20070747 Ver 1_Mitigation Plans_20090210

o-7- 0-147
THE FLAT SWAMP MITIGATION BANK
Neuse Buffer & Nutrient Offset Buffer Mitigation Plan
Bank Parcel Development Package
Craven County, North Carolina
Pre aced B :
GreenVest
GreenVest/Flat Swamp, LLC
1001 Capability Drive, Suite 312
Raleigh, NC 27606
February 2009
FEB 1 0 2009
DENR. WATER•QUALM
WETLANDS AND STORMWATER BRANCH

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Table of Contents
Site Location, HUC, Existing Conditions ................................................................................... 3
Proposed Restoration Activities ...................................
• Monitoring and Maintenance Plans ............................................................................................ 6
• Mitigation Potential ...................................................................................................................... 6
Credit Generation .......................................................................................................................... 6
Service Area .................................................................................................................................... 6
• Accounting ..................................................................................................................................... 6
• Appendix I - Figures ..................................................................................................................... ..
Appendix II - Photos .................................................................................................................... ..
Appendix III - Example Conservation Easement ...................................................................... ..
Appendix IV - Project Bonding ................................................................................................... ..
. Appendix V - Approved Mitigation Banking Instrument .......................................................... ..
Appendix VI - DWQ Mitigation Banking Instrument & Credit Accounting Ledger .............. ..

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Site Location, HUC, Existing Conditions
The FSB is located in North Carolina Division of Water Quality (NCDWQ) subbasin 03-04-08 of the Neuse
River Basin. More specifically, the site is located within US Geologic Survey (USGS) 8-digit hydrologic unit
code (HUC) 03020202 and 14-digit HUC 03020202080020. Flat Swamp creek originates approximately 3.2
miles southwest of Fort Barnwell and 4.5 miles northeast of Dover in Craven County, North Carolina. Flat
Swamp Creek is a tributary of the Neuse River and flows east from the project site intersecting Core Creek
before emptying into the south side of the Neuse River. The FSB is located in the headwaters of Flat Swamp
Creek (Latitude 35 degrees 15 minutes 10.96 seconds N and Longitude 77 degrees 22 minutes 04.05 seconds
E). The site is bounded by Dover Fort Barnwell Road (SR 1262) to the north and west, Jonestown Road (SR
1258) and Camp Oak Road (SR 1261) to the east, and Dover Bay to the south (Appendix I: Figure 1).
The FSB is located entirely on two adjoining parcels in Craven County, NC (Appendix I: Figure 2). The site
and its watershed encompass extensive areas of cleared and drained wetlands currently in agriculture and
forestry production. Total area of the site is approximately 386 acres which includes 360.7 acres of prior-
converted (PC) agricultural land and approximately 25.3 acres of partially drained forested wetlands based on
a jurisdictional determination field review (USACE 1/9/09). The Flat Swamp Mitigation Bank includes -50
acres of PC agricultural land and 14,281.9 if of streams including 19.5 acres of riparian area (100 ft. buffer)
associated with the proposed stream enhancement (Figure 11a). Quality Woods has exercised the option to
purchase both parcels in their entirety to encompass all of the proposed wetland restoration and stream
enhancement on the site. The new ownership entity is GreenVest, Flat Swamp, LLC. Approval was granted
to Quality Woods for Flat Swamp Mitigation Bank Phase I - Fetland Restoration and Enhancement on 366 acres in
1999 (Appendix V).
Land adjacent to the FSB is being managed for timber production by timber corporations and private
individuals. Based on the characteristics of remaining forested wetlands both on-site and on adjacent land,
the site once supported a rich diversity of habitats including wet flat hardwoods and pine swamp hardwoods,
as well as cypress and riverine hardwoods along the historic Flat Swamp Creek system. Much of this habitat,
including the original Flat Swamp Creek has been destroyed or altered during the past 30-40 years as a result
of ditching, draining, channelization, and road building associated with the conversion of the land to
agricultural production. It is estimated that the watershed to the Flat Swamp Creek is approximately 25%
cultivated crop or pasture land, 70% forested/wetland, and 4% urban/residential. Only 1% of the watershed
is estimated to be impervious.
The FSB exhibits characteristics of a riparian headwater system as described in guidance set forth by the
United States Army Corps of Engineers (USACE) and NCDWQ titled Information Regarding Stream Restoration
with Emphasis on the Coastal Plain (2007). All streams on-site exist as zero order or first order jurisdictional
streams. Zero order streams are referred to as ` jurisdictional waterways that do not appear on a county Soil
Survey" and a first order stream is "that portion of a waterway from its identified origin downstream to the
first intersection with another waterway" (USACE, 2005). The original Flat Swamp Creek system no longer
exists, having been obliterated by land clearing for agriculture, ditching and road building. What was once a
natural stream network now exists in the form of zero and first order agricultural stream ditches characterized
as jurisdictional waters of the State and Relatively Permanent Waters (RPW) of the United States by DWQ
and ACE respectively. These man-made ditches are now direct unnamed tributaries (UTs) to Flat Swamp
Creek and are jurisdictional under the Clean Water Act (CWA). The combined drainage area of these
tributaries is approximately 1.8 square mile (1,141 acres) which is more than adequate to sustain streams on
site in conjunction with the proposed riparian buffer and non-riparian wetland restoration components and in
this area of the coastal plain (Appendix I: Figure 3).
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Topography on the site has very minimal variation, as would be expected on the lower coastal plain. Ground
elevations of the FSB range from approximately 49 feet above mean sea level to approximately 53.5 feet
above mean sea level, with elevations around the manmade ditches being slightly lower ranging between 6-
inches and 1-foot.
The Flat Swamp watershed has been extensively impacted by clearing, ditching, ongoing agricultural practices
and road building over the past 100 years (Appendix II: Photos 1-4). These activities have obliterated many
of the historical stream and wetland systems, including the riparian and non-riparian wetlands, as well as small
coastal plain zero, first and second order streams that once flowed to the Neuse River. The site is in the
upper reaches of the Flat Swamp Creek watershed and therefore has a large influence on the water quality and
habitat in Flat Swamp Creek, Core Creek, and ultimately the Neuse River.
Proposed Restoration Activities
Riparian headwater system improvement will be accomplished through the enhancement and functional uplift
of existing streams, restoration of forested buffers, as well as restoration of riparian and non-riparian
wetlands. Enhancement of existing streams will be accomplished by reconnecting the streams to adjacent
riparian and non-riparian wetlands by restoring a functioning floodplain. Restoring a functioning floodplain
and forested riparian area will improve habitat, improve stream shading, and result in a conversion of faunal
species in the riparian area from terrestrial to aquatic. Additional enhancement activities will include
establishing permanent water pools to improve aquatic habitat, introduce large woody debris in the form of
bank inset and floodplain logs, in-stream and floodplain brush piles, root wads, and submerged logs.
Additional variations in the floodplain/bank/stream interface will be established to encourage low-energy
meandering
Restoration of the riparian and non-riparian areas using strategic vegetation planting practices will provide
stream bank stability (which will compliment the stream enhancement), stream shading, water quality
improvements through nutrient uptake and sediment filtering, as well as providing wildlife habitat. These
riparian buffers will be restored by planting appropriate native species, trees, shrubs, and herbaceous
vegetation in zones specific to landscape position, topography and hydrology.
Vegetation data was collected from the Croatan National Forest along an unnamed tributary to Brice Creek as
well as a non-riparian hardwood wetland reference site for use in development of preliminary planting plans
for the FSB. Dominant species within the canopy were recorded and their percent of canopy coverage
documented. Data recorded for species present in the canopy along the UT is as follows: black gum (40%),
red maple (209/6), swamp chestnut oak (159/6), willow oak (10%), sweetgum (5%), green ash (<50/o), holly
(<5%), black willow (<59/6), and bays (<5%). Other species present at the non-riparian hardwood wetland
reference site include water oak (200/6), cherry bark oak (15%) yellow poplar (159/6), and swamp white oak
(<59/6). Additionally, dominant understory species were recorded as well as their abundance within the UT
reference site. Understory species in order of abundance are as follows: giant cane, dog hobble (Leucothoe
racemosa), netted chain fern, poison ivy, royal fern (Osmunda regalis), spicebush (Lindera ben?Zoin), arrow arum
(Peltandra viTinica), cinnamon fern (Osmunda cinnamomea), false nettle (Boehmeria cylindrica), and miscellaneous
sedges. Other species located at the non-riparian hardwood site include horse sugar (Symplocos tinctoria) and
holly (Ilex sp.). Quality Woods has also identified two significant natural areas (SNA) proximal to the FSB to
use as additional reference plant communities if necessary. These two SNAs are recorded in the North
Carolina Natural Heritage Program (NHP) database (2008). Both sites are located within 20 miles of the FSB
and contain applicable reference quality plant communities should additional vegetative information be
required. In addition, the proposed restoration site is adjacent to Dover Bay to the south, a large intact
Carolina Bay system thereby providing connectivity between core wildlife habitats and subwatersheds.
