20070747 Ver 1_Mitigation Plans_20090529

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MAY 2 9 2009
DENR - MTER QUAUIY
WETLANDS AND STORMWATER BRANCH
THE FLAT SWAMP MITIGATION BANK
Neuse Buffer & Nutrient Offset Buffet Mitigation Plan
Bank Parcel Development Package
Craven County, North Carolina
L rep B
G - -
GreenVest/Flat Swamp, LLC
1001 Capability Drive, Suite 312
Raleigh, NC 27606
QW
Quality Woods
R
sadl Ckal & Fnvirunmrnt
G-V
Soil, Water & Environment Group PLLC
May 2009
Table of Contents
Site Location, HUC, Existing Conditions ................................................................................... I
Proposed Restoration Activities ................................................................................................... 2
Monitoring and Maintenance Plans ............................................................................................ 4
Mitigation Potential ...................................................................................................................... 4
Credit Generation .......................................................................................................................... 5
Service Area ..............................................................
Accounting ...............................................................
Appendix I - Figures ...............................................
Appendix II - Photos ..............................................
Appendix III - Example Conservation Easement
Appendix IV - Project Bonding .............................
Appendix V - DWQ Credit Accounting Ledger ....
A- endix VI - Corres ondence
....................................................... 5
.............. 6
Y Jr .....................................................
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 L• Figure 1).
The FSB is located entirely on two adjoining parcels in Craven County, NC (Appendix L• 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 (50 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 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 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 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 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 (40%),
red maple (20%), swamp chestnut oak (150/o), willow oak (10%), sweetgum (5%), green ash (<5%), holly
(<5%), black willow (<5%), and bays (<5%). Other species present at the non-riparian hardwood wetland
reference site include water oak (20%), cherry bark oak (15%) yellow poplar (15%), and swamp white oak
(<5%). 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 (Leucotboe
racemosa), netted chain fern, poison ivv, royal fern (Osmunda regafs), 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 (Symplocos tinctoria) and
2
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
(Meuse River (Riparian) Buffer), and Zone 3 (Nutrient Offset (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 L• 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.
Table 1. Designed Vegetative Communities by Zone for the Flat Swamp Mitigot-sm Batik
Craven County
Planting Zone Area Zone
trodec#ll??tt ` ??Cl?iae?ht±ter Try

Zone (Acres) bascriptien;.
T
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
Neuse River Celtis occidentalis Hackberry
Buffer Fraxinus pennsylvanica Green ash
2 -19.5 acres (Riparian) Quercus michauxii Swamp Chestnut Oak
(<51 ft) Quercus pagoda Cherrybark Oak
Quercus nigra Water oak
Quercus phellos Willow oak
Nutrient Offset Gordonia lasianthus Loblolly bay
Buffer (Non- Persea borbonia Red bay
3 274.19 acres Riparian) 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
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
4
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
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SITE LOCATION \\
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1:50.000 0 0.25 0.5
USGS 7.5 Minute Topographic Quadrangle'.
Cove City Dover Fort Barnwell, 8 Grifton
Contour Interval 2 Meters '? - / ?•
Prepared For:
PROJECT VICINITY MAP Figure
Em FLAT SWAMP MITIGATION BANK
1
USACE CRAVEN COUNTY, NORTH CAROLINA
Figure 2. Project Boundaries
Prepared For:
USACE
PROJECT BOUNDARIES
FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
Figure
2
Figure 3. Project Drainage area
LEGEND
Existing Streams
Project Boundary
Drainage Area (1,141 Ac)

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t.
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0 375 750 1,500
1,16,000 Feet
USGS 7.5- Digital Orthographic Quadrangle:
Cove City NE & NW, Dover NE,
Fort Barnwell SE & SW, & Grifton SE
Prepared For:
LM
USACE

PROJECT DRAINAGE AREA
FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
Figure
3
Figure 4. 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. Flat Swamp Riparian and Non-Riparian Buffer Vegetation Cross Section
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Appendix 11 - Photos
Description:
Current land use at the
Site after previous
conversion of the
original riparian system
for agriculture.
Photo No. Date:
2 Apr 2008
Perspective:
Facing West 3
Description:

1
Photo No. Date:
4 Apr 2008
Perspective:
Facing South
7- A"
Description:.
North to south flowing
ditch acting as eastern f
property boundary for
the FSB Site. Entire xt `
length determined to be jurisdictional and at least y ry ?"
intermittent per
NCDWQ stream '
determination/JD dated
„n
9/30/2008.

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. 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. Silage. 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 propeggNotwithstanding 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
ARTICLE IV.
GRANTEE'S RIGHTS
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 Corns:
[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 - DWQ Credit Accounting Ledger
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Appendix VI - Correspondence
a'?fl? wAr?RQ,?
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Y
Beverly Eaves Perdue, Governor
Dee Freeman; Secretary
North Carolina Department of Environment and Natural Resources
Coieen H. Sull,ns, Director
January 22, 2009
Scott J. Frederick, El, ICLSS
Soil, Water & Environment Group
Research Building 1. Centennial Campus
1001 Capability Drive. Suite 312
Raleigh, NC 27606
Subject Property: Flat Swamp Mitigation Bank
UTs to Flat Swamp, Neuse River Basin
Chuck Wakild, P. E., Deputy Director
DWQ Project # 2007-0747
Craven County
Page I of ?
On-Site Determination for Applicability to the Neuse River Riparian Area Protection Rules
(15A NCAC 2B.0233)
Isar Mr. Frederick:
On January 22, 2009, at your request 1 conducted an on-site determination to review features
located on the subject property for applicability to the Neuse Butler Rules (15A tiCAC 2B
.0233). The feature is labeled as-2007-0747 on the attached map initialed by me on January
22.2009.
The Division of Water Quality (DWQ) has determined that the portion of the surface water
circled, highlighted in blue, and labeled as "2007-0747" on the attached map are at least
intermittent and therefore Subieet to the Neuse Buffer Rules. The portions of the feature
highlighted in pink 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. The owner (or
future owners) should notify the DWQ (and other relevant agencies) of this decision in any
future correspondences concerning this property. This on-site determination shall expire five
years from the date of this letter.
Landowners or affected parties that dispute a determination made by the DWQ or Delegated
Local Authority that a surface water exists and that it is subject to the butler 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, DWQ, 401 OversightTxpress Review Permitting t nit.
2321 Crabtree Blvd., Suite 250, Raleigh, NC 27604-2260. Individuals that dispute a
determination by the DWQ or Delegated Local Authority that "exempts" 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 dices
\t)nh Carolina Division of w atcr (.` utility Imtemet h2o enr state nc us
943 Wa ington Square Mail Ptkine: 251-946-6481 aWashington,'NC 27M FAX [phone]
An Eck oppoetuniWAf rnative Acton Empbyer - 50% Reoyded;10% Post coma ner Paper
Applicant
Page 2 of 2
Date
not start until the affected party (including downstream and adjacent landowners) is notified of
this decision. DWQ 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 Hearings. 6714 Mail Service Center, Raleigh. N.C. 27699-6714. This
determination is final and binding unless you ask for a hearing within 6th 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 States
or Waters of the State. If you have any additional questions or require additional information
please call Chris Pullinger at [phone].
Sincerely,
R
Chris Pullinger
Environmental Specialist
Enclosures: copy of Fort Barnwell quadrangle, 1:24,000 scale UISGS topographic map
cc. DWQ 401 Oversight/Express Unit
U.S. Army Carps of Engineers, Washington Field Office - Tracie Wheeler
WaRO File Cape
Hename. 2007-0-4-
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