20160849 Ver 1_UMBI Draft_20191017

ID#* 20160849
Select Reviewer:*
Mac Haupt
Initial Review Completed Date 10/17/2019
Mitigation Project Submittal-10/17/2019
Version* 1
Is this a Prospectus, Technical Proposal or a New Site?*
Type of Mitigation Project:*
V Stream V Wetlands r Buffer r Nutrient Offset
(Select all that apply)
Project Contact Information
Contact Name:*
Cara Conder
Project Information
..................................................................................................................................................................
ID#:* 20160849
Existing IDY
Project Type: r DMS r Mitigation Bank
Project Name: Upper Rocky Mitigation Site
County: Mecklenburg
Document Information
r Yes r No
Email Address:*
[e-mail]
Version:*1
Existing Version
Mitigation Document Type:*
Mitigation Bank Instrument
File Upload: Upper Rocky UMBI Draft.pdf 149.02KB
Rease upload only one RDF of the conplete file that needs to be subrritted...
Signature
Print Name:* Cara Conder
Signature:*

1
AGREEMENT TO ESTABLISH THE UPPER ROCKY
UMBRELLA MITIGATION BANKING INSTRUMENT
WITHIN THE STATE OF NORTH CAROLINA

USACE approval of this Instrument constitutes the regulatory approval required for
the UPPER ROCKY UMBRELLA MITIGATION BANK to be used to provide
compensatory mitigation for Department of the Army permits pursuant to 33 C.P.R.
332.8(a)(1). This Instrument is not a contract between the Sponsor or Property Owner
and USACE or any other agency of the federal government. Any dispute arising under
this Instrument will not give rise to any claim by the Sponsor or Property Owner for
monetary damages. This provision is controlling notwithstanding any other provision or
statement in the Instrument to the contrary.

This Umbrella Mitigation Banking Instrument (UMBI) is made and entered into on
the day of _________, 2019, by Water & Land Solutions, LLC, hereinafter Sponsor,
and the U.S. Army Corps of Engineers (Corps), and each of the following agencies, upon
its execution of this UMBI; the Environmental Protection Agency (EPA), the U.S. Fish
and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), the North
Carolina Wildlife Resources Commission (NCWRC), the State Historic Preservation
Office (SHPO) and the North Carolina Division of Water Resources (NCDWR). The
Corps, together with the State and Federal agencies that execute this UMBI, are
hereinafter collectively referred to as the Interagency Review Team (IRT).

WHEREAS the purpose of this instrument is to establish an umbrella mitigation bank
(Bank) providing compensatory mitigation for unavoidable wetland and/or stream
impacts separately authorized by Section 404 Clean Water Act permits and /or Section 10
of the Rivers and Harbors Act permits in appropriate circumstances;

WHEREAS the agencies comprising the IRT agree that the Bank site(s) are suitable
mitigation bank site(s), and that implementation of the Mitigation Plan(s) are likely to
result in net gains in wetland and/or stream functions at the Bank sites, and have therefore
approved the Mitigation Plan(s);

THEREFORE, it is mutually agreed among the parties to this agreement that the
following provisions are adopted and will be implemented upon signature of this UMBI.

Section I: General Provisions

A. The Sponsor is responsible for assuring the success of the restoration,
enhancement, and preservation activities at the Bank site(s), and for the overall operation
and management of the Bank. The Sponsor assumes the legal responsibility for providing
the compensatory mitigation once a permittee secures credits from the Sponsor and the
District Engineer (DE) receives documentation that confirms the Sponsor has accepted
responsibility for providing the required compensatory mitigation.

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B. The goals of the Upper Rocky Umbrella Bank site(s) are to restore, enhance, and
preserve wetland and/or stream systems and their functions to compensate in appropriate
circumstances for unavoidable wetland and stream impacts authorized by Section 404 of
the Clean Water Act permits and/or Section 10 of the Rivers and Harbors Act permits in
circumstances deemed appropriate by the Corps and/or NCDWR after consultation,
through the permit review process, with members of the IRT.

C. Use of credits from the Bank to offset wetland and/or stream impacts authorized
by Clean Water Act permits must be in compliance with the Clean Water Act and
implementing regulations, including but not limited to the 404(b)(1) Guidelines, the
National Environmental Policy Act, and all other applicable Federal and State legislation,
rules and regulations. This agreement has been drafted in accordance with the regulations
for Compensatory Mitigation for Losses of Aquatic Resources effective June 9, 2008 (33
CFR Parts 325 and 332) (Mitigation Rule).