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Tree and shrub species will be planted in specific planting zones. These planting zones will accommodate
plant species which have specific requirements for growth. Hydrology and topography are the main factors
that dictate a plant's ability to survive and to thrive following planting. These planting zones will be created
around these requirements and will include the following zones: Zone 1 (Stream/Ditch Vegetation), Zone 2
(Riparian Buffer), and Zone 3 (Non-Riparian Buffer). The total width for Zones 1, 2, and 3 is approximately
200 feet for all ditches connecting to surface waters and enhanced streams within the project area (Appendix
I: Figure 11a). A list of species recommended for each Zone can be found in Table 3. A proposed
vegetation plan is shown on Figure 13 in Appendix I.
Craven County
Planting Zone Area Zone
Zone (Acres) Description
Recommended Plant Species (Character Trees)
Cephalanthus occidentalis
Stream/Ditch Fraxinus pennsylvanica
TBD* Bank Cornus amomum
Nyssa sylvatica
Salix nigra
Taxodium distichum
Betula nigra
Celtis occidentalis
Riparian Fraxinus pennsylvanica
TBD** Buffer Quercus michauxii
Quercus pagoda
Quercus nigra
Quercus phellos
Gordonia lasianthus
Persea borbonia
TBD*** Non-Riparian Quercus michauxii
Buffer Quercus pagoda
Quercus nigra
Quercus phellos
Common Name
Buttonbush
Green ash
Silky dogwood
Swamp Blackgum
Black willow
Bald cypress
River birch
Hackberry
Green ash
Swamp Chestnut Oak
Cherrybark Oak
Water oak
Willow oak
Loblolly bay
Red bay
Swamp Chestnut Oak
Cherrybark Oak
Water oak
Willow oak
fi Area calculated based on a Zone width ( tbd: Zones 1, 2 & 3 = -200 ft.)
** Area calculated based on a Zone width (tbd: Zones 1, 2 & 3 = -200 ft.)
*** Area calculated based on a Zone width ( tbd: Zones 1, 2 & 3 = -200 ft.)
Presently there are no non-native or exotic species present onsite. If encountered during construction or post
construction non-native exotic vegetation species will be removed mechanically during site preparation. If
needed certain areas would be treated with appropriate herbicides rated for use in aquatic environs such as
Rodeo in order to promote the establishment and protection of desired native species vegetation. Standard
silvicultural practices and site preparation techniques using appropriate herbicides will be utilized to promote
vigorous growth of desirable tree species, particularly in the early years of project establishment. All
vegetation related design and construction implementation services, including exotic vegetation removal, as
well as site planting and associated site preparation will be led and coordinated under the supervision of
Quality Woods. Project monitoring will identify any potential invasive/exotic/undesirable herbaceous and
tree species establishment following construction. Any corrective actions required will be documented in
writing and submitted to DWQ for review prior to execution. It is our intent to actively manage this project
through the end of the maintenance/monitoring period employing adaptive management techniques.
Monitoring and Maintenance Plans
Stem counts will be conducted within strategically placed 10m x 10m plots. When choosing the location for
each plot, the primary goal will be to obtain a representative sample of the entire area of disturbance.
Therefore, plots will be scattered throughout the project and will attempt to capture all habitat and vegetation
density variations. The total area of sample plots will be based on the total mitigation type area and in
accordance with The Carolina Vegetative Sampling Protocol (Levels I & 11), such that no more than 2 percent of
any one Parcel is encompassed in monitoring plots. Based on the approximate planting areas shown in Table
3, FSB will require 20 sample plots spaced throughout Planting Zone 2 and Planting Zone 3. The minimum
density of plant stems within each sample plot established during construction will be 460 stems per acre.
Given the plot density, approximately 300+ man-hours will be devoted to sampling and project vegetation
success annually, with particular attention given to project monitoring in the first two years of growth.
Vegetation success will be based on tree survivability over a five year monitoring period. Success will be
measured by density and growth of character tree species. "Character Trees" are defined as
planted or volunteer species identified from a survey of local vegetation on less
degraded sections of the specified reference site and from reference literature that details native species.
Survivability will be based on achieving at least 320 stems (Character Trees) per acre after five years. Planted
species must account for a minimum of 30 percent of the above densities. A survey of vegetation during the
growing season (mid-March to early November) will be conducted annually over the five year monitoring
period in order to verify survivability of the installed plantings. This survey will track the total mortality on an
annual basis and be used to calculate survivability at the end of three and five years. Survivability of less than
320 stems per acre at the end of the three and five year monitoring periods may require the installation of
additional plantings as replacement for the mortality.
Note the stem count procedure only applies to planted and transplanted woody vegetation. For shrubby
species with multiple branching stems, the base will be considered one stem. Trees with two or more main
stems branching from the base or near the ground will be considered one stem. Planted individuals will be
kept separate from volunteers by loosely tied flagging. All flagging material will be designed to degrade within
a couple years and will not be tied tightly or in a manner that would inhibit plant growth.
Mitigation Potential
The project design as proposed allows for the buffering of ditches connected with surface waters extending
to 200 feet. Figure I I a illustrates the proposed 200 foot buffers and equates to 274.19 acres available for
nutrient offset mitigation. In addition, the project will generate 19.5 acres of Neuse Buffer mitigation for
buffers extending to 50 feet along jurisdictional streams. .
Credit Generation
Nutrient offset credits (NOC) and Neuse Buffer credits (NBC) will be generated through the restoration of
293.69 acres of riparian buffer equating to a maximum of approximately 667,563.24 lbs of NOCs using
established DWQ guidelines for determining nutrient removal efficiencies by vegetated buffers at 2,273.02 lbs
per acre. Of the maximum 293.69 acres of buffer mitigation, the project will also generate 19.5 NBCs.
Service Area
Neuse Basin including US Geologic Survey (USGS) 8-digit hydrologic unit code (HUC) 03020202 - Middle
Neuse
Accounting
See Ledger in MBI (Appendix VI)
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Appendix I - Figures
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Prepared For
PROJECT VICINITY MAP Figure
MD21 FLAT SWAMP MITIGATION BANK USACE CRAVEN COUNTY, NORTH CAROLINA
Prepared For:
USACE
PROJECT BOUNDARIES
FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
Figure
2
Prepared For:
PROJECT DRAINAGE AREA
FLAT SWAMP MITIGATION BANK
UsACE I CRAVEN COUNTY, NORTH CAROLINA
Figure
3
Prepared For:
Flat Swamp Site Plan
USACE/NCDWQ FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
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Appendix 11 - Photos
PHOTOGRAPHIC LOG
Client Name: Project Name:
NCDWQ Flat Swamp Mitigation Bank
Photo No. Date: M,'?
1 Feb 2007
Perspective:
Unknown
¦I
1
Photo No. Date:
4 Apr 2008
Perspective:
I Facing South
Description:
North to south flowing
ditch acting as eastern
property boundary for
the FSB Site. Entire
length determined to be
jurisdictional and at least
intermittent per
NCDWQ stream
determination/]D dated
9/30/2008.

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Appendix III - Example Conservation Easement
MODEL CONSERVATION EASEMENT
January 18, 2001
Rev'd October 16, 2002
Rev'd August, 2003
Model Conservation Easement for use in preserving mitigation property. Language in
italics is instructional, and should be deleted when site-specific Conservation Easement
is prepared.
PERMANENT CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT ("Conservation Easement") made this
day of , 200 by and between
("Grantor") and
(Grantee).
The designation Grantor and Grantee as used herein shall include said parties,
their heirs, successors and assigns, and shall include singular, plural, masculine, feminine
or neuter as required by context.
RECITALS
WHEREAS, Grantor owns in fee simple certain real property situated, lying and
being in County, North Carolina, more particularly
described in Exhibit A attached hereto and incorporated herein ("Property");
WHEREAS, Grantee is [either a public body of this state, an agency of the United
States, or a nonprofit corporation or trust whose purpose is the conservation of property],
and is qualified to be the Grantee of a conservation easement pursuant to N.C. Gen. Stat.
§ 121-35;
WHEREAS, Grantor and Grantee recognize the conservation, scenic, natural, or
aesthetic value of the property in its natural state, which includes the following natural
communities: [describe by wetland and/or stream type, as well as any associated buffers
or upland communities]. The purpose of this Conservation Easement is to maintain
wetland and/or riparian resources and other natural values of the Property, and prevent
the use or development of the Property for any purpose or in any manner that would
conflict with the maintenance of the Property in its natural condition.
[For use when the mitigation is offered for impacts of a single individual or
general permit use] WHEREAS, the preservation of the Property is a condition of
Department of the Army permit Action ID issued by the Wilmington
District Corps of Engineers, required to mitigate for unavoidable stream and/or wetland
impacts authorized by that permit. Grantor and Grantee agree that third-party rights of
enforcement shall be held by the U.S. Army Corps of Engineers, Wilmington District
(Corps, to include any successor agencies), and that these rights are in addition to, and do
not limit, the rights of enforcement under said permit.
