20181694 Ver 1_UMBI_Draft_1_17_2020_20200309

ID#* 20181694 Version* 1
Select Reviewer:*
Mac Haupt
Initial Review Completed Date 03/09/2020
Mitigation Project Submittal - 3/9/2020
Is this a Prospectus, Technical Proposal or a New Site?* O Yes a No
Type of Mitigation Project:*
rJ Stream r Wetlands [Buffer ❑ Nutrient Offset
(Select all that apply)
Project Contact Information
Contact Name:*
Angela Allen
Project Information
..............................................................................................................................................................................
ID#:* 20181694
Existing IDY
Project Type: r DMS r Mitigation Bank
Project Name: Dudley Mill Pond Mitigation Site
County: Cumberland
Document Information
Email Address:*
[e-mail]
Version: * 1
Existing Version
Mitigation Document Type:*
Mitigation Bank Instrument
File Upload: Wildlands Cape Fear 05
131.29KB
UMBI_Draft_1 _17_2020_submittal. pdf
Aease upload only one FDF of the corrplete file that needs to be subrritted...
Signature
Print Name:* Angela Allen
Signature:*

Version December 2016
AGREEMENT TO ESTABLISH THE WILDLANDS CAPE FEAR 05 UMBRELLA
MITIGATION BANK
IN THE CAPE FEAR RIVER BASIN WITHIN THE STATE OF NORTH CAROLINA
USACE approval of this Instrument constitutes the regulatory approval required for the
DUDLEY MILL POND MITIGATION SITE 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 , 20, by Wildlands Holdings VI, Inc., 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 agreement 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) is/are suitable
mitigation bank site(s), and that implementation of the Mitigation Plan(s) is/are likely to result in
net gains in wetland and/or stream functions at the Bank site(s), 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, *creation,
*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.
B. The goals of the Umbrella Bank site(s) is/are to restore, enhance, create and preserve
wetland and/or stream systems and their functions to compensate in appropriate circumstances

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for unavoidable wetland and/or 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 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 is
authorized to provide compensatory mitigation required by DA permits. The GSA for this Bank
shall include the Cape Fear Hydrologic Unit 03030005 in North Carolina. Credits are to be used
in the same HUC in which they were generated, and credits within each 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 described in the/each site -specific approved Mitigation
Plan(s).
B. The Sponsor shall monitor the Bank Site(s) as described in the approved Mitigation
Plan(s), until such time as the IRT determines that the performance standards described in the
Mitigation Plan(s) 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 new site 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 Plan. The addition of
any site to this instrument 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 Property for the
purposes of inspection of the Property and compliance monitoring of the Mitigation Plan.
Section IV: Reporting
A. The Sponsor shall submit to the DE, for distribution to each member of the IRT, an
annual report describing the current condition of the Bank Site(s) and the condition of the Bank
Site(s) in relation to the performance standards in the Mitigation Plan(s). The Sponsor shall
provide to the DE any monitoring reports described in the Mitigation Plan(s).
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 Project Manager for the permit and the Corps Bank Manager for the bank
site.
Section V: Remedial Action
A. The DE shall review the monitoring reports, as required in the Mitigation Plan(s), and
may, at any time, after consultation with the Sponsor and the IRT, direct the Sponsor to take
remedial action at the Bank site(s). Remedial action(s) required by the DE shall be designed to
achieve the performance standards as specified in the Mitigation Plan(s). All remedial actions

Version December 2016
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 any remedial measures required pursuant to the above.
C. In the event the Sponsor determines that remedial action 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 the Mitigation Plan(s) 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 based on considerations of 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 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 VIE• 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 the/each site -specific Mitigation Plan(s)
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:
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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 mitigation 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 as
specified 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 mitigation site (if
necessary).
The Sponsor must initiate implementation of the approved Mitigation Plan(s) 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 approved Mitigation Plan(s) must
be started by the end of the first full growing season following the initial sale of any credits from
the Bank. 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 restoration mitigation credits
will be available for sale by the Sponsor as specified in the final 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).
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 an annual ledger report, on each anniversary of the date of
execution of this agreement, showing all credits used, any changes in credit availability (e.g.,
additional credits released, credit sales, suspended credits, etc.), and the beginning and ending

Version December 2016
balance of remaining credits. The Sponsor shall submit the annual report 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 the Bank site(s) will be detailed in the site -specific Mitigation
Plan(s). 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 the 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 the site -specific
Mitigation Plan(s) 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 form acceptable to the DE,
sufficient to protect the Bank Site(s) in perpetuity. The CE shall be perpetual, preserve all
natural areas, and prohibit all use of the property inconsistent with its 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 Site, consistent with the Mitigation
Plan. The purpose of the CE will be to assure that future use of the Bank Site will result in the
restoration, protection, maintenance and enhancement of wetland and/or stream functions
described in the Mitigation Plan. The name and contact information for the Corps approved
easement holder and a draft copy of the CE will be provided in the site -specific Mitigation
Plans(s).
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.

Version December 2016
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 the site -
specific Mitigation Plan(s). {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 the 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 maintain the Bank site(s) 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 Mitigation
Plan. If the DE determines that the 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

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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.

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Sponsor:
Mr. Shawn D. Wilkerson
Wildlands Holding, VI
1430 South Mint Street, Suite 104
Charlotte, NC 28203
Corps:
Mickey Sugg
U.S. Army Corps of Engineers
Regulatory Division
69 Darlington Avenue
Wilmington, NC 28403
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
1142 I-85 Service Road.
Creedmoor, NC 27522
Ms. Gabriela Garrison
North Carolina Wildlife Resources Commission
1712 Mail Service Center
Raleigh, NC 27699-1721
NCDWR:
Mr. Mac Haupt
Division of Water Resources
North Carolina Department of Environmental Quality
Post Office Box 29535
Raleigh, NC 27626-0535
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NCSHPO
State Historic Preservation Office
Ms. Renee Gledhill -Earley
4617 Mail Service Center
109 E. Jones Street
Raleigh, NC 27699-4617
NMFS:
Mr. Ken Riley
National Marine Fisheries, NOAA
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
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Version December 2016
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Wildlands Cape Fear 05 Umbrella Mitigation Bank In
Cumberland County, North Carolina":
Sponsor:
itz
U.S. Army Corps of Engineers:
Date:
By: Date:
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Version December 2016
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Wildlands Cape Fear 05 Umbrella Mitigation Bank, Cape
Fear River Basin in the state of North Carolina":
U.S. Environmental Protection Agency:
By:
Date:
U.S. Fish and Wildlife Service:
By:
Date:
N.C. Division of Water Resources:
By:
Date:
N.C. Wildlife Resources Commission:
By:
Date:
NC State Historic Preservation Office:
By:
Date:
National Marine Fisheries Service:
By:
Date:
N.C. Division of Coastal Management:
By: Date:
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List of Appendices
Appendix A: Geographic Service Area Map
Appendix B: Mitigation Plan (Each plan should include construction costs, maintenance and
monitoring costs, draft copy of financial assurance documents, draft copy of site protection
instrument, and a long-term management plan as appendices to the plan.)
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