20070747 Ver 1_Mitigation Plans_20090316

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March 16, 2009
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Mr. Eric Kulz
Environmental Senior Specialist
NCDWQ Wetlands and Stormwater Branch
401 Oversight and Express Review Permitting Unit
2321 Crabtree Blvd.
Suite 250
Raleigh, NC 27604
Re: Flat Swamp Mitigation Bank
Neuse Buffer and Nutrient Offset Mitigation Plan
Bank Parcel Development Package
Craven County
DWQ #07-0747
Dear Mr. Kulz:
GreenVest/Flat Swamp has reviewed the comments made by your staff for the Flat Swamp Mitigation
Bank - Neuse Buffer and Nutrient Offset Mitigation Plan. Your prompt review of the previous submittal
and generation of comments was greatly appreciated. Our response regarding the 401 Oversight Express
Review Permitting Unit comments are as follows:
• Figure 4: Figure 4 shows areas in blue as being stream features subject to the Neuse Buffer
Rules. However, the southern feature on the property is shown with three reaches being subject
to the Buffer Rules; a diagonal section, a section along the west property boundary, and a section
extending from the west property boundary to the east side of the site and continuing off-site as
the existing Flat Swamp Creek.
This configuration does not coincide with the January 22, 2009 stream determination letter from
DWQ. Please note that on the signed map attached to the letter, the southern diagonal reach and
the reach along the western property boundary are labeled "Exempt" (Not Subject), while the
remaining features (in the configuration of a backward "E") are labeled as "Subject".
Please revise Figure 4, and check the calculations of both buffer credit and nutrient offset credit
to ensure they accurately reflect the amount of subject stream on the site.
o As discussed per phone conversation and email from Eric Kulz (3111109) this comment is
not valid. Figure 4 is in fact accurate per the stream determination conducted by the
Washington Field Office and described in the letter from their office dated 1122109.
GreenVest, LLC ? 726 Second Street, Suite 313, Annapolis, MD 21403 ? 410-268-7422(p) ? 410-268-7423 (o
www.greenvestus.com
Mr. Kulz
Flat Swamp Mitigation Bank
Page 2 of 2
3/16/2009
Mitigation Banking Instrument, Section V. Operation of Bank (Page 4): Section A indicates
that pounds of nitrogen offset generated per acre is 2,273.2 pounds. The correct figure 2,273.02
pounds.
o Correction has now been made to the MBI, Section V. Operation of Bank (Page 4).
This was a typographical error and is not reflected in the actual nutrient offset
calculations presented in the Bank Parcel Development Package, MBI, or Credit
Ledger.
• Credit Accounting Ledger: The credit accounting ledger should reflect the amount of credit
available for sale, rather than the total maximum amount of credit that the site has the potential to
generate.
o The Credit Ledger reflects the amount of credit available for sale. The word "maximum "
was inadvertently left in from the previous comment response (2123109).
Also, you need to include a column that provides a description of the credit transactions,
including a site name and DWQ number (if applicable) and transaction date. Credit releases
should also be recorded to reflect the number of credits and the date of the release.
o The Credit Ledger has been revised to include a column for credit transactions (site
name, DWQ Pro. #, transaction date, and release schedule).
Please note that DWQ should be copied on all correspondence related to credit transactions. An
electronic copy of the letter documenting each transaction/receipt will be adequate.
o Noted. All correspondence related to credit transactions will be copied to DWQ for file
via electronic transmission. This notation will be added to the MBI (Section V (D)).
We look forward to your review of this response letter and moving forward with the establishment of the
Flat Swamp riparian buffer and nutrient offset bank. Please feel free to contact Scott Frederick at (919)
831-1234 if you have any questions regarding this project or our response comments.