[Alternate paragraph for use when the conservation easement supports a
mitigation bank] WHEREAS, the preservation of the Property is required by a Mitigation
Banking Instrument for the [Name of Bank], Department of the Army Action ID [Action
ID number for the mitigation bank]. The Mitigation Bank is intended to be used to
compensate for unavoidable stream and/or wetland impacts authorized by permits issued
by the Department of the Army. Grantor and Grantee agree that third-party rights of
enforcement shall be held by the U.S. Army Corps of Engineers, Wilmington District
(Corps, to include any successor agencies), and that these rights are in addition to, and do
not limit, the rights of the parties to the Mitigation Banking Instrument.
NOW, THEREFORE, for and in consideration of the covenants and
representations contained herein and for other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, Grantor hereby
unconditionally and irrevocably grants and conveys unto Grantee, its heirs, successors
and assigns, forever and in perpetuity a Conservation Easement of the nature and
character and to the extent hereinafter set forth, over the Property described on Exhibit A,
together with the right to preserve and protect the conservation values thereof, as follows:
ARTICLE I.
DURATION OF EASEMENT
This Conservation Easement shall be perpetual. This conservation Easement is an
easement in gross, runs with the land and is enforceable by Grantee against Grantor,
Grantor's personal representatives, heirs, successors and assigns, lessees, agents and
licensees.
ARTICLE II.
PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purpose of this
Conservation Easement is prohibited. The Property shall be preserved in its natural
condition and restricted from any development that would impair or interfere with the
conservation values of the Property.
Without limiting the generality of the foregoing, the following activities and uses
are expressly prohibited, restricted or reserved as indicated hereunder:
A. Disturbance of Natural Features. Any change disturbance, alteration or
impairment of the natural features of the Property or any introduction of non-native
plants and/or animal species is prohibited.
B. Construction. There shall be no constructing or placing of any building,
mobile home, asphalt or concrete pavement, billboard or other advertising display,
antenna, utility pole, tower, conduit, line, pier, landing, dock or any other temporary or
permanent structure or facility on or above the Property.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting
or mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways
on the property; nor enlargement or modification to existing roads, trails or walkways.
G. Signage. No signs shall be permitted on or over the Property, except the
posting of no trespassing signs, signs identifying the conservation values of the Property,
signs giving directions or proscribing rules and regulations for the use of the Property
and/or signs identifying the Grantor as owner of the property.
H. Dumping or Storage Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or
hazardous waste, or any placement of underground or aboveground storage tanks or other
materials on the Property is prohibited.
1. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
minerals or other materials, and no change in the topography of the land in any manner
on the Property, except to restore natural topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
altering or tampering with water control structures or devices, or disruption or alteration
of the restored, enhanced, or created drainage patterns. In addition, diverting or causing
or permitting the diversion of surface or underground water into, within or out of the
easement area by any means, removal of wetlands, polluting or discharging into waters,
springs, seeps, or wetlands, or use of pesticide or biocides is prohibited.
K. Development Rights_ No development rights that have been encumbered or
extinguished by this Conservation Easement shall be transferred pursuant to a
transferable development rights scheme or cluster development arrangement or
otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited. [The Corps
will generally allow the use of vehicles on existing roads provided those roads are
identified by reference to a recorded map showing their location, configuration, and
size.]
ARTICLE IV.
GRANTEE'S RIGHTS

M. Other Prohibitions. Any other use of, or activity on, the Property which is or
may become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
ARTICLE III
GRANTOR'S RESEVERED RIGHTS
The Grantor expressly reserves for himself, his personal representatives, heirs,
successors or assigns, the right to continue the use of the property for all purposes not
inconsistent with this Conservation Easement, including, but not limited to, the right to
quiet enjoyment of the Property, the rights of ingress and egress, the right to hunt, fish,
and hike on the Property, the right to sell, transfer, gift or otherwise convey the Property,
in whole or in part, provided such sale, transfer or gift conveyance is subject to the terms
of, and shall specifically reference, this Conservation Easement.
[For use when mitigation work (approved or required restoration, creation, or
enhancement)is to be done on the property]Notwithstanding the foregoing Restrictions,
Grantor reserves for Grantor, its successors and assigns, the right to construct wetland
and stream mitigation on the Property, in accordance with the [describe mitigation plan
by title, date and permit action id if a single mitigation site; if a mitigation bank, include
the language "detailed mitigation plan approved in accordance with the Mitigation
Banking Instrument for the
Mitigation Bank.]
The Grantee or its authorized representatives, successors and assigns, and the
Corps, shall have the right to enter the Property at all reasonable times for the purpose of
inspecting said property to determine if the Grantor, or his personal representatives, heirs,
successors, or assigns, is complying with the terms, conditions, restrictions, and purposes
of this Conservation Easement. The Grantee shall also have the right to enter and go
upon the Property for purposes of making scientific or educational observations and
studies, and taking samples. The easement rights granted herein do not include public
access rights.
ARTICLE V
ENFORCEMENT AND REMEDIES
A. To accomplish the purposes of this Easement, Grantee is allowed to prevent
any activity on or use of the Property that is inconsistent with the purposes of this
Easement and to require the restoration of such areas or features of the Property that may
be damaged by such activity or use. Upon any breach of the terms of this Conservation
Easement by Grantor that comes to the attention of the Grantee, the Grantee shall notify
the Grantor in writing of such breach. The Grantor shall have 30 days after receipt of
such notice to correct the conditions constituting such breach. If the breach remains
uncured after 30 days, the Grantee may enforce this Conservation Easement by
appropriate legal proceedings including damages, injunctive and other relief.
Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice,
to obtain a temporary restraining order, injunctive or other appropriate relief if the breach
of the term of this Conservation Easement is or would irreversibly or otherwise
materially impair the benefits to be derived from this Conservation Easement. The
Grantor and Grantee acknowledge that under such circumstances damage to the Grantee
would be irreparable and remedies at law will be inadequate. The rights and remedies of
the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights
and remedies available to Grantee in connection with this Conservation Easement. The
costs of a breach, correction or restoration, including the Grantee's expenses, court costs,
and attorneys' fees, shall be paid by Grantor, provided Grantor is determined to be
responsible for the breach. The Corps shall have the same right to enforce the terms and
conditions of this easement as the Grantee.
B. No failure on the part of the Grantee to enforce any covenant or provision
hereof shall discharge or invalidate such covenant or any other covenant, condition, or
provision hereof or affect the right to Grantee to enforce the same in the event of a
subsequent breach or default.
C. Nothing contained in this Conservation Easement shall be construed to entitle
Grantee to bring any action against Grantor for any injury or change in the Property
resulting from causes beyond the Grantor's control, including, without limitation, fire,
flood, storm, war, acts of God or third parties, except Grantor's lessees or invitees; or
from any prudent action taken in good faith by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to life, damage to property or harm to the
Property resulting from such causes.
ARTICLE VI
MISCELLANEOUS
A. Warran . Grantor warrants, covenants and represents that it owns the
Property in fee simple, and that Grantor either owns all interests in the Property which
may be impaired by the granting of this Conservation Easement or that there are no
outstanding mortgages, tax liens, encumbrances, or other interests in the Property which
have not been expressly subordinated to this Conservation Easement. Grantor further
warrants that Grantee shall have the use of and enjoy all the benefits derived from and
arising out of this Conservation Easement, and that Grantor will warrant and defend title
to the Property against the claims of all persons.
B. Subsequent Transfers. The Grantor agrees to incorporate the terms of this
Conservation Easement in any deed or other legal instrument that transfers any interest in
all or a portion of the Property. The Grantor agrees to provide written notice of such
transfer at least thirty (30) days prior to the date of the transfer. The Grantor and Grantee
agree that the terms of this Conservation Easement shall survive any merger of the fee
and easement interests in the Property or any portion thereof and shall not be amended,
modified or terminated without the prior written consent and approval of the Corps.
C. Assignment. The parties recognize and agree that the benefits of this
Conservation Easement are in gross and assignable provided, however that the Grantee
hereby covenants and agrees, that in the event it transfers or assigns this Conservation
Easement, the organization receiving the interest will be a qualified holder under N.C.
Gen. Stat. § 121-34 et seq. and § 170(h) of the Internal Revenue Code, and the Grantee
further covenants and agrees that the terms of the transfer or assignment will be such that
the transferee or assignee will be required to continue in perpetuity the conservation
purposes described in this document.
D. Entire Agreement and Severability. This instrument sets forth the entire
agreement of the parties with respect to the Conservation Easement and supersedes all
prior discussions, negotiations, understandings or agreements relating to the Conservation
Easement. If any provision is found to be void or unenforceable by a court of competent
jurisdiction, the remainder shall continue in full force and effect.
