20180181 Ver 1_SAW-2017-02527 Draft MP Comment Memo_20191108

Strickland, Bev
From:
Dailey, Samantha J CIV USARMY CESAW (USA) <[e-mail]>
Sent:
Friday, November 8, 2019 1:05 PM
To:
Adam McIntyre; Cara Conder
Cc:
Tugwell, Todd J CIV USARMY CESAW (US); Kim Browning; Haupt, Mac; Davis, Erin B;
Wilson, Travis W.; Bowers, Todd
Subject:
[External] SAW-2017-02527 WLS Neuse 02 UMBI - Scarborough Draft Mitigation Plan
Comment Memo
Attachments:
Long Term Management Cost Estimate Template.pdf, SAW-2017-02527 WLS Neuse
02 UMBI & Scarborough Draft Mit Plan IRT Comment Memo.pdf, WLS Neuse 01 UMBI
Draft (with comments).docx
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Good afternoon,
Attached are the WLS Neuse 02 UMBI, Scarborough Mitigation Plan, Draft Mitigation Plan (dated June 2019) IRT
comments. You may proceed with developing the final mitigation plan for the WLS Neuse 02 UMBI, Scarborough
Mitigation Site provided you adequately address all comments/concerns in the enclosed memo. Please ensure that each
member of the IRT is provided a copy of the Final Mitigation Plan. In addition, please submit your Nationwide Permit 27
application to this office for review and approval prior to discharging fill material into waters of the United States.
Please let me know if you have any questions.
Sincerely,
Sam
Samantha Dailey
Regulatory Project Manager
U.S. Army Corps of Engineers
Regulatory Division
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
[phone], Ext. 22
[e-mail]

Worksheet for Conservation Easement Stewardship Endowment
Property Name:
Annual Monitoring Costs Calculations:
Date:
Quantity
Rate
Cost
1. Staff time includes salary and benefits
A
Staff time prior to visit
includes landowner contact and file review
B.
Staff time to monitor easement
(includes travel, discussions with landowner, considers size of tract,
number of parcels, terrain, etc.
C
Staff time post -visit
(includes completing report, submitting documentation)
D.
Annual cost of staff time needed to address the exercise of reserved
rights by landowner. 10 % chance happening in any given year (10
hours X $50)*10 % _ $50.00
E.
Annual cost of staff time needed to address minor violations. 10%
chance happening in any given year (10 hours X $50)*10% _ $50.00
2. Travel Costs for a Monitoring Visit
A.
Reimbursement per mile(per IRSguidelines)
B.
Reimbursement for meals
C.
Reimbursement for lodging
3. Supplies
A.
4. Miscellaneous Duties
A.
B.
5. Site Mana ement
A. Site specific management plans and reserved rights.
Total Annual Monitoring Costs: Per Year
Defendingan
Easement into Perpetuity
A.
Staff time
B.
Legal Counsel
C.
Other Incidentals
Stewardship Complexities
A.
No Additional Stewardship Complexities
B.
Level 1 Stewardship Complexities*
C.
Level 2 Stewardship Complexities—
D.
Level 3 Stewardship Complexities —
Total Annual Monitoring Costs
Amount needed to earn annual monitoring costs at 3% APR
Total Cost for Legal Defense
Stewardship Complexities