" "
Douglas Lashley
President
GreenVest
cc: Scott Frederick, SWE Group
Brett Berkley, GreenVest
Tracey Wheeler - USACE Washington Regulatory Field Office
David Lekson - USACE Washington Regulatory Field Office
GreenVest, LLC ? 726 Second Street, Suite 313, Annapolis, MD 21403 ? 410-268-7422(p)1410-268-74230
www.greenvestus.com
DRAFF
FLAT SWAMP NEUSE RIVER RIPARIAN BUFFER AND NUTRIENT
OFFSET MITIGATION BANKING INSTRUMENT
1. PREAMBLE
This Mitigation Banking Instrument, is for the establishment, use,
operation, and maintenance of the Flat Swamp Neuse Buffer and Nutrient
Offset Mitigation Bank (Bank) and is made and entered into by and among
GreenVest/Flat Swamp, L.L.C. (GV/FS) 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 acre (the
"Property") in Craven County, North Carolina within the Neuse River Basin
upon which the Bank will be established.
The purpose of the Bank is a) to improve water quality through the
restoration of forested riparian buffers 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 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 objective
of this document is to establish Nutrient Offset Credits (NOCs), and Neuse
Buffer Credits (NBCs) 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 Nutrient Offset and Neuse River 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 (Meuse Buffer Rule), 15A NCAC 2B
.0235 (Meuse 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.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Portions of the Property aforementioned hereinafter referred to as the "Bank
Parcel" 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,
Page I 1
IAKAQ
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/FS agrees to perform all necessary work, in accordance with the
provisions of this Banking Instrument, to establish and/or maintain riparian
buffer and nutrient offset buffer until it is demonstrated to the satisfaction of
the DWQ that the Bank Parcel complies with all conditions contained
herein, or until all credits are sold, whichever is later.
C. GV/FS 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/FS 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/FS 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/FS 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.
F. As-Built Reports: GV/FS agrees to submit an as-built report for each Bank
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
Page 12
groundwater elevations, as appropriate.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions: GV/FS agrees to perform all necessary work to
maintain the Parcel(s) consistent with the maintenance criteria established in
this instrument. GV/FS shall continue with such maintenance activities until all
credits are sold or the maintenance and monitoring provisions are completed to
the satisfaction of DWQ. Deviation from the approved BPDP is subject to
review and written approval by DWQ or its designee.
B. Monitoring Provisions: GV/FS 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 in
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 & 11),
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/FS 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 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
Page 13
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/FS shall develop necessary
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/FS is selling or transferring credits not yet
available), the sale/transfer of credits will immediately cease, and the DWQ, in
consultation with GV/FS, will determine what remedial actions are necessary to
correct the situation.
V. OPERATION OF BANK
A. Nutrient (nitrogen (N)) Abatement of Restored Riparian Buffer:
GV/FS 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 zero two (2,273.02 lbs N/acre) as established by
the DWQ and applied to existing riparian buffer-based nutrient
abatement sites across the State of North Carolina.
Riparian Buffer: GV/FS 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/FS, 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 I -Buffer Credit Release Schedule
Task Project Milestone % Credit
Available
for Sale
1 Mitigation Banking Instrument signed, BPDP Approved, 20
Conservation Easement or Restrictive Covenants Recorded
and Performance Bond Purchased
2 Mitigation Site Earthwork, Planting and Installation of 20
Monitoring Devices Completed

4 A r v of As-Built Report M ni rin Bond Purcha5ed
Submit Monitoring Report #1 to DWQ (meets success criteria) 1
10
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
g Submit Monitoring Report #5 to DWQ (meets success criteria) 10
Total 100%
Page 14
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 (Meuse Buffer Rule), 15A
NCAC 2B .0235 (Meuse 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 and any others as deemed appropriate by DWQ.