E. Obligations of Ownership. Grantor is responsible for any real estate taxes,
assessments, fees, or charges levied upon the Property. Grantor shall keep the Property
free of any liens or other encumbrances for obligations incurred by Grantor. Grantee shall
not be responsible for any costs or liability of any kind related to the ownership,
operation, insurance, upkeep, or maintenance of the Property, except as expressly
provided herein. Nothing herein shall relieve the Grantor of the obligation to comply with
federal, state or local laws, regulations and permits that may apply to the exercise of the
Reserved Rights.
F. Extinguishment. In the event that changed conditions render impossible the
continued use of the Property for the conservation purposes, this Conservation Easement
may only be extinguished, in whole or in part, by judicial proceeding.
G. Eminent Domain. Whenever all or part of the Property is taken in the exercise
of eminent domain so as to substantially abrogate the Restrictions imposed by this
Conservation Easement, Grantor and Grantee shall join in appropriate actions at the time
of such taking to recover the full value of the taking, and all incidental and direct
damages due to the taking.
H. Proceeds. This Conservation Easement constitutes a real property interest
immediately vested in Grantee. In the event that all or a portion of this Property is sold,
exchanged, or involuntarily converted following an extinguishment or the exercise of
eminent domain, Grantee shall be entitled to the fair market value of this Conservation
Easement. The parties stipulate that the fair market value of this Conservation Easement
shall be determined by multiplying the fair market value of the Property unencumbered
by this Conservation Easement (minus any increase in value after the date of this grant
attributable to improvements) by the ratio of the value of this easement at the time of this
grant to the value of the Property (without deduction for the value of this Conservation
Easement) at the time of this grant. The values at the time of this grant shall be the values
used, or which would have been used, to calculate a deduction for federal income tax
purposes, pursuant to Section 170(h) of the Internal Revenue Code (whether eligible or
ineligible for such a deduction). Grantee shall use its share of the proceeds in a manner
consistent with the purposes of this Conservation Easement.
1. Notification. Any notice, request for approval, or other communication
required under this Conservation Easement shall be sent by registered or certified mail,
postage prepaid, to the following addresses (or such address as may be hereafter specified
by notice pursuant to this paragraph):
To Grantor
[Name, address and fax number]
To Grantee:
[Name, address and fax number]
To the Corps:
[Name, address and fax number]
J. Failure of Grantee. If at any time Grantee is unable or fails to enforce this
Conservation Easement, or if Grantee ceases to be a qualified grantee, and if within a
reasonable period of time after the occurrence of one of these events Grantee fails to
make an assignment pursuant to this Conservation Easement, then the Grantee's interest
shall become vested in another qualified grantee in accordance with an appropriate
proceeding in a court of competent jurisdiction.
K. Amendment. This Conservation Easement may be amended, but only in a
writing signed by all parties hereto, and provided such amendment does not affect the
qualification of this Conservation Easement or the status of the Grantee under any
applicable laws, and is consistent with the conservation purposes of this grant.
L. [For use if there is a document describing the current condition of the
property. The language provided is applicable if there is a mitigation plan that
accurately describes the current condition and uses of the property. If there is not such a
plan, another document we agree is accurate and can be identified and is in our files can
be referenced.] Present Condition of the Property. The wetlands, scenic, resource,
environmental, and other natural characteristics of the Property, and its current use and
state of improvement, are described in Section , Appendix B of the Mitigation Plan,
dated , prepared by Grantor and acknowledged by the Grantor and
Grantee to be complete and accurate as of the date hereof. Both Grantor and Grantee
have copies of this report. It will be used by the parties to assure that any future changes
in the use of the Property will be consistent with the terms of this Conservation
Easement. However, this report is not intended to preclude the use of other evidence to
establish the present condition of the Property if there is a controversy over its use.
TO HAVE AND TO HOLD the said rights and easements perpetually unto Grantee for
the aforesaid purposes.
IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day
and year first above written.
[Signatures of the Grantor and Grantee in appropriate form]
Appendix IV - Project Bonding
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Appendix V - Approved Mitigation Banking Instrument
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Agreement to Establish the Flat Swamp Wetland Mitigation
and Stream Restoration Bank in Craven County, North Carolina
This Mitigation Banking Instrument Agreement ("MBI") is made and entered into on the
day of 2000, by The Triangle Group, Inc. (TTG) (collectively "Sponsor");
and the U.S. Army Corps of Engineers ("Corps"), Environmental Protection Agency ("EPA"),
U.S. Fish and Wildlife Service ("FWS"), National Marine Fisheries Service ("Iv'MFS"), North
Carolina Wildlife Resources Commission (NCWRC ), North Carolina Division of Water
Quality ("NCDWQ"), and North Carolina Division of Coastal Management ("NCDCM"),
collectively, the Mitigation Bank Review Team ("MBRT").
WHEREAS, the purpose of this MBI is to establish the Flat Swamp Wetland Mitigation and
Stream Restoration Bank ("the Bank") providing compensatory mitigation for unavoidable
wetland impacts separately authorized by Section 404 Clean Water Act permits in appropriate
circumstances;
WHEREAS, Sponsor is the record owner of that certain parcel of land containing approximately
386 acres located in Craven County, North Carolina, more fully described in the Flat Swamp
Mitigation Bank Plan - Phase I - Nonriverine Wetland Restoration and Enhancement and
Flat Swamp Mitigation Bank - Phase II - Flat Swamp Stream Restoration (proposed) as
shown on the attached survey. The Mitigation Plan for Phase I and survey will be attached and
incorporated herein by reference as Appendices A and B respectively; and
WHEREAS, the agencies comprising the MBRT agree that the Bank Site is a suitable mitigation
bank site, and that implementation of the Mitigation Plan should result in net gains in wetland
functions at the Bank Site.
NOW THEREFORE, it is mutually agreed among the parties to this MBI that the following
provisions are adopted and will be implemented upon signature of this MBI.
General Provisions
The goal of the Bank is to restore, enhance, and preserve forested wetland systems and
their functions and values to compensate in appropriate circumstances for unavoidable
wetland impacts authorized by Section 404 Clean Water Act permits in circumstances
deemed appropriate by the Corps after consultation with the other members of the
MBRT.
2. The parties to this MBI recognize and understand that, where practicable, on-site, in-kind
compensatory mitigation is preferred, unless use of the Bank is determined by the Corps
to be environmentally preferable.
Use of credits from the Bank to offset wetland impacts authorized by Clean Water Act
Section 404 permits shall be in compliance with the Clean Water Act and implementing
regulations, in addition to the following statutes, regulations, and policies:
A. Federal
a. Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251,
et seq., including specifically Section 401(a),
b. Rivers and Harbors Act of 1899, 33 U.S.C. § 403, et M.-
c. Fish and Wildlife Coordination Act (16 U.S.C., 661 et seg.);
d. National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,
including the Council on Environmental Quality's implementing
regulations, 40 C.F.R. Parts 1500-1508;
e. Executive Order 11990, Protection of Wetlands (May 24, 1977);
f Federal Guidance for the Establishment, Use and Operation of Mitigation
Banks, 60 Fed. Reg. 58605 (Nov. 28, 1995);
CF. Department of the Army, Section 404 Permit Regulations, 33 C.F.R.
Parts 320-330), and policies for evaluating permit applications to
discharge dredged or fill material;
h. Department of Transportation, Federal Highway Administration
Regulations, 23 C.F.R. Part 777, concerning Mitigation of Environmental
Impacts to Privately Owned Wetlands;
U.S. Environmental Protection Agency, Section 404 Regulations,
40 C.F.R. Parts 230-233 (guidelines for specification of disposal sites for
dredged and fill material);
Memorandum of Agreement between the Environmental Protection
Agency and the Department of the Army concerning the Determination of
Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines
(February 6, 1990);
B. North Carolina
a. N.C. Admin. Code tit. 15A, r. 02H.0500;
b. N.C. Admin. Code tit. 15A, r. 02B.0100 and r. 02B.0200; and
c. North Carolina Wetlands Restoration Program, N.C. GEN. ST,AT.
§ 143-214.8 et seq.
4. The Corps is responsible for making final permit decisions pursuant to Section 10 of the
Rivers and Harbors Act and Section 404 of the Clean Water Act, including final
determinations of compliance with the Corps' permit regulations and the
Section 404(b)(1) Guidelines. The Corps has been responsible for conducting all

meetings with state and federal resource/regulatory agencies and Sponsor for establishing
the Bank. The Corps will determine the amount of compensation needed for a given
Department of the Army Section 404 permit, including permits under the Nationwide
Permit program. In this MBI, the MBRT has established the total number of restoration-
equivalent credits which may become available for sale from the Bank upon
implementation of all activities as described in this MBI, including but not limited to the
terms of Appendix A. In the case of permit applications and compensatory mitigation
required solely under the Section 401 Water Quality Certification rules of North
Carolina, the NC Department of Water Quality (NCDWQ) will determine the amount of
credits that can be withdrawn from the Bank.