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF:
CESAW-RG/Dailey
MEMORANDUM FOR RECORD
ACTION ID No: SAW-2017-02527
November 8, 2019
SUBJECT: WLS Neuse 02 UMBI / Scarborough Mitigation Site Draft Mitigation Plan IRT
Comment Memo
U.S. Army Corps of Engineers Comments (Kim Browning):
1. The credit tables for wetlands on Figure 10, table 9 and the cover sheet of the design
sheets don't match.
2. Design sheet 20 shows a permanent ford crossing on UT1A near the confluence with
UT1-R1, but the width is not specified, nor is this depicted on figure 10. Stream crossing
areas need to be removed from the creditable length. All asset tables should be adjusted
accordingly. Further, if the crossing is to remain within the easement boundary, please
discuss the maintenance during monitoring, and during long-term stewardship.
3. If the crossing remains within the easement boundary, funds for maintenance in the LTM
plan should be accounted for.
4. SHPO identified a previously recorded archaeological site, 31WY221, in the southeast
corner of the subject parcel. Please include the location of this on the design sheets to
ensure that it remains outside the area of impact.
5. Figure 10: Please provide separate maps for proposed conservation measures (Concept
Plan Map) and monitoring practices (Monitoring Map).
6. The design sheets show a typical for a water quality treatment feature, but it's unclear
where this is located on the project. If located within the conservation easement please
discuss whether this BMP will require maintenance during monitoring/LTM, and that it's
located outside of jurisdictional features.
7. Page 10 of the UMBI, NMFS contact is Twyla Cheatwood, NOAA Fisheries Service-
HCD, 219 Ft Johnson Road, Charleston, SC 29412 (she prefers electronic submissions).
8. Section 2.3: Does the approved conservation easement language allow for maintained
access roads? The IRT does not approve of maintained roads or trails within the
easement. Access roads are not consistent with the template easement language and
would send a mixed message to property owners who are told that they cannot mow
within the easement. Additionally, if access roads were located within the easement, long
term maintenance would need to be considered.
9. It appears that not all existing wetlands are accounted for on Figure 10. This is a
consideration in areas where existing wetlands exist and P 1 stream restoration is
proposed. Wetland 6 and Wetland 4A intersect areas of UT 1 B and UT 1 A proposed for
restoration. Wetland gauges should be placed in these areas to ensure that no functional
loss occurs.

10. Please place at least one permanent veg plot along UT1-R3, especially in areas where a
P2 cut will occur.
11. Section 3.6.3: There is some concern for hydrologic trespass to occur along Casey Mill
Road. The bordering roads are not much higher than the existing ground elevation which
could present serious flooding issues, especially with P 1 restoration proposed.
12. Section 3.7.3: Please remove the statement "Any future stream crossing locations will be
strategically located to access the interior property during the monitoring period and
long-term stewardship..." If stream crossings are proposed or anticipated, those areas
should be included on Figure 10 and on the design sheets. All crossings should be
removed from the creditable area.
13. Table 4, page 23: BHR should not exceed 1.2 for P 1 restoration reaches.
14. Functional Uplift Potential is described by the Stream Functions Pyramid SQT tool,
which is helpful information, but it would be beneficial to have this information tied in
relation to the NCSAM forms, since it is the approved stream assessment method for the
Wilmington District, to show the current functional assessment and room for functional
Uplift.
15. Additional information is needed in order to determine a 3:1 ratio on Upper UT2, as
presented. It appears to be fully buffered and surrounded by wetland preservation, one
log riffle and approximately 125 if of channel work to tie into the lower end. There are no
records of ratios being discussed. As proposed a ratio of 4 or 5:1 would be more
appropriate.
16. Section 5.2: Please note that credit releases are based upon meeting all performance
standards, not just wetland hydro -period, for example.
17. The bench widths don't appear to be adequately designed on the P2 portion, typically they
are at least two times bankfull width.
18. Page 35, last sentence: A final letter from SJAB should be included in the final mitigation
plan prior to approval. If the planned planting list is altered after approval of the final
mitigation plan, an updated list should be provided to the IRT for approval as an
addendum to the approved plan.
19. General Comment on Wetland reestablishmentIt would be beneficial to add some
coarse woody debris to the depressional areas and throughout the wetland for habitat, and
to help store sediment, increase water storage/infiltration, and absorb water energy during
overbank events.
20. Section 8.1: All four bankfull events must be in separate years.
a. BHR should not exceed 1.2 (also on Table 20).
b. Channels classified as intermittent should have at least 30-days consecutive flow,
and all single -thread channels should maintain jurisdictional features (bed, bank).
21. Section 8.2: 30-days consecutive flow must be documented.
22. Section 8.3: I would suggest restating that your hydrology standard will be at least 12%,
rather than 12-16% because as it reads, you may not be meeting performance standards if
you exceed 16%.
23. Flow gauges should be placed in the upper 1/3 of intermittent reaches.
24. Section 9.3: Volunteer species are only counted towards success if they're species on the
approved planting list.
25. Table 21: A detailed list of monitoring practices should be provided and itemized.