D. Procedure for Debiting or Crediting the Bank: GV/FS shall maintain 2
credit ledgers: 1) one accounting for Nutrient Offset Credits (in
square feet), which are generated by buffer areas both 0-200 feet in
width; and >51 feet in width, and 2) one for Neuse Buffer Credits,
which are generated by buffering 50 feet from top of bank, NCDWQ
jurisdictional streams subject to Neuse River buffer regulation (15A
NCAC 2B .0233). The ledgers (see the BPDP) shall record the area of
available area for each credit value and all associated debits and
credits. GV/FS reserves the right to amend this MBI post
construction. No debits or credits to the ledger shall be made without
the written concurrence of the DWQ and GV/FS. All written
concurrences shall be kept in the ledger. The accounting and tracking
presented in the ledgers and overseen by DWQ will 1) allow for
accurate tracking of debits and 2) prevent "double-dipping" of the
same. All correspondence related to credit transactions will be
forwarded to DWQ for vile via electronic transmission.
VI. OTHER PROVISIONS
A. GV/FS 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/FS, prior to inspection of Bank.
B. Force Majeure: GV/FS will not be responsible for Bank failure that is
attributed to natural catastrophes such as flood, drought, disease, regional
pest infestation, etc. that are beyond the control of GV/FS. DWQ must
concur in writing that a. force majeure event has occurred. If such an event
occurs before the final sale of all credits, the GV/FS shall take remedial
action to restore the property to its condition prior to this event, in a manner
sufficient to provide adequate mitigation to cover credits that were sold prior
Page 15
to the occurrence of the event. Such remedial action shall be taken by the
GV/FS only to the extent necessary and appropriate, as determined by DWQ
in order to offset authorized impacts to buffers or to satisfy nutrient offset
buy down requirements imposed during land development activities and
satisfied through payment into the Flat Swamp Bank.
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/FS
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/FS: 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:
AA-?
Name: Douglas Lashley
Title: Managing Member
North Carolina Department of Environment and Natural
Resources: Division of Water Quality:
By:
Name:
Title:
Page 17
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DRAFT
THE FLAT SWAMP MITIGATION BANK
Neuse Buffer & Nutrient Offset Buffer Mitigation Plan
Bank Parcel Development Package
Craven County, North Carolina
Prepared f
Greenvest
GreenVest/Flat Swamp, LLC
1001 Capability Drive, Suite 312
Raleigh, NC 27606
QW
Quality Woods
sou,w.ur, K Envimnment
GMP
Soil, Water & Environment Group PLLC
March 2009
'?AAQ
Table of Contents
Objective ........................................................................................................................................ 1
Site Location, HUC, Existing Conditions ................................................................................... I
Proposed Restoration Activities ................................................................................................... 2
Monitoring and Maintenance Plans ............................................................................................ 4
Mitigation Potential ...................................................................................................................... 4
Credit Generation .......................................................................................................................... 5
Service Area .................................................................................................................................... 5
Accounting ..................................................................................................................................... 5
Appendix I - Figures ..................................................................................................................... 6
Appendix II - Photos ......................................................................................................................
Appendix III - Example Conservation Easement ........................................................................
Appendix IV - Project Bonding .....................................................................................................
Appendix V - DWQ Mitigation Banking Instrument & Credit Accounting Ledger .................
Appendix VI - Correspondence ......................................................................................................
Objective
GreenVest Flat Swamp LLC is proposing to establish a Nutrient Offset and Neuse Buffer Mitigation
Bank through the North Carolina Department of Environment and Natural Resources -Division of Water
Quality (DWQ).
The purpose of the Bank is to improve water quality through the restoration of riparian and non-riparian
buffer as proposed in this plan and supporting documentation. Our primary objective is to establish
Nutrient Offset and Neuse Buffer credits, provide mitigation for Neuse Buffer and Neuse Nitrogen offset
payments within the Neuse River Basin, and/or to sell resulting credits to third parties public or private.
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 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 - 14,281.91f of streams including - 19.5 acres of riparian area (100 ft. buffer)
associated with the proposed stream enhancement (Figure 4). 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 (GV/FS).