5. Modifications to this MBI may be proposed by any MBRT member or by Sponsor. Any
proposed modification shall be made in writing and submitted to all MBRT members and
Sponsor. All MBRT members and Sponsor must approve, in writing, the proposed
modification for it to take effect.
6. Any MBRT member can withdraw from this MBI with ten (10) days advance written
notice to all other MBRT members and Sponsor, Member withdrawal shall not affect
any prior sale of credits and all remaining parties shall continue to implement and enforce
the terms of this MBI. Any independent review authority as to specific Section 404
permit applications possessed by a withdrawing party will, however, remain in full force
and effect.
7. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of
the parties hereto and their respective heirs, successors, assigns, and legal representatives.
8. This MBI constitutes the entire agreement between the parties concerning the subject
matter liereof and supersedes all prior agreements or undertakings.
9. In the event any one or more of the provisions contained in this MBI are held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect any other provisions hereof, and this MBI shall be
construed as if such invalid, illegal or unenforceable provision had not been contained
herein.
10. This MBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.
ll. This MBI may be executed by the parties in any combination, in one or more
counterparts, all of which together shall constitute but one and the same instrument.
12. Any delay or failure of the Sponsor shall not constitute a default hereunder to the extent
that such delay or failure is primarily caused by any act, event or condition beyond the
Sponsor's reasonable control and significantly adversely affecting its ability to perform
its obligations hereunder including; (1) acts of God, lightning, earthquake, fire, landslide,
drought, hurricane, storm, flood, or interference by third parties; (ii) condemnation or
other taking by any governmental body; (iii) change in applicable law, regulation, rule,
ordinance or permit condition, or the interpretation or enforcement thereof; (iv) any
3
order, judgment, action or determination of any federal, state or local court,
administrative agency or government body; or (v) the suspension or interruption of any
permit, license, consent, authorization or approval. If the performance of Sponsor is
affected by any such event, Sponsor shall give written notice thereof to the MBRT as
soon as is reasonably practicable and to the extent necessary and appropriate as
determined by the MBRT, the Sponsor shall provide adequate mitigation acceptable to
the Corps or permitting agency to compensate for credits that have been debited from the
Bank in the event that restoration or enhancement acreage sufficient to make up debited
credits is adversely impacted by any condition or conditions referenced in this paragraph.
13. No third party shall be deemed a beneficiary hereof and no one except the signatories
hereof, their successors and assigns shall be entitled to seek enforcement hereof. No
party or third party other than Sponsor shall have any property rights to the Bank Site,
except as otherwise expressly provided herein.
14. The MBRT shall be chaired by the representative from the Corps' Wilmington District.
The MBRT shall review monitoring and accounting reports as more fully described
herein below. In addition, the MBRT will review proposals for remedial actions
proposed by Sponsor or any of the agencies represented on the MBRT. The MBRT's
role and responsibilities are more fully set forth in Sections II(C)(3&6) of the Federal
Guidance on Mitigation Banking [See 60 Fed. Reg. 58605 (Nov. 28, 1995)]. The MBRT
will work to reach consensus on all required actions.
Mitigation Plan
15. The Bank will be developed in two (2) phases: Phase I - Nonriverine Wetland
Restoration and Enhancement and Phase II - Flat Swamp Stream Restoration. Each
phase will be developed separately with Phase I being implemented first. Plans for Phase
I and Phase II will be approved separately by the MBRT.
16. The Bank Site is located in the Neuse River watershed in the headwaters of Flat Swamp
Creek east of Dover and south of Fort Barnwell in Craven County, NC. A more detailed
description of the baseline conditions on the site is contained in the Mitigation Plan.
17. Sponsor will perform the work described in the Proposed Action Section of the
Mitigation Plan, including hydrologic and soil modifications and plantings. The purpose
of the work, and the objective of the Bank, is to (Phase I) restore natural wetland
community types in areas of prior converted (PC) agricultural fields, enhance existing
wetland community types and (Phase II) restore sections of Flat Swamp Creek which
historically originated on the Bank site.
18. Sponsor is responsible for assuring the success of the restoration and enhancement
activities as specified in the Mitigation Plan, and for the overall operation and
management of the Bank. Sponsor shall monitor the Bank Site for at least 5 years as
described in the Monitoring Section of the Mitigation Plan, or until such time as the
MBRT determines that the performance criteria described in the Mitigation Plan have
been met, whichever period is longer.
4
19. Sponsor shall implement any remedial measures required pursuant to the terms of this
MBI.
20. Sponsor shall provide to each member of the MBRT the reports described in the
Monitoring Section of the Mitigation Plans.
21. The Corps shall review said reports and provide a written response. At any time, after
consultation with Sponsor and the MBRT, the Corps may direct Sponsor to take remedial
action at the Bank Site. Remedial action required by the Corps shall be designed to
achieve the performance criteria specified in the Mitigation Plan. All remedial actions
required shall include an implementation schedule, which shall take into account physical
and climatic conditions.
22. When all performance criteria as described in the Mitigation Plan have been met, as
reasonably determined by the MBRT, the '1MBRT shall provide written notice to that
effect to Sponsor stating that: (a) all required performance criteria have been met; (b)
Sponsor permanently is released from all iilrther monitoring, remedial measures or the
ecological performance obligations with regard to the Bank Site; and (c) Sponsor's
security obligations as specified in this MBI fully have been satisfied. Thereafter,
Sponsor shall have no further obligations whatsoever with regard to the Bank Site except
that, if any credits remain unsold or otherwise finally accounted for, Sponsor shall
continue to have sole control over the sale of any such remaining mitigation credits, and
likewise shall continue to be required to provide all related mitigation credit accounting
reports as specified in this MBI until all such credits are sold or otherwise finally
accounted for. Notwithstanding the above, the parties to this agreement understand that
if all credits are not sold within one year of the bank meeting performance criteria, the
Corps, in its discretion, may require additional information on the current condition of the
bank prior to agreeing to the utilization of credits from the bank.
23. At any time prior to the completion of all performance criteria as defined in Paragraph 21
above, Sponsor may determine voluntarily that remedial action may be necessary to
achieve the required performance criteria. In such instance, Sponsor shall provide notice
of its proposed remedial action to all members of the MBRT. No significant remedial
actions shall be undertaken by Sponsor without the express concurrence of the Corps, in
consultation with the MBRT.
24. The mitigation site may be used for research purposes pending approval of any such
plans by the MBRT.
Use of Mitigation Credits
25. The Geographic Service Area (GSA) is the defined area wherein the Bank can reasonably
be expected to provide appropriate compensation for impacts to wetland and/or other
aquatic resources. The GSA for the Bank shall include the Neuse hydrologic Unit
(03020202) in North Carolina west of New Bern along the Neuse River. The location
map of the Neuse Hydrologic Unit (03020202) is attached and incorporated herein by
reference as Appendix C. Adjacent service areas may be considered for use by the
MBRT on a case-by-case basis.
J
26. The Mitigation Plan is intended to result in the following forms and amounts in acres, of
compensatory mitigation.
Summary of proposed restoration and enhancement activities within the
Flat Swam Wetland Miti ation and Stream Restoration Bank
Existing plant Mitigation Proposed Area
community e Type Activities
Agricultural fields a/
(PC) and Flat Swamp Wetland and Plug ditches, site prepare by ripping, 339.0 ac
Creek Stream construct ephemeral ponds, and plant
Restoration wetland vegetation
Wet Pine Flatwoods
Enhancement Plug ditches 8.0 ac
Nonriverine Wet
Hardwood Forest Enhancement Plug ditches 39.0 ac
Total Area 386.0 ac
a / Nonriverine Wet Pine Flatwoods and Wet Hardwood Forest (Phase I) = 318.34 acres
Riverine Small Coastal Plain Stream Swamp (Phase 11) = 20.66 acres
27. Successful implementation of the Mitigation Plan will result in the creation of the
following number of mitigation credits:
Wetlands:
165.05 credits of Nonriverine Wetland Community Types
Based on formulas developed by the WRP, the credit calculations are as follows:
Restoration (R) = 318.34 acres
Enhancement (E) = 47 acres
# of credits = R/2 + (E/4R x R/2) = 318.34/2 + [47/(4 x 318.34) x 318.34/2]
= 159.17 + (0.037 x 159.17) = 165.05 credits
Given the number of credits calculated above (165.05), the credit makeup for Phase I of the Flat
Swamp Bank is:
1 credit = 1.93 acres or restoration and 0,285 acres of enhancement
318.34 acres restoration i 165,05 total credits = 1.93 acres of restoration per credit
47 acres enhancement / 165.05 total credits = 0.285 acres enhancement per credit
6
Total Wetland Credits Available from the Bank: 165.05 credits
Note: 'The propose 20.66 acres of Riverine Small Coastal Plain Swamp (9000 linear ft X 100 ft)
are not included in the above calculations. This area is reserved for Phase II - Flat Swamp
Stream Restoration and will be developed at a later date. The amount of stream restoration will
be determined following field investigations and will be approved separately by the MBRT.