D. The IRT shall be chaired by the DE of the U.S. Army Corps of Engineers,
Wilmington District (District). The IRT shall review documentation for the establishment
of mitigation bank sites. The IRT will also advise the DE in assessing monitoring reports,
recommending remedial measures, approving credit releases, and approving
modifications to this instrument. The IRT’s role and responsibilities are more fully set
forth in Sections 332.8 of the Mitigation Rule. The IRT will work to reach consensus on
its actions.

E. The DE, after consultation with the appropriate Federal and State review agencies
through the permit review process, shall make final decisions concerning the amount and
type of compensatory mitigation to be required for unavoidable, permitted wetland and/or
stream impacts, and whether or not the use of credits from the Bank is appropriate to
offset those impacts. In the case of permit applications and compensatory mitigation
required solely under the Section 401 Water Quality Certification rules of North
Carolina, the NCDWR will determine the amount of credits that can be withdrawn from
the Bank. Any credits used to offset impacts solely authorized by Section 401 cannot be
used for other impacts authorized under Section 404 of the Clean Water Act or Section
10 of the Rivers and Harbors Act.

F. The parties to this agreement understand that a watershed approach to establish
compensatory mitigation must be used to the extent appropriate and practicable. Where
practicable, in-kind compensatory mitigation is preferred.

Section II: Geographic Service Area

The Geographic Service Area (GSA) is the designated area within which the Umbrella
Bank sites are authorized to provide compensatory mitigation required by DA permits.
The GSA for each Bank site is Hydrologic Unit Code (HUC) 03040105 within the
Yadkin River Basin in North Carolina. Credits must be used in the same 8-digit HUC in
which they were generated. Credits within each 8-digit HUC should be tracked on
separate ledgers.
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Section III: Mitigation Plan

Any Mitigation Plan submitted pursuant to this agreement must contain the
information listed in 332.4(c) (2) through (14) of the Compensatory Mitigation Rule.

A. The Sponsor will perform work as described in each site-specific Mitigation Plan.

B. The Sponsor shall monitor the Bank sites as described in each site-specific
approved Mitigation Plan, until such time as the IRT, determines that the performance
standards described in the site-specific Mitigation Plans have been met.

C. Mitigation Plans submitted for inclusion in this Bank must meet the requirements
of any District guidance that is current at the time the Draft Mitigation Plan is submitted
to the District, including any updates made to monitoring requirements, credit releases,
long term management, or any other provisions that are required and/or specifically
addressed in the Mitigation Plans. The addition of new Bank sites shall be considered as a
modification to this instrument, and processed in accordance with the procedures set forth
in the Mitigation Rule.

D. The members of the IRT will be allowed reasonable access to the Properties for
the purposes of inspection of the Properties and compliance monitoring of the Mitigation
Plans.

Section IV: Reporting

A. The Sponsor shall submit to the DE, for distribution to each member of the IRT,
annual reports describing the current conditions of the Bank sites and the condition of the
Bank sites in relation to the performance standards in each site-specific Mitigation Plan.
The Sponsor shall provide to the DE all monitoring reports described in the Mitigation
Plans.

B. As part of each annual monitoring report, the Sponsor shall also provide ledger
reports documenting credit transactions as described in Section VIII of this UMBI.

C. Each time an approved credit transaction occurs, the Sponsor shall provide
notification to the DE within 30 days of the transaction. This notification shall consist of
a summary of the transaction and a full ledger report reflecting the changes from the
transaction. Additionally, signed copies of the Compensatory Mitigation Transfer of
Responsibility Form shall be submitted to the Corps Bank Manager for the bank site.

Section V: Remedial Action

A. The DE shall review the monitoring reports, as required in the site-specific
Mitigation Plans, and may, at any time, after consultation with the Sponsor and the IRT,
direct the Sponsor to take remedial action at the Bank sites. Remedial actions required by
the DE shall be designed to achieve the performance standards as specified in the site-
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specific Mitigation Plans. All remedial actions required under this section shall include a
work schedule and monitoring criteria that will take into account physical and climactic
conditions.

B. The Sponsor shall implement all remedial measures required pursuant to the
above.

C. In the event the Sponsor determines that remedial actions may be necessary to
achieve the required performance standards, it shall provide notice of such proposed
remedial action to all members of the IRT. No remedial actions shall be taken without the
concurrence of the DE, in consultation with the IRT.