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 50-60 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 serving 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 Steam Re toration
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 NCDWQ visited the site on 9/30/08 and
1/22/09 and issued a stream determination JD identifying streams exhibiting intermittent
characteristics and thus subject to Neuse River buffer regulation (Appendix VI). 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 order, linear
jurisdictional streams located within interior and along margins of the project site. These modified streams
are now direct unnamed tributaries (UTs) to Flat Swamp Creek and are jurisdictional under the Clean Water
Act (CWA) as indicated in a recent wetland and stream jurisdictional determination by USACE and DWQ
(see Appendix VI). The combined drainage area of these tributaries is approximately 1.8 square mile (1,141
acres) which is more than adequate tributary area to support streams on this site and within this area of the
coastal plain (Appendix I: Figure 3).
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 49.0 feet above mean sea level to approximately 53.5 feet
above mean sea level, with elevations around the manmade ditches ranging between 6-inches and 1.5 feet
lower.
The Flat Swamp watershed has been extensively impacted by clearing, ditching, ongoing agricultural practices
and road building over the past 100 years (Appendix 11: 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 restoration of forested buffers
along jurisdictional streams and watercourses draining to jurisdictional streams. Restoration of the riparian
and non-riparian areas using strategic vegetation planting practices will provide stream bank stability, 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 of 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 (400/6),
red maple (201/o), swamp chestnut oak (15%), willow oak (10%), sweetgum (50/6), green ash (<5%), holly
(<50/6), black willow (<50/6), 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 (150/6), and swamp white oak
(<5%). Additionally, dominant understory species were recorded as well as their abundance within the UT
2
reference site. Understory species in order of abundance are as follows: giant cane, dog hobble (Leucotboe
racemosa), netted chain fern, poison ivy, royal fern (Osmunda rpgalis), spicebush (Lindera bentioin), arrow arum
(Peltandra virginica), cinnamon fern (Osmunda cinnamomea), false nettle (Boebmeria cylindrica), and miscellaneous
sedges. Other species located at the non-riparian hardwood site include horse sugar (Symptoms tinctoria) and
holly (Ilex sp.). GV/FS 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.
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 jurisdictional streams within the project area
(Appendix I: Figure 4). A list of species recommended for each Zone can be found in Table 1. A proposed
vegetation plan is shown on Figure 5 in Appendix I.

?T
Craven County
Planting Zone Area Zone Recommended Plant Species (Character Trees)
Zone A D
(
cres) escription Scientific Name Common Name
Cephalanthus occidentalis Buttonbush
Included in Stream/Ditch Fraxinus pennsylvanica Green ash
1 Zone 2 Bank Cornus amomum Silky dogwood
acreage* Nyssa sylvatica Swamp Blackgum
Salix nigra Black willow
Taxodium distichum Bald cypress

Betula nigra River birch
Celtis occidentalis Hackberry
Riparian Fraxinus pennsylvanica Green ash
2 -19.5 acres Buffer Quercus michauxii Swamp Chestnut Oak
(<51 ft.) Quercus pagoda Cherrybark Oak
Quercus nigra Water oak
Quercus phellos Willow oak
Gordonia lasianthus Loblolly bay
Non-Riparian Persea borbonia Red bay
3 274.19 acres Buffer Quercus michauxii Swamp Chestnut Oak
(0-200 ft. and Quercus pagoda Cherrybark Oak
>51 ft. buffers) Quercus nigra Water oak
Quercus phellos Willow oak
* Area calculated based on a Zone width (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
GV/FS. 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 & II), 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
4
The project design as proposed allows for the buffering of ditches connected with surface waters extending
to 200 feet. Figure 4 illustrates the proposed 51-200 ft. and 0-200 ft. buffers and equates to 274.19 acres
available for nutrient offset mitigation. In addition, the project will restore -19.5 acres of Neuse River buffers
extending to 50 feet from the top of bank along jurisdictional streams. In some cases, only one side of a
jurisdictional stream is available for buffer restoration.