Streams:
• The number of stream restoration credits generated at Flat Swamp have yet to be determined
but will be approved separately by the MBRT as a part of the final mitigation plan for this
phase of the bank. Generally, it is anticipated that one stream credit will compensate for one
foot of stream impact unless special circurnstances require a higher ratio as determined by a
permitting agency.
28. It is anticipated by the parties that use of mitigation credits shall be "M-kind;" that is, that
the above described types of wetland and stream restoration credits will be used to offset
the same type of wetland and stream impacts.
29. It is anticipated by the parties that in most cases in which the Corps, after consultation
with members of the MBRT, has determined that mitigation credits from the Bank may
be used to offset wetland impacts authorized by Section 404 permits, for every one acre
of impact, one mitigation credit will be debited from the Bank. Deviations from the one-
to-one compensation ratio may be required by the Corps on a case-by-case basis where
justified by considerations of functions of the wetlands impacted, the severity of the
impacts to wetlands, whether the compensatory mitigation is in-kind, and physical
proximity of the wetland impacts to the Bank Site. For stream impacts, stream credits
from this bank will generally only be used to compensate for impacts to same order or
lower streams.
30. Notwithstanding the above, all decisions concerning the appropriateness of using credits
from the Bank to offset impacts to waters and wetlands, as well as all decisions
concerning the amount and type of such credits to be used to offset wetland and water
impacts authorized by Department of the Army permits shall be made by the Corps,
pursuant to the Clean Water Act, and implementing regulations and guidance, after notice
of any proposed use of the Bank to Sponsor and all members of the MBRT, and
consultation with same regarding such use. In the case of compensatory mitigation
required solely under Section 441, water quality certification, the NCDWQ will notify
Sponsor and the MBRT of such use and the proposed credit withdrawal.
31. The Bank Sponsor shall be entitled to sell Fifteen percent (15%) of the Bank's total
restoration credits (24.76 credits) and fifteen percent (15%) of the Bank's stream
restoration credits (to be determined and approved by the MBRT - Phase II) immediately
upon completion of all of the following:
a.) Recordation of a conservation easement offering permanent, perpetual conservation
use of the Bank Site.
7
b.) Execution of this MBI by all partners whose names appear as signatories.
c.) Delivery of the security required in Paragraph 37 of this MBI.
d.) Final mitigation plan approval
No credits will be released until an easement approved by the MBRT is placed on the
entire site and financial assurances for both phases are in place.
32. Subject to Sponsor's continued satisfactory completion of all required performance
criteria and monitoring, additional restoration mitigation credits will be available for sale
by Sponsor on the following schedule:
Milestone Percent Wetland
Release Restoration
Credits
MBRT approval of Plan, execution 15% 24.76
of MBI, recordation of conservation
easement, and posting of acceptable
financial assurance
Following project implementation, 10% 16.50
Year 1 monitoring and MBRT
approval of Annual Report
Following year 2 of monitoring 10% 16.50
phase and MBRT approval of
Annual Report
Following year 3 of monitoring 10% 16.50
phase and MBRT approval of
Annual Report
Following year 4 of monitoring 15% 24.76
phase and MBRT approval of
Annual Report
Following year 5 of monitoring 15% 24.76
phase and MBRT approval of
Annual Report
Final approval of project by MBRT 25% 41.27
TOTALS 100% 165.05
The above schedule assumes acceptable survival and growth of planted vegetation,
attainment of wetland hydrology and stream restoration performance criteria as described
under the performance criteria in the Monitoring Section of the Mitigation Plan, and
further assumes a determination by the MBRT of functional success as defined in the
Mitigation Plan prior to release of the final 25% of wetland and stream restoration
credits.
8
33. Sponsor shall develop accounting procedures for maintaining accurate records of debits
made from the Bank that is acceptable to the MBRT. Such procedures shall include the
generation of a debit report by Sponsor documenting all credits used at the time they are
debited from the Bank. Debit reports shall be provided to each member of the MBRT
within 30 days of the date of credit use. In addition, Sponsor shall prepare an Annual
Report, to be provided to each MBRT member within thirty (30) days of each
anniversary of the date of execution of this MBI, showing all credits used and the balance
of credits remaining. Sponsor's reporting obligations hereunder shall end upon the sale of
all credits or termination of this MBI, whichever event first occurs.
34. Sponsor may request addition of other properties to the Bank. In such event, the terms
and conditions of any proposed property addition shall be set forth in an amended
mitigation banking instrument that will be subject to separate review and, if appropriate,
approval by the MBRT.
35. If monitoring of the Bank under this MBI establishes that mitigation and restoration as
required under the MBI has failed or only partially succeeded, corrective measures shall
be required to assure that performance standards are being met. If, as a result of
maintenance and monitoring reports, it is determined that performance standards are not
being met, the MBRT shall provide notice to Sponsor who then shall prepare an analysis
of the cause of the failure, propose corrective actions and specify a time frame for
implementing corrective actions. Minor corrective measures do not require a formal
notification process and may be accomplished as a part of routine maintenance; such
measures shall be identified in the next subsequent monitoring report. If satisfactory
corrective actions are not taken by Sponsor after formal written notice from the MBRT,
then the MBRT is entitled to give notice that the agreed-upon corrective actions have not
been satisfied and trigger the use of the financial assurances. Under such circumstances
the MBRT also is entitled to, in its sole discretion, notify Sponsor of the immediate
suspension of further sale of credits from the Bank. Upon completion of required
remedial action(s) to the satisfaction of the MBRT, as documented in written notice from
the MBRT to Sponsor, credit sales automatically shall be allowed to resume, subject to
any additional requirements reasonably specified by the MBRT in the written notice.
If there are repeated failures by Sponsor in complying with the performance standards for
success under the terms of this MBI, the NIBRT reserves the right to declare a material
default under the terms of Sponsor's security and said security shall be used to replace
lost wetland functions and otherwise fulfill the terms of the wetland restoration plan
required by this MBI.
Final release of Sponsor's obligations hereunder shall occur when the MBRT reasonably
determines that all performance standards have been met and all restoration credits have
been debited from the Bank.
9
Property Disposition
36. Sponsor shall grant a conservation easement, in fonrn acceptable to the MBRT, sufficient
to protect all of the Bank Site. The easement shall be perpetual, preserve all natural
areas, prohibit all construction, and prohibit any activity that would materially alter the
biological integrity or functional and education value of wetlands within the Bank Site,
consistent with the Mitigation Plan. The purpose of the easement will be to assure that
future use of the Bank Site will result in the restoration, protection, maintenance, and
enhancement of the functional values of the wetlands and wildlife habitat described in the
Mitigation Plan. The Coastal Land Trust is proposed to hold the easement and it has
tentatively agreed to accept the easement.
Financial Assurances
37. Sponsor shall provide the Corps, on behalf of the MBRT, with financial assurances, in a
form acceptable to the Corps, sufficient to assure completion of all remaining restoration
and enhancement activities, and required reporting and monitoring. Sponsor presently
proposes to satisfy this requirement by providing a Construction and Maintenance Bond
in an amount equal to the estimated cost of' construction and completing all remaining
maintenance and monitoring costs required under this MBI as set forth on Appendices D
and E, attached and incorporated herein. Sponsor's final, executed security assurances
shall be provided to a party acceptable to the MBRT prior to the sale of any of the credits
from the bank. The Corps will not be the beneficiary of any financial assurance
mechanism. Sponsor's security obligations shall terminate and be released immediately
after the MBRT determines, in writing that all performance standards as stated in the
Mitigation Plan have been complied with.
Miscellaneous
38. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below:
Sponsor:
The Triangle Group, Inc.
1001 Capability Drive
Research I - Suite 312
Centennial Campus
Raleigh, NC 27606
Corps:
Mr. David Lekson P.W.S.
U.S. Army Corps of Engineers
Washington Regulatory Field Office
10
Post Office Box 1000
Washington, NC 27889-1000
EPA:
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Wetlands Regulatory Section - Region IV
Sam Nunn Atlanta Federal Center
61 Forsyth St. , SW
Atlanta, GA 30303
FWS:
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, NC 27636-3726
NMFS:
Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Division
101 Pivers Island Road
Beaufort, NC 28516
NCWRC:
Mr. Bennett Wynne
N.C. Wildlife Resources Commission
901 Laroque Ave.
Kinston, NC 28501
NCDCM:
Mrs. Kelly Williams
N.C. Division of Coastal Management
1638 Mail Service Center
Raleigh, NC 27699-1638
NCDWQ:
Mr. Mac Haupt
N.C. Division of Water Quality
Wetland Restoration Program
P.O. Box 29535
Raleigh, NC 27626
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Flat Swamp Wetland and Stream Mitigation Bank
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
By:
U.S. Environmental Protection Agency
By: ?7
National Marine Fisheries Service ?"
By:
NC Division of Water Quality
By:
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
12
Date:
Date:
Date: - Y?