Section VI: Use of Mitigation Credits

A. Description of credit classifications and provisions pertaining to the use of those
credits shall be provided in each site-specific Mitigation Plan to be included in this bank.
Credit classifications (e.g., cold water stream, cool water stream, warm water stream,
coastal wetlands, non-riparian wetlands, riparian non-riverine wetlands, and riparian
riverine wetlands) will be in accordance with current District guidance at the time the
Mitigation Plan is submitted to the District. In general, these classifications will be used
to determine if a particular credit qualifies as “In-Kind” mitigation. Exceptions to the use
of “In-Kind” mitigation may be allowed at the discretion of the permitting agencies on a
case-by-case basis.

B. Wetland and stream compensation ratios are determined by the DE on a case-by-
case basis after consideration of the functions of the wetlands and/or streams impacted,
the severity of the wetland and/or stream impacts, the relative age of the mitigation site,
whether the compensatory mitigation is in-kind, and the physical proximity of the
wetland and/or stream impacts to the Bank Site.

C. Notwithstanding the above, all decisions concerning the appropriateness of using
credits from the Bank sites to offset impacts to waters and wetlands, as well as all
decisions concerning the amount and type of such credits to be used to offset wetland and
stream impacts authorized by Department of the Army permits, shall be made by the DE,
pursuant to Section 404 of the Clean Water Act and implementing regulations and
guidance. These decisions may include notice to and consultation with the members of
the IRT through the permit review process if the DE determines this to be appropriate
given the scope and nature of the impact.

Section VII: Credit Release Schedule

A. All credit releases must be approved in writing by the DE, following consultation
with the IRT, based on a determination that required performance standards have been
achieved.
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B. A credit release schedule shall be provided in each site-specific Mitigation Plan
that are included in this Bank. The release schedule will list all of the proposed credit
releases and any performance standards associated with those releases.

C. In general, the initial allocation of credits from any site included as part of this
Bank shall be available for sale only after the completion of all of the following:

1. Execution of this UMBI by the Sponsor, the DE, and other agencies eligible
for membership in the IRT who choose to execute this agreement, to include the
approval of any modifications to this agreement when new sites are added to it;
2. Approval of a final Mitigation Plan;
3. Confirmation that the Bank site has been secured;
4. Delivery of executed financial assurances as specified in the site-specific
Mitigation Plan;
5. Delivery of a copy of the recorded long-term protection mechanism as
described in the site-specific Mitigation Plan, as well as a title opinion covering
the property acceptable to the DE; and
6. Issuance of any DA permits necessary for construction of the Bank site (if
necessary).

The Sponsor must initiate implementation of each site-specific approved Mitigation
Plan no later than the first full growing season after the date of the first credit transaction
(i.e., construction of the initial physical and biological improvements proposed in the
site-specific Mitigation Plan must be started by the end of the first full growing season
following the initial sale of any credits). This provision does not apply to preservation-
only sites that do not include any physical or biological improvements. Subject to the
Sponsor’s continued satisfactory completion of all required performance standards and
monitoring, additional mitigation credits will be available for sale by the Sponsor as
specified in each Mitigation Plan.

Section VIII: Accounting Procedures

A. The Sponsor shall develop accounting procedures acceptable to the DE for
maintaining accurate records of debits made from the Bank. Such procedures shall
include the generation of a ledger by the Sponsor showing credits used at the time they
are debited from the Bank. All ledger reports shall identify credits debited and remaining
by type of credit and shall include for each reported debit the Corps ORM ID number for
the permit for which the credits were utilized and the permitted impacts for each resource
type.

B. When credits from the bank are sought by a permit applicant, the Sponsor shall
prepare a reservation letter for the applicant to include with the Corps permit application,
that documents the number and type of credits available to be debited from the bank, and
the amount of time (if any) that those credits will be held for that applicant (with an
expiration date for the letter of availability).

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C. Each time an approved credit transaction occurs, the Sponsor shall notify the DE
within 30 days of the transaction with a summary of the transaction and a full ledger
report showing the changes made. Signed copies of the Transfer of Mitigation
Responsibility form shall also be submitted to the Corps permit Project Manager and the
Corps Bank Manager for that bank.

D. The Sponsor shall prepare annual ledger reports for each bank site showing all
credits used, any changes in credit availability (e.g., additional credits released, credit
sales, suspended credits, etc.), and the beginning and ending balance of remaining credits.
The Sponsor shall submit the annual reports to the DE, for distribution to each member of
the IRT, until such time as all of the credits have been utilized, or this agreement is
otherwise terminated.