Credit Generation
Nutrient offset credits (NOC) and Neuse Buffer credits (NBC) will be generated through the restoration of
-274.19 acres of riparian buffer equating to approximately 623,239.35 lbs of NOCs using established DWQ
guidelines for determining nutrient removal efficiencies by vegetated buffers at 2,273.02 lbs per acre. In
addition to the nutrient offset credits, 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 MBI and Credit Ledger (Appendix V).
Appendix I - Figures
Figure 1. Project Vicinity Map
1? _ r ?\ ^??\ _ +r- ,: ?r+r/• FMlfamvaY
l ? • l(ea
1
? FsITE LOCATION
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1:50,000 0 0.25 0.5 1
Miles I ., _...___. • ., ?+"+v'•."?•? _. ..-. Ir:
USGS 7.5-Minute Topographic Quadrangle:
Cove City, Dover, Fort Barnwell, & Grafton
Cove
Contour Interval 2 Meters
Prepared For:
PROJECT VICINITY MAP Figure
m FLAT SWAMP MITIGATION BANK
vsACE CRAVEN COUNTY, NORTH CAROLINA
Figure 2. Project Boundaries
Prepared For:
PROJECT BOUNDARIES Figure
m FLAT SWAMP MITIGATION BANK
2
usACE CRAVEN COUNTY, NORTH CAROLINA
Figure 3. Project Drainage Area
Prepared For:
USACE
PROJECT DRAINAGE AREA
FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
Figure
3
Figure 4 (Formerly 11 a). Flat Swamp Restoration/Enhancement Site Plan
NCDWQ FLAT SWAMP MITIGATION BANK 4
CRAVEN COUNTY, NORTH CAROLINA
Prepared For:
Flat Swamp Restoration/Enhancement Site Plan Figure
Figure 5 (Formerly 13). Flat Swamp Riparian and Non-Riparian Buffer Vegetation Cross Section
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Appendix II - Photos
Appendix II - Photos
Unknown
Description:
Current land use at the
Site after previous
conversion of the
original riparian system
for agriculture.
w
?k ,
1
QW PHOTOGRAPHIC LOG
Client Name: Project Name:
NCDWQ Flat Swamp Mitigation Bank
Photo No. Date:
3 Feb 2001
'??
Perspective:
Facing West IL J
Description:
Typical perimeter
drainage ditches on-site.

Photo No. Date:
4 Apr 2008
Perspective:
Facing South

i
i
D
on:
escr
pt

North to south flowing - "
ditch acting as eastern
i
property boundary for
the FSB Site. Entire
4,
length determined to be
jurisdictional and at least
`
intermittent per
NCDW
Q stream
determination/JD dated
9/30/2008.

j.

, .. A
ttz
2
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. Ve etg a 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. Sinag_e. 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.]
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.]
ARTICLE IV.
GRANTEE'S RIGHTS
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. Assi nment. 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
This page intentionally left blank
Appendix V - DWQ Mitigation Banking Instrument & Credit Accounting
Ledger
FLAT SWAMP NEUSE RIVER RIPARIAN BUFFER AND NUTRIENT
OFFSET MITIGATION BANKING INSTRUMENT
1. PREAMBLE
This Mitigation Banking Instrument, is for the establishment, use,
operation, and maintenance of the Flat Swamp Neuse Buffer and Nutrient
Offset Mitigation Bank (Bank) and is made and entered into by and among
GreenVest/Flat Swamp, L.L.C. (GV/FS) 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 acre (the
"Property") in Craven County, North Carolina within the Neuse River Basin
upon which the Bank will be established.
The purpose of the Bank is a) to improve water quality through the
restoration of forested riparian buffers 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 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 objective
of this document is to establish Nutrient Offset Credits (NOCs), and Neuse
Buffer Credits (NBCs) 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 Nutrient Offset and Neuse River 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 (Meuse Buffer Rule), 15A NCAC 2B
.0235 (Meuse 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.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Portions of the Property aforementioned hereinafter referred to as the "Bank
Parcel" 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,
Page I I
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/FS agrees to perform all necessary work, in accordance with the
provisions of this Banking Instrument, to establish and/or maintain riparian
buffer and nutrient offset buffer until it is demonstrated to the satisfaction of
the DWQ that the Bank Parcel complies with all conditions contained
herein, or until all credits are sold, whichever is later.