Date:
Date:
Date:
Date:
Date:
e
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
B y:
U.S. Environmental Protection Agency
By:
National Marine Fisheries Service
By:
NC Division of Water Quality
By:
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Date:
Date: ," -<i
Date:
Date:
Date:
Date:
Date:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
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In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
Date:
By:
U.S. Environmental Protection Agency
By:
National Marine 'sheries Service
By: -
NC Division of Water Quality
By:
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
Date:
Date: 7ZZ? Q
Date:
Date:
Date:
Date:
a.4
12
• In witness whereof, the parties hereto have executed this Agreement.
U.S: Army Corps of Engineers
. By:
U.S. Fish and Wildlife Service
By:
U.S. Environmental Protection Agency
S By:
National Marine Fisheries Service
By.
NC Division of Water Quality
• By'
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
Date:
Date:
Date:
Date:
Date:
Date:
Date:
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In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
By:
U.S. Environmental Protection Agency
By:
National Marine Fisheries Service
By:
NC Division of Water Quality
By:
NC Division of Coastal Management
Date:
Date:
Date:
Date:
Date:
By:
NC Wildlife Resources Commission d
By: ??,c?Bank Sponsor - The Triangle Group, Inc.
By:
I2
t
Date:
Date:
Date:
UWW NI.WKf Y1V (SS >5e] '111Ub 'UU 16:33 N0.381 03/03
Flat Swamp Wetland Mitigation and Stream Restoration Bank - Final Mitigation
Banking Instrument
Kerr T. tev ' s D e
Directo Division of Water Quality
NC - Department of Environment and Natural Resources
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of
By:
& IL ew
lRank4if5risor - The Triangle Group, Inc.
By:
Date: 18o4m4co
W 1-
Date: !7 l Zj 2 00 0
RL C, r- v c- L)
A! } ' 2000

List o#' Appendices
Appendix A: Flat Swamp Wetland Mitigation and Stream Restoration
Bank Plan -- Phase I (Pending approval)
Appendix B: Property Survey and Legal Description
Appendix C: Map - General Service Area
Appendix D: Construction Costs
Appendix E: Maintenance and Monitoring Costs
13
APPENDLY A
APPENDS 13
Jimmie and :-inn Davis Property
Tract 2 - 233.4 acres
Bearing Distance
N 89 degrees 16 minutes 21 seconds W 2025.40 ft.
S 00 degrees 32 minutes 59 seconds W 25 18.00 ft,
S 00 decrees 06 minutes 04 seconds W' 2324.79 rt.
S 88 degrees 57 minutes 24 seconds W 2091.66 ft.
N 00 degrees 59 minutes 00 seconds E 2981.27 ft.
N 00 degrees 48 minutes 26 seconds E 1249.1 ! ft.
N 00 degrees 23 minutes 46 seconds W 687.07 ft.
S 89 degrees 16 minutes 21 seconds E 19.16 ft.
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PROPERTY MAP
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c RES: 1 53.2q SCALE. 132.
Include:
11 Curia nI adjoining landowners
21 Properly boundaries (in red)
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Appendix D
Construction Costs 77 Cost
Engineering - topographic survey, hydrologic design, stream
restoration data collection, stream design $65,000
Implementation - site prep, grading, ditch plugs, stream channel $95,000
Planting - seedlings, transportation, labor, herbicide application,
oversight - 339 ac @$400/ac $135,600

TOTAL: $295,600
14
Appendix E
Maintenance and Monitoring Costs Cost
Maintenance: mowing, herbicides, precommercial thinning, ditch
plugs, stream channel, roads, erosion control, pest control
$15,000 / year X 5 years $75,000

Monitoring: vegetation, hydrology, soils data collection, analyses,
and Annual Reports, field tours $10,000 / year X 5 years $50,000

TOTAL: $125,000
15
Appendix VI - DWQ Mitigation Banking Instrument & Credit Accounting Ledger
FLAT SWAMP RIPARIAN BUFFER AND NUTRIENT
MITIGATION BANKING INSTRUMENT
1. PREAMBLE
This Mitigation Banking Instrument, is for the establishment, use,
operation, and maintenance of the Flat Swamp Riparian Buffer and
Nitrogen Offset Mitigation Bank (Bank) and is made and entered into by
and among GreenVest/Flat Swamp, L.L.C. (GV) and the North Carolina
Department of Environment and Natural Resources -Division of Water
Quality (DWQ).
GreenVest Flat Swamp LLC owns fee simple title to the 386 acres (the
"property") in Craven County, North Carolina within the Neuse Basin upon
which the Bank will be established.
The purpose of the Bank is a) to improve water quality through the
restoration of a historic coastal plain, headwater stream system, b) enhance
existing and impaired waters of the State and; c) restoration of forested
riparian buffer habitat within the Neuse River Basin in the State of North
Carolina, United States Geological Survey (USGS) including Hydrologic
Unit Code (HUC) 030202. The goal of improving water quality will be
achieved by 1) restoring an historic headwater stream system 2) restoring
hydrologic connectivity to Flat Swamp Creek and the Neuse River and 3)
restoring 293.69 acres of agricultural fields to riparian buffer dedicated to
Neuse Nutrient Offsets of which 19.50 acres of riparian buffer would be
dedicated to Neuse Buffer Credits. This project was initially approved as a
wetland mitigation bank (see BPDP) under a mitigation banking instrument
(MBI) executed August 16, 2002.
This documents objective is to establish Nitrogen Offset credits, and Neuse
Stream Buffer credits to provide mitigation to third parties, public or
private, within the Neuse River Basin, and/or to sell resulting credits to third
parties public or private.
II. AUTHORITY
The Bank will be used to provide nitrogen offset and stream buffer
mitigation in accordance with the requirements of 15A NCAC 2B .0234
(Wastewater Discharge Requirements), 2B .0235 (Basinwide Stormwater
Requirements), 15A NCAC 2H .0506(h) (NC Stream, Wetland and Buffer
Mitigation), 15A NCAC 2B .0233 (Neuse Buffer Rule), 15A NCAC 213
.0235 (Neuse Nutrient Sensitive Water Management Plan) 2B .0240
(Nutrient Offset Payments) under such authority as established in SL 2007-
438 and any amendments thereto. All activities will be consistent with rules
adopted by the Environmental Management Commission and all other
applicable authorities.
Page I 1
III. ESTABLISHMENT OF BANK PARCEL(S)
A. The aforementioned property will be subject to a conservation easement or
restrictive covenant as described in Section III-E ("Parcel') included in the
BPDP. The Bank Parcel Development Package (BPDP), contains detailed
information concerning site location, existing conditions, proposed
restoration activities, monitoring and maintenance plans, financial
assurances (III(D)), and associated mitigation potential (including credit
generation, service area, and accounting as appropriate for each regulatory
authority cited above).
B. GV agrees to perform all necessary work, in accordance with the provisions
of this Banking Instrument, to establish and/or maintain riparian buffer and
nitrogen offset buffer until it is demonstrated to the satisfaction of the DWQ
that the restored property complies with all conditions contained herein, or
until all credits are sold, whichever is later.
C. GV will obtain all appropriate environmental documentation, permits or
other authorizations needed to establish and maintain the Bank. This
Banking Instrument does not qualify or substitute for such authorization.
D. Financial Assurance Requirements: Following approval of the BPDP,
GreenVest/Flat Swamp, LLC shall provide a Performance Bond, Letter of
Credit or other form of financial assurance acceptable to DWQ from a.
surety that is rated no less than an "A-" as rated by A.M. Best. The Financial
Assurance amount shall be 125% the estimated cost for implementation of
the restoration plan included in the BPDP, but no less than $100,000.00.
After completion of the construction, a Monitoring Bond will be substituted
for the initial assurance vehicle. The Penal Sum of said Monitoring Bond
shall be for two times the estimated cost to implement the monitoring and
maintenance plan but no less than $100,000.00 in amount. The Monitoring
Bond shall be in effect for a period of five (5) years.
E. Real Estate Provisions: Prior to the certification of any credits, GV shall
• record a permanent conservation easement(s) or record restrictive covenants
• to the deed(s) on all Bank Parcels to provide protection to the restored
riparian buffer from activities that would impair its ability to provide
nutrient abatement to waters of the Neuse River Basin. The form of the
• conservation easement or restrictive covenants shall be consistent with the
• standards employed by the State of North Carolina in the protection of
restored riparian buffers and shall be approved by the DWQ prior to the
certification of any credits. GV shall not grant additional easements, right of
• way, or any other property interest in or to the project areas without the
• written consent of the DWQ or its designee. In the case of a conservation
easement, GV will hold the easement until all credits are released
• from the Bank Parcel. At the conclusion of Bank activities, the conservation
easement(s) may be permanently transferred to a DWQ approved land trust
• or non-profit group to be held in perpetuity. Please refer to the BPDP for a
sample conservation easement.