Section IX: Financial Assurances

A. Financial assurances for each Bank site will be detailed in the site-specific
Mitigation Plans. The Sponsor shall provide financial assurances in a form acceptable to
the DE, sufficient to assure completion of all mitigation work, required reporting and
monitoring, and any remedial work required pursuant to this UMBI. The financial
assurance value should be based on the cost of doing any remaining mitigation work,
including costs for land acquisition, planning and engineering, legal fees, mobilization,
construction, and monitoring. For preservation only Bank Sites, no financial assurances
will generally be required unless there are specific activities necessary to ensure the
successful preservation of resources on the site, in which case appropriate financial
assurances may still be required.

B. All financial assurances shall be made payable to a standby trust or to a third-
party designee, acceptable to the Corps, who agrees to complete the project or provide
alternative mitigation. Financial assurances structured to provide funds to the Corps in
the event of default by the Bank Sponsor are not acceptable.

C. The form and amount of financial assurances must be stated in each site-specific
Mitigation Plan in order for the Mitigation Plan to be approved. This must include the
name of the specific provider of those assurances and the method by which the financial
assurances will be provided in the event that they must be utilized. Original copies of the
financial assurance documents must be provided to the DE prior to the initial release of
credits.

D. A financial assurance must be in the form that ensures that the DE receives
notification at least 120 days in advance of any termination or revocation.

Section X: Site Protection

A. The Sponsor shall grant a Conservation Easement (CE) in a form acceptable to
the DE, sufficient to protect Bank sites in perpetuity. The CE shall be perpetual, preserve
all natural areas, and prohibit all uses of the properties inconsistent with their use as
mitigation property, including any activity that would materially alter the biological
7
integrity or functional and educational value of wetlands or streams within the Bank sites,
consistent with the Mitigation Plans. The purpose of the CE will be to assure that future
use of the Bank sites will result in the restoration, protection, maintenance and
enhancement of wetland and/or stream functions as described in the site-specific
Mitigation Plans. The name and contact information for the Corps approved easement
holder and a copy of the CE template will be provided in each site-specific Mitigation
Plan.

B. The Sponsor shall deliver a title opinion acceptable to the DE covering the
mitigation property. The property shall be free and clear of any encumbrances that would
conflict with its use as mitigation, including, but not limited to, any liens that have
priority over the recorded CE.

C. Subsequent to the recording of the CE, the Sponsor may convey the Bank site
property either in fee or by granting an easement to a qualified land trust, state agency, or
other appropriate nonprofit organization approved by the Corps. The Sponsor is
responsible for ensuring that the CE is re-recorded so that it remains within the chain of
title. The terms and conditions of this conveyance shall not conflict with the intent and
provisions of the CE nor shall such conveyance enlarge or modify the uses specified in
the easement. The CE must contain a provision requiring 60 day advance notification to
the DE before any action is taken to void or modify the CE, including transfer of title to,
or establishment of any other legal claims over the project site.

Section XI: Long-term Management

A. The Sponsor shall implement the long-term management plan as described in
each site-specific Mitigation Plans. Each plan must provide the name and contact
information for the party responsible for long-term management.

B. The long-term management plan will include a list of annual maintenance,
monitoring, and/or repair activities for each mitigation site, the associated annual cost for
each activity, and the required total amount necessary to provide all future site
management. The long-term management plan should explain how the funds will be
managed and provided to the designated long-term manager (e.g., an endowment
managed through a separate account holder). The long-term management plan should
include a contingency section that addresses how the responsibility and funding for long-
term site management will be passed on to a new manager in the event that the selected
long-term management entity is no longer able to provide for management of the site.

Section XII: Default and Closure

A. It is agreed to establish and/or maintain the Bank sites until (i) credits have been
exhausted or banking activity is voluntarily terminated with written notice by the Sponsor
provided to the DE and other members of the IRT; and (ii) it has been determined and
agreed upon by the DE and IRT that the debited Bank site has satisfied all the conditions
herein and in the site-specific Mitigation Plan. If prior to project close-out the DE
determines that a Bank site is not meeting performance standards or complying with the
8
terms of the instrument, appropriate action will be taken. Such actions may include, but
are not limited to, suspending credit sales, adaptive management, decreasing available
credits, utilizing financial assurances, and terminating the instrument.