C. GV/FS 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/FS 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/FS 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/FS 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.
F. As-Built Reports: GV/FS agrees to submit an as-built report for each Bank
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
Page 12
groundwater elevations, as appropriate.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions: GV/FS agrees to perform all necessary work to
maintain the Parcel(s) consistent with the maintenance criteria established in
this instrument. GV/FS shall continue with such maintenance activities until all
credits are sold or the maintenance and monitoring provisions are completed to
the satisfaction of DWQ. Deviation from the approved BPDP is subject to
review and written approval by DWQ or its designee.
B. Monitoring Provisions: GV/FS 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 in
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/FS 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 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
Page 13
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/FS shall develop necessary
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/FS is selling or transferring credits not yet
available), the sale/transfer of credits will immediately cease, and the DWQ, in
consultation with GV/FS, will determine what remedial actions are necessary to
correct the situation.
V. OPERATION OF BANK
A. Nutrient (nitrogen (N)) Abatement of Restored Riparian Buffer:
GV/FS 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 zero two (2,273.02 lbs N/acre) as established by
the DWQ and applied to existing riparian buffer-based nutrient
abatement sites across the State of North Carolina.
Riparian Buffer: GV/FS 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/FS, 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 I -Buffer Credit Release Schedule
Task Project Milestone % Credit
Available
for Sale
1 Mitigation Banking Instrument signed, BPDP Approved,
Conservation Easement or Restrictive Covenants Recorded
and Performance Bond Purchased 20
2 Mitigation Site Earthwork, Planting and Installation of
Monitoring Devices Completed 20
A r v al of As-Built Report n ni rin B n Purchased 1
4 Submit Monitoring Report #1 to DWQ (meets success criteria) 10
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) 10
Total 100%
Page 14
C. Projects Eligible to Use the Bank. Projects eligible for utilization of
the credits are those requiring authorization under the requirements of
15A NCAC 213 .0234 (Wastewater Discharge Requirements), 213
.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 (Meuse Buffer Rule), 15A
NCAC 2B .0235 (Meuse Nutrient Sensitive Water Management Plan)
213 .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 and any others as deemed appropriate by DWQ.
D. Procedure for Debiting or Crediting the Bank: GV/FS shall maintain 2
credit ledgers: 1) one accounting for Nutrient Offset Credits (in
square feet), which are generated by buffer areas both 0-200 feet in
width; and >51 feet in width, and 2) one for Neuse Buffer Credits,
which are generated by buffering 50 feet from top of bank, NCDWQ
jurisdictional streams subject to Neuse River buffer regulation (15A
NCAC 2B .0233). The ledgers (see the BPDP) shall record the area of
available area for each credit value and all associated debits and
credits. GV/FS reserves the right to amend this MBI post
construction. No debits or credits to the ledger shall be made without
the written concurrence of the DWQ and GV/FS. All written
concurrences shall be kept in the ledger. The accounting and tracking
presented in the ledgers and overseen by DWQ will 1) allow for
accurate tracking of debits and 2) prevent "double-dipping" of the
same. All correspondence related to credit transactions will be
forwarded to DWQ for vile via electronic transmission.
VI. OTHER PROVISIONS
A. GV/FS 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/FS, prior to inspection of Bank.
B. Force Majeure: GV/FS will not be responsible for Bank failure that is
attributed to natural catastrophes such as flood, drought, disease, regional
pest infestation, etc. that are beyond the control of GV/FS. DWQ must
concur in writing that a. force majeure event has occurred. If such an event
occurs before the final sale of all credits, the GV/FS shall take remedial
action to restore the property to its condition prior to this event, in a manner
sufficient to provide adequate mitigation to cover credits that were sold prior
Page 15
to the occurrence of the event. Such remedial action shall be taken by the
GV/FS only to the extent necessary and appropriate, as determined by DWQ
in order to offset authorized impacts to buffers or to satisfy nutrient offset
buy down requirements imposed during land development activities and
satisfied through payment into the Flat Swamp Bank.