26. The Long -Term endowment fund does not seem to be adequate for 256 acres. The letter
from UP2S has a different amount than the attached endowment table.
U.S. Army Corps of Engineers Comments (Sam Dailey):
1. The mitigation bank/easement acreage should be provided in the background
information.
2. Page 7, Section 1.3 — States "site protection through a 239-acre conservation easement in
excess of 50 feet from the top of the restored streambanks, will protect all streams,
wetlands and aquatic resources in perpetuity." In Appendix D, the UP2S Annual
Monitoring and Legal Defense Endowment indicates the Scarborough Expanded acreage
is 256 acres. Further, Appendix I, page 4, Section 1.2 states "the project area is comprised
of 2 easements and is approximately 253 acres." Please clarify which acreage is correct.
3. Page 28, Section 5.2 Credit Release — States "10% of SMCs will be withheld until four
bankfull events, in separate monitoring years, have been documented." Page 49, Section
8.1, Stream Hydrology states "four separate bankfull or over bank events must be
documented within the seven-year monitoring period. At least two bankful events must
occur in separate years. Otherwise, the stream monitoring will continue until four bankful
events have been documented in separate years." As also indicated in DWR comment 17,
please update all bankful events must occur in separate years.
4. Appendix F — Please include the original submittal date and revised date on Figure 4 —
Jurisdictional Waters Map. Please also note that the PJD will be approved in conjunction
with the UMBI/bank approval.
5. Appendix G — Please provide correspondence/meeting notes between WLS and Seymour
Johnson AFB indicating their cooperation/approval of the project.
6. UMBI: Please reference my August 12, 2019 email regarding the WLS Neuse 01 UMBI.
The comments provided in that email should be applied to the WLS Neuse 02 UMBI.
I've attached that document for your reference.
NC Division of Water Resources Comments (Erin Davis, Katie Merritt, Mac Haupt, and Anthony
Scarborough):
1. Page 14, Section 3.4.1— The bottom paragraph notes that the NCDWQ stream scores
were verified on -site by USACE and DWR. However, there are discrepancies in the
stream statuses for multiple reaches presented in Table 2 compared to the DWR
Determination Letter dated February 7, 2019. Based on DWR's evaluation UT1B and
UT3 were identified as ditches and UT 1-R2 and UT2 were identified as intermittent
streams. DWR is concerned about post -construction flow for UTIB and UT3, pending
review of the 2019 flow gauge data.
2. Page 21, Section 3.7.3 —Appendix F Figure 4 does not show all ditches within the Project
Site. Please include a separate updated figure. Is there a ditch along the northern
easement boundary?

3. Page 20, Section 3.6.1— Please note the 60-foot Casey Mill Road right-of-way since it
bisects the Project Site. What are the setbacks from the easement boundary to existing
culverts?
4. Page 21, Section 3.7.3 — Based on the LiDAR signatures it appears there could be at least
one pipe crossing the northern easement boundary, please confirm. If so, will the
structure be maintained under the proposed access path?
5. Page 22, Section 3.7.4 — Please confirm that only one permanent stream crossing is
proposed.
6. Page 23, Table 4 — The performance standard for bank height ratio is not to exceed 1.2
(NCIRT 2016 Mitigation Update). Please update the Hydraulics (Level 2) Functional
Design Objective.
7. Page 27, Section 5.1 — Please confirm whether the proposed Water Quality Treatment
Feature was included in the proposed wetland re-establishment acreage total.
8. Page 29, Section 6 — DWR reiterates concerns discussed at the IRT field meeting as to
whether the upper portions of UT3, UT 1 B, UT 1 A and UT2 will develop headwater
stream features and maintain fluvial processes. We believe these reaches may be at risk
for potential stream credit.
9. Page 34, Section 6.2.4 —
a. Recommend renaming section to avoid confusion regarding "buffer" and to be
inclusive of wetland planting areas.
b. The planting zones identified as "headwater riparian, riparian, and
transitional/upland" do not match the Figure 10 legend items as noted or the
Revegetation Plan (Sheets 25-29). Please use target communities for mapping
proposed planting zones in the Revegetation Plan instead of buffer preservation,
enhancement and restoration categories.
c. Also, please confirm the reference communities and target communities. Coastal
Plain Small Stream Swamp is listed with Coastal Plain Bottomland Hardwood on
page 34 and Cypress -Gum Swamp on page 35.
10. Page 36, Table 12 - DWR requests capping the proposed percentage of green ash
(Fraxinus pennsylvanica) to be planted at 5% since emerald ash borer (Agrilus
planipennis) has been detected in Wayne county and has the potential to impact long-
term tree density and canopy cover.
11. Page 36, Section 6.2.5 - Completion of planting at the end of May would put the 180-day
vegetative monitoring in late November. DWR would question the validity of MY
vegetative survey results if performed after leaf drop. Planting beyond the IRT 2016
guidance date of March 15t' is not recommended and may result in an extended
monitoring period being required.
12. Page 38, Section 6.2.6 — Please provide more information on the proposed tree throws.
How extensive is the proposed distribution?
13. Page 40, Section 6.2.7 — Limited beaver activity is noted, please provide more
information on the current/past beaver activity and any management efforts.
14. Page 46, Section 6.5.3 — Are all five permanently proposed access paths from the
northern easement boundary necessary? Since access paths will be permanent, please
include a detail in the design plan.
15. Page 47, Section 6.5.1—