B. Any delay or failure of Bank Sponsor shall not constitute a default hereunder if
and to the extent that such delay or failure is primarily caused by any act, event or
conditions beyond the Sponsor’s reasonable control and significantly adversely affects its
ability to perform its obligations hereunder including: (i) acts of God, lightning,
earthquake, fire, landslide, or interference by third parties; (ii) condemnation or other
taking by any governmental body; (iii) change in applicable law, regulation, rule,
ordinance or permit condition, or the interpretation or enforcement thereof; (iv) any
order, judgment, action or determination of any federal, state or local court,
administrative agency or government body; or (v) the suspension or interruption of any
permit, license, consent, authorization or approval. If the performance of the Bank
Sponsor is affected by any such event, Bank Sponsor shall give written notice thereof to
the IRT as soon as is reasonably practicable. If such event occurs before the final
availability of all credits for sale, the Sponsor shall take remedial action to restore the
property to its condition prior to such event, in a manner sufficient to provide adequate
mitigation to cover credits that were sold prior to such delay or failure to compensate for
impacts to waters, including wetlands, authorized by Department of the Army permits.
Such remedial action shall be taken by the Sponsor only to the extent necessary and
appropriate, as determined by the IRT.

C. At the end of the monitoring period, upon satisfaction of the performance standards,
the Sponsor may submit a request to the DE for site close out. The DE, in consultation
with the IRT, shall use best efforts to review and comment on the request within 60 days
of such submittal. If the DE determines the Sponsor has achieved the performance
standards in accordance with the mitigation plan and all obligations under this MBI, the
DE shall issue a close out letter to the Sponsor.

Section XIII: Miscellaneous

A. Modification of this UMBI shall be in accordance with the procedures set forth in
332.8 of the mitigation rule.

B. No third party shall be deemed a beneficiary hereof and no one except the signatories
hereof, their successors and assigns, shall be entitled to seek enforcement hereof.

C. This UMBI constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior agreements or undertakings.

D. In the event any one or more of the provisions contained in this UMBI are held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect any other provisions hereof, and this UMBI shall be
construed as if such invalid, illegal or unenforceable provision had not been contained
herein.
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E. This UMBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.

F. This UMBI may be executed by the parties in any combination, in one or more
counterparts, all of which together shall constitute but one and the same instrument.

G. The terms and conditions of this UMBI shall be binding upon, and inure to the benefit
of the parties hereto and their respective successors.

H. All notices and required reports shall be sent by regular mail to each of the parties at
their respective addresses, provided below.

Sponsor:
Water & Land Solutions, LLC
Mr. Adam McIntyre, Chief Executive Officer
7721 Six Forks Road, Suite 130
Raleigh, NC 27615

Corps:
Mr. Steve Kichefski
U.S Army Corps of Engineers
Asheville Regulatory Field Office
151 Patton Ave, Room 208
Asheville, NC 28801-5006

USEPA:
Mr. Todd Bowers
Wetlands Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303

USFWS:
Mr. Byron Hamstead
U.S. Fish and Wildlife Service
160 Zillicoa Street, Suite B
Asheville, NC 28801

NCWRC:
Mr. Travis Wilson
North Carolina Wildlife Resources Commission
Rogers Lake Depot
1718 NC Hwy 56 W
Creedmoor, NC 27522
10

NCDWR:
Mr. Mac Haupt
Division of Water Resources
North Carolina Department of Environmental Quality
Post Office Box 29535
Raleigh, NC 27626-0535

NCSHPO:
Ms. Renee Gledhill-Earley
State Historic Preservation Office
4617 Mail Service Center
109 E. Jones Street
Raleigh, North Carolina 27699

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

Sponsor: Water & Land Solutions, LLC
11

By: _________________________ Date: __________________

U.S. Army Corps of Engineers:

By: _________________________ Date: ___________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

12

U.S. Environmental Protection Agency:

By: _________________________ Date: ________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

13
U.S. Fish and Wildlife Service:

By: _________________________ Date: ________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

N.C. Division of Water Resources:
14

By: _________________________ Date: ________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

N.C. Wildlife Resources Commission:
15

By: _________________________ Date: ________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the Upper Rocky Umbrella Mitigation Bank within the State
North Carolina:

NC State Historic Preservation Office:
16

By: _________________________ Date: ________________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
“Agreement to Establish the WLS Yadkin 01 Umbrella Mitigation Bank within the State
of North Carolina:

National Marine Fisheries Service:

17
By: _________________________ Date: ________________