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/FS
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/FS: 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:
A?k?
Name: Douglas Lashley
Title: Managing Member
North Carolina Department of Environment and Natural
Resources: Division of Water Quality:
By:
Name:
Title:
Page 17
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Appendix VI - Correspondence

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Beverly Eaves Perdue. Governor
Dee Freeman, Secretary
North Carolina Department of Environment and Natural Resources
Coteen H. Sutlans, Director
January- 22, 2009
Scott J. Frederick, El, NC=LSS
Soil, Water & Environment Group
Research Building I. Centennial Campus
1001 Capability Drive, Suite 312
Raleigh, NC 27606
Subject Property: Flat Swamp) Mitigation Bank
UTs to Flat Swamp, Neuse River Basin
Chuck Waksid, P E , Deputy Director
DWQ Project # 2007-0747
Craven Countv
Page I of 2
On-Site Determination for Applicability to the Neuse River Riparian Area Protection Rules
(15A NCAC 2B.0233)
Dear TvIr. Frederick:
On January 22, 2009, at your request I conducted an on-site detennination to review features
located on the subject property for applicability to the i'v'euse Buffer Rules (I 5A NCAC 2B
.0233), The feature is labeled as "2007--0737°on the attached map initialed by me on January,
22, 2009.
The Division of Water Quality (DW'Q) has determined that the portion of the surface water
circled. highlighted in blue, and labeled as "2047-07=17" on the attached map are at least
intermittent and therefore Subject to the Meuse Buffer Rules. The portions of the feature
highlighted in pint: on the attached map are Not Subject to the Neuse Buffer Rule. This
determination supercedes the determination letter of September 30, 2008. This feature and its
associated buffers should be identified on any future plans for this property. 'Hie owner (or
future owrners) should notify the DWQ (and other relevant agencies) of this decision in any
future correspondences concerning this property. 't'his on-site determination shall expire five (5)
years from the date of this letter.
Landowners or affected parties that dispute a determination made by the DW'Q or Delegated
Local Authority that a surface water exists and that it is subject to the buffer rule may request a
determination by the Director. A request for a determination by the Director shall be referred to
the Director in writing c/o Cyndi Karoly. DNVQ, 401 Oversight. Express Review Permitting Unit,
2321 Crabtree Blvd., Suite 250, Raleigh, NC 27604-2260. Individuals that dispute a
determination by the DWQ or Delegated Local Authority that '`excnzpts" a surface water from
the buffer rule may ask for an adjudicatory hearing. You must act within 60 days of the date that
you receive this letter. Applicants are hereby notified that the 60-day statutory appeal time does
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not start until the affected party (including downstream and adjacent landowners) is notified of
this decision. L)WQ recommends that the applicant conduct this notification in order to be
certain that third party appeals are made in a timely manner, To ask for a hearing, send a written
petition, which conforms to Chapter 150B of the North Carolina General Statutes to the Office of
Administrative Bearings, 6714 Mail Service Center. Raleigh, N,(-'% 27699-6714. This
determination is final and binding unless you ask for a hearing within 60 days.
This letter only addresses the applicability to the buffer rules and does not approve any activity
within the buffers. Nor does this letter approve any activity within Waters of the United :Mates
or Waters of the :Mate. If you have any additional questions or require additional information
please call Chris Pullinger at [phone].
Sincerely,

Chris Pullinger
Environmental Specialist
Enclosures: copy of Fort Barn ell quadrangle. 1:24,000 scale t iSGS topographic map
cc; DWQ 401 Oyersightt'Espress Unit
U .S. Army Corps of Engineers, Washington Field Office - Tracie Wheeler
WaRO F=ile Copy
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