a. Please include a figure showing all ditches proposed to be plugged, filled or
partially filled.
b. Please note that for proposed Priority II stream reaches, soil amendments may be
needed on benches and banks to support the establishment of vegetation. DWR
has noted that Priority II reaches are prone to low stem density and vigor and bare
ground.
16. Pager 47, Section 6.5.2 —
a. Please identify potential bioremediation techniques proposed as stream
improvement features.
b. Please include a brief description of the proposed Water Quality Treatment
Feature (Sheet 5). Is this feature proposed to reduce the risk of hydrologic trespass
east of the easement boundary?
c. Please locate any proposed vernal pools on the project design plan.
17. Page 49, Section 8 —
a. Stream Hydrology — Please update all bankfull events must occur in separate
years.
b. Stream Profiles — Please update the BHR shall not exceed 1.2 along restored
stream reaches.
c. Continuous Flow — Continuous surface water flow must be documented to occur
every year for at least 30 consecutive days.
18. Page 50, Section 8.3 — DWR recommends a 10 percent minimum wetland hydroperiod
performance criteria for the ridge and levee areas.
19. Page 51, Section 9.1.1 — DWR would prefer both crest gauge and automated
photography documents of flood flow, or the use of pressure tranducers.
20. Page 52, Section 9.1.3 — Continuous surface water flow must be documented to occur
every year for at least 30 consecutive days. Please update the first sentence to reflect this
requirement.
21. Page 56, Table 20 —
a. Hydraulics (Level 2) — Please include photo loggers and change BHRs to less
than 1.2.
b. Geomorphology (Level 3) — Please note vegetation vigor requirement.
22. Figure 1 — Please include property boundary/tax parcel lines.
23. Figure 10 —
a. Please include the permanent stream crossing.
b. DWR prefers flow gauges be installed within the upstream 1/3 length of a reach,
thus would like to see gauges on UTIB and UT3 shifted slightly upstream.
c. There are no veg plots or groundwater gauges in any of the 7.9 acres of wetland
enhancement areas. Please include representative monitoring stations within this
mitigation type area or shift the plot and gauge on the W4A wetland boundary to
within the enhancement area.
d. Placement of groundwater gauges within relic ditch paths is not recommended.
e. Please include an additional 3-4 groundwater gauges closer to the proposed
wetland perimeters and easement boundaries. DWR feels these areas are
underrepresented.
f. Please include veg plots within the transition/upland areas that are proposed for
planting.

g. On future monitoring plan figures, please show a distinction between the wetland
areas delineated for the 10-12% and 12-16% hydroperiods indicated on the Soils
Report Figure 3.
24. General Design Plan Comment — Please include existing wetlands on plan view sheets.
25. Sheet 2 — Please confirm whether there is any fencing existing or proposed for the project
area. If not, please update the legend.
26. Sheet 4 — The Log Vane detail indicates a footer log as optional. DWR recommends the
use of footer logs to aid in long-term bank stability.
27. Sheet 5 — Please confirm that the Water Quality Treatment Feature requires no long-term
maintenance. Will this feature be planted with wetland stems and/or plugs or seeded only
(with species that can tolerate 18-inch inundation)?
28. Sheet 6 —
a. Please include stone type/size for the Constructed Stone Riffle.
b. Please confirm whether the Channel Block will have a restrictive material core
(clay composition).
29. Sheet 7 —Log Step Pools are not shown on the plan sheets, please confirm and update the
legend and detail sheets accordingly.
30. Additional Details — Please include details for ditch filling, bare root planting, and live
stake planting. If partial ditch filling is proposed, please indicate the maximum depth
from top of bank to be filled or minimum percentage of ditch to be filled.
31. Sheet 9 — A temporary stream crossing is shown in an area that appears to be located in a
wetland restoration/enhancement area. Please confirm this crossing is over an existing
ditch that is not proposed to be filled during construction.
32. Sheet 10 — Please confirm the type of structure proposed at Station 27+50.
33. Sheet 12 — DWR is concerned about the bench widths proposed for UTI-R2 and UTI-
R3. DWR recommends that floodplain benches be at least two times bankfull width.
Particularly of interest are the bench widths on the outer meander bends where much of
the flow energy vectors are directed.
34. Sheet 13 — DWR suggests shifting the UT2 to enter UTI-R2 at a riffle rather than a pool,
or include a toe protection measure at 32+08.
35. Sheet 15 - Was a toe protection measure considered for the first bend after the culvert
crossing near Station 58+25?
36. Sheet 27 — Please confirm graded area along the easement boundary is the Water Quality
Treatment Feature. Please add the Water Quality Treatment Feature as unique legend
item and include on a Plan and Profile or Grading Sheet. Also, indicate the location of the
proposed outlet channel shown on the detail.
37. Appendix F — Please include the revised June 2019 PJD application package and
USACE's PJD Approval in the Final Mitigation Plan.
DAI LEY.SAM
Digitally signed by
DAILEY.SAMANTHA.J.
A NTH A.J .13 8
1387567948
7567948
Date: 2019.11.08
12:54:22-05'00'
Samantha Dailey
Project Manager
Raleigh Field Office

