long term management of mitigations.

However, the amendment concludes that in future mitigation projects, public or private, state forests can not be used to mitigate wetland or stream impacts “until such time as due consideration has been given to the availability of mitigation credits available from private sources.”

Mitigation Plan

Henrico's final mitigation plan was submitted to the Virginia Department of Environmental Quality last month.

It details three aspect of mitigation, according to Mawyer: wetland mitigation at Swift Island, a private mitigation bank located in Buckingham County; mitigation of 75 percent of the stream credits through the Department of Forestry; and mitigation of 25 percent of stream credits through private mitigation banks.

The credits from private mitigation banks will be put out for competitive bid, Mawyer said.

Mawyer explained that in the Cumberland State Forest, Henrico hopes to mitigate through preservation.

Mawyer points out that state forests are in the business of silviculture. They fund themselves by planting, growing and harvesting trees, like other agricultural crops.

With the new mitigation plan, Henrico is paying the state forest not to harvest any trees within a 100-foot buffer along 58 miles of stream in the Cumberland State Forest. Currently, Mawyer points out, it is the forestry's policy to only harvest 50 percent of trees close to a stream. Henrico would be paying them to not harvest any of those trees.

For those seeking more information, the director of utilities of Henrico County will be at Tuesday night's Cumberland Board of Supervisors meeting to provide an update on the Cobbs Creek Reservoir project, according to Mawyer.