• Page 12

F. As-Built Reports: GV agrees to submit an as-built report for each Parcel
within 30 days after completing the establishment of the project. The as-
built report will describe in detail any deviation from the BPDP. In addition,
the as-built report will document finished grades, and surface and
groundwater elevations, as appropriate.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions: GV agrees to perform all necessary work to mairitain
the Parcel(s) consistent with the maintenance criteria established in this
instrument. GV shall continue with such maintenance activities until all credits
are sold or the Parcel is closed. Deviation from the approved BPDP is subject to
review and written approval by DWQ or its designee.
B. Monitoring Provisions: GV agrees to perform all necessary work to monitor the
Bank to demonstrate compliance with the Success Criteria established in this
Banking Instrument specific to the conditions of the attached BPDP.
C. Vegetative Success Criteria: Vegetative Success Criteria will be based upon the
density and growth of character tree species. "Character Trees" are defined as
planted or volunteer species identified from a survey of local vegetation on less
degraded sections of the specified reference site and from reference literature
that details native species. A list of Character Tree species for this project is
detailed in a planting plan and planting schedule within the BPDP. Vegetative
Success Criteria will be based upon guidelines set forth in the Guidelines for
Riparian Buffer Restoration prepared by the North Carolina Ecosystem
Enhancement Program (or subsequent updated versions of this Guidance m
place at the date of acceptance of a BPDP). Success is defined as the survival of
an average density of 320 Character Trees per acre. Planted species must
account for a minimum of 30 percent of the above densities. If vegetative
success criteria are not achieved based on acreage density calculations from
combined monitoring plots over the entire restoration area, supplemental
planting may be performed with tree species approved by DWQ. Supplemental
planting may be performed as needed until vegetative success criteria are met.
No quantitative measurements of herb assemblages will be required to meet the
vegetative success criteria. The quantity of monitoring plots will be determined
in accordance with The Carolina Vegetative Sampling Protocol (Levels I & II),
such that no more than 2 percent of any one Parcel is encompassed in
monitoring plots (see BPDP). Visual estimates of the percent cover of
herbaceous species and photographic evidence will be reported for informational
purposes. Visual observation of streambank stability will also be made. Areas of
significant bank erosion will be repaired through matting and/or vegetative
planting.
D. Monitoring Reports: GV shall submit to the DWQ an annual monitoring report,
no later than December 31 each year for five (5) years after the first full growing
Page 13
season, describing the conditions of each Bank Parcel and relating those
conditions to the success criteria. Reports will be submitted annually and shall
contain the following:
1. A U.S. Geological Survey map showing location of the Bank;
2. A detailed narrative summarizing the condition of the Bank and all
regular maintenance activities;
3. Appropriate topographic maps showing location of sampling plots,
permanent photo points, location of transects, etc.;
4. Monitoring data, including specific vegetative counts and photographs;
and
5. A copy of the Bank credit/debit ledger.
E. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
success criteria described in this instrument, GV shall develop necessarJ
contingency plans and implement appropriate remedial actions for the Bank in
coordination with the DWQ or designee. If the DWQ determines that the Bank
is operating at a deficit (i.e., GV is selling or transferring credits not yet
available), the sale/transfer of credits will immediately cease, and the DWQ, in
consultation with GV, will determine what remedial actions are necessary to
correct the situation.
V. OPERATION OF BANK
A. Nitrogen Abatement of Restored Riparian Buffer: GV and DWQ
agree that the pounds of nitrogen offset per acre of restored riparian
buffer shall be two thousand two hundred and seventy three point two
(2,273.2 lbs/acre) as established by the DWQ and applied to existing
riparian buffer-based nitrogen abatement sites across the State of
North Carolina.
Riparian Buffer: GV and DWQ agree that the credit ratio shall be a
1:1 for every acre of Riparian Buffer restored.
B. Establishment and Release of Credits: Upon submittal of all
appropriate documentation by GV, and subsequent approval by DWQ
or its designee and unless sooner approved by DWQ, it is agreed that
the mitigation credits associated with this Bank will become available
for sale to a third party in accordance with the following schedule.
Table 1 -Credit Release Schedule
Task Project Milestone % Credit
Available
for Sale
1 Bank Parcel Development Package Approved by DWQ, Conservation 20
Easement or Restrictive Covenants Recorded and Performance Bond
Purchased
2 Mitigation Site Earthwork, Planting and Installation of Monitoring 20
Devices Completed
3 Approval of As-Built Report and Monitoring Bond Purchased 10
Page 14
4 Submit Monitoring Report #1 to DWQ (meets success criteria) 15
5 Submit Monitoring Report #2 to DWQ (meets success criteria) 10
6 Submit Monitoring Report #3 to DWQ meets success criteria 10
7 Submit Monitoring Report #4 to DWQ (meets success criteria) 10
8 Submit Monitoring Report #5 to DWQ (meets success criteria) 5
Total 100%
C. Projects Eligible to Use the Bank. Projects eligible for utilization of
the credits are those requiring authorization under the requirements of
15A NCAC 2B .0234 (Wastewater Discharge Requirements), 2B
.0235 (Basinwide Stormwater Requirements), and 02B .0242
(Mitigation Program for Protection and Maintenance of Existing
Riparian Buffer) 15A NCAC 2H.0506(h) (NC Stream, Wetland and
Buffer Mitigation), 15A NCAC 2B .0233 (Neuse Buffer Rule), 15A
NCAC 213 .0235 (Neuse Nutrient Sensitive Water Management Plan)
2B .0240 (Nutrient Offset Payments) under such authority as
established in SL 2007-438 and any amendments thereto provided
such use has met all applicable requirements and is authorized by the
appropriate authority.
D. Procedure for Debiting or Crediting the Bank: GV shall maintain
three credit ledgers: 1) one accounting for nitrogen offset credits (in
square feet) (NOC), which are generated by buffer areas both < 50
feet in width; and >51 feet in width, 2) one for non-riparian wetland
mitigation units (WMU), 3) one for stream mitigation units (SMU)
and one for Neuse Buffer (NBC). The ledgers (see the BPDP) shall
record the area of available area for each credit value and all
associated debits and credits. GV reserves the right to amend this
MBI to recognize post construction headwater stream formation or
additional wetland formation. No debits or credits to the ledger shall
be made without the written concurrence of the DWQ, MBRT or its
designee, and GV. All written concurrences shall be kept in the
ledger. The accounting and tracking presented in the ledgers and
overseen by DWQ and the MBRT will 1) compartmentalize all state
and federal bank values, 2) allow for accurate tracking of sales and
drawdown's, and 3) prevent "double-dipping" of the same.
VI. OTHER PROVISIONS
A. GV will allow, or otherwise provide for, access to the Parcel(s) by the DWQ
or other parties authorized by the DWQ, as necessary, for the purpose of
inspection and compliance with the terms and conditions of this Banking
Instrument and the conservation easement or restrictive covenants.
Inspecting parties shall provide reasonable notice, of not less than 24 hours,
to GV, prior to inspection of Bank.
B. Force Majeure: GV will not be responsible for Bank failure that is attributed
Page 15
to natural catastrophes such as flood, drought, disease, regional pest
infestation, etc. that are beyond the control of GV. DWQ must concur in
writing that a. force majeure event has occurred.
C. Validity, Modification, and Termination of the Banking Instrument: This
Banking Instrument will become valid on the date of the last party's
signature. This Banking Instrument may be amended or modified only with
the written approval of all signatory parties.
D. Specific Language of Banking Instrument Shall Be Controlling: To the extent
that specific language in this document changes, modifies, or deletes terms
and conditions contained in those documents that are incorporated into the
Banking Instrument by reference, and that are not legally binding, the
specific language within the Banking Instrument shall be controlling.
E. Dispute Resolution. Any disputes between the Bank Sponsor and the DWQ
regarding the attainment of success criteria and release of credits from a
specific site and appropriate monitoring, maintenance and/or remedial onsite
activities shall first be addressed among the field staff of DWQ and GV field
personnel and then, if not settled, raised to the level of the individual
signatories to the Banking Instrument or their designees.
F. Notices: Unless otherwise provided herein, all notices and other
communications which may be or are required to be given or made by any
party to the other in connection herewith shall be in writing and shall be
deemed to have been properly given and received on the date delivered in
person or deposited in the United States mail, registered or certified, return
receipt requested, to the addresses setut below, or at such other addresses as
specified by written notice delivered in accordance herewith.
If to GV: 1001 Capability Drive, Suite 312
Raleigh, North Carolina 27604
If to DWQ:
G. Entire Agreement: This Agreement constitutes the sole and entire agreement
among the parties hereto and no modification of this Agreement shall be binding
unless in writing and signed by all parties hereto.
H. Applicable Law: This Agreement shall be construed under the laws of the State
of North Carolina.
Page 16
GreenVest/Flat Swamp, LLC:
By:

Name: Douglas Lashley
Title: Managing Member
North Carolina Department of Environment and Natural
Resources: Division of Water Quality:
By:
Name:
Title:
Page j 7
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