Agreement To Establish The WLS NEUSE 01
UMBRELLA MITIGATION BANKING INSTRUMENT
WITHIN THE STATE OF NORTH CAROLIN8[DSJcuQ1]
USACE approval of this Instrument constitutes the regulatory approval required for
the WLS NEUSE 01 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 sites are suitable
mitigation bank sites, and that implementation of the Mitigation Plans 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 L• General Provisions
A. The Sponsor is responsible for assuring the success of the restoration,
enhancement, and preservation activities at the Bank sites, 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.

B. The goals of the WLS Neuse 01 Umbrella Bank sites 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 IL• 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) 03020201 within the Neuse
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.
0

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-

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.

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 VIIL• 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).
G7

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.
0. All financial assurances shall be made payable to a standby trust or to a third -
party designee, acceptable to the Corps, who agrees to use funds available through the
financial assurances towards completion of the project or to provide alternative
mitigation, less reasonable administrative fees for the third -party designee.
Notwithstanding the above, the standby trust or third -party designee is responsible only
for using commercially reasonable efforts to utilize the financial assurances to advance
the project as far, and toward completion as the financial assurances allow. To the extent
the financial assurances are not sufficient to complete the project, the standby trust or
third -party designee is not responsible for funding any funding deficiencies in order to
complete the project. Financial assurances structured to provide funds to the Corps in the
event of default by the Bank Sponsor are not acceptable.iDslcuc(z]
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
rol

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
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 XIL• 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
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.
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:
Ms. Samantha Dailey
U.S. Army Corps of Engineers
Regulatory Division
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
USEPA:
Mr. Todd Bowers
Wetlands Section - Region IV
Water Management Division

U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
USFWS:
Ms. Emily Wells
U.S. Fish and Wildlife Service
Post Office Box 33726
Raleigh, North Carolina 27636-3726
NCWRC:
Mr. Travis Wilson
North Carolina Wildlife Resources Commission
Skyes Depot, 2430 Turner Road
Mebane, NC 27302
NCDWR:
Mr. Mac Haupt
Division of Water Resources
North Carolina Department of Environmental Quality
Post Office Box 29535
Raleigh, NC 27626-0535
NMFS:
Mr. Ken Riley
National Marine Fisheries, NOAA
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
NCSHPO:
Ms. Renee Gledhill -Earley
State Historic Preservation Office
4617 Mail Service Center
109 E. Jones Street
Raleigh, North Carolina 27699
10

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in within the
State North Carolina: iDSJCUc(3]
Sponsor: Water & Land Solutions, LLC
IN
U.S. Army Corps of Engineers:
Date:
By: Date:
II

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
U.S. Environmental Protection Agency:
By: Date:
12

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
U.S. Fish and Wildlife Service:
By: Date:
13

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
N.C. Division of Water Resources:
By: Date:
14

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
N.C. Wildlife Resources Commission:
By: Date:
15

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
NC State Historic Preservation Office:
By: Date:
16

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS Neuse 01 Umbrella Mitigation Bank in North
Carolina":
National Marine Fisheries Service:
By: Date:
17