20160849 Ver 1_Mitigation plan call_20200317

Strickland, Bev
From: Tugwell, Todd J CIV USARMY CESAW (USA) <[e-mail]>
Sent: Tuesday, March 17, 2020 4:51 PM
To: Cara Conder; Christopher Tomsic; Daniel Ingram; Adam McIntyre; Kayne Van Stell
Cc: Roden Reynolds, Bryan K CIV (US); Kim Browning; Haupt, Mac; Davis, Erin B
Subject: [External] RE: Upper Rocky mitigation plan call
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All,
thank you for arranging to talk about Upper Rocky today. I just wanted to send a follow up email now that I've had a chance
to review my notes. Unfortunately I did not have access to my email or files during the meeting, so I did not recall all of the
specific comments that we believe need to be addressed, so I have restated all the comments below, including a few that we
did not discuss. Bryan and I spoke after the meeting, so he is up to speed on our conversations as well. Please look at the
comments below. For the financial assurance comments in particular, I saw Cara's email and will coordinate with Carl to see if
there is a time we can arrange a call with a rep from the insurance company.
Thank you,
Todd
Financial Assurances:
1. We need to have the assurances changed so that the timeframes in the effective coverage periods (Page 4) allow us time to
conduct reviews of the as -built and monitoring reports. Ideally, coverage for the different periods should only terminate once
we have provided approval of the as -built or monitoring reports.
Side note here - the mitigation plan discusses completion of planting at the end of May, which demonstrates that the
timeframes included in the insurance policy that only cover construction through April 1st would obviously be insufficient
since we would never be approving as -built until after the site work is complete (including planting). (see my additional
comment about the May planting deadline in the mitigation plan section below)
2. Section VI, Part 4 - under renewal, cancellation, and termination, subpart C dealing with fraud and material
misrepresentation should not be included, nor should non-payment of premium (subparts B and D). Our understanding is that
the premium is to be paid up front, but that is not clear in the policy, but more importantly, if the premium is paid up front
there is no reason for either of these provisions to be in the policy.
3. Section III, Part 1 dealing with Force Majeure needs to be modified to include a statement that floods (including due to
Hurricanes) & drought are not included as a natural catastrophe or disaster, and are covered by the policy. This may also
necessitate a change to the wording of the instrument. We are working with Carl on some language to include in our
instrument now.
4. 1 noted that the financial assurance section in the mit plan does include a cost breakdown and a provision for
contingency/remedial action of $70 K following initial construction, but this amounts to only 5.3% of the cost of construction,
which seems inadequate. This amount also diminishes across the life of monitoring, so there is even less contingency funding
available toward the end of the project.
Easement language — (Please note that I am providing these comments for your consideration as I'm not sure if the
easements have been recorded yet.):
1. Regarding the clause to prohibit subdivision, (Article III, Part M), we are generally OK with that provided that the landowner
(Grantor) agrees to it.
2. The easement currently allows mechanized vehicle access for several activities, including monitoring; however, we do not
want any vehicular access for routine monitoring other than on existing roads and trails that are included in the approved
mitigation plan. This is something that we are currently trying to update in the easement template.

3. 1 did not see surveys for all the parcels attached to the conservation easement, in particular the parcel closest to Bailey
Road (possibly owned by the Town of Cornelieus?). It also looks like the easements are not quite consistent with the maps in
the final mit plan (the trails don't appear to be removed, and there appears to be an additional crossing labeled Access Point
2), so it would be good to discuss and get clarification about this.
I've also looked over the responses to the mitigation plan comments and we have some concerns here:
1. DWR comment 3 regarding removal of deposition to historically buried hydric soils. We have never agreed to restoration
credit non-hydric soils, or within areas that are excavated deeper than 12", which is what it seems is proposed here. It would
be helpful if the mitigation plan was updated to note that excavation will not exceed 12" in wetland restoration areas, and
also it should be noted that areas that do not meet hydric soils criteria during monitoring will not receive credit.
2. DWR comment 6— in response to this comment, a statement was added that wetland performance standards may be
revisited based on early monitoring data, which suggests that we may agree to modify performance standards based on early
monitoring. I do not believe this should be included in the adaptive management plan, and I don't expect that we would
agree to reduce performance standards, if that is what's suggested.
3. USACE Comment 6 & DWR Comment 10 - R3 should not run parallel down the channel as shown, but should tie in farther
upstream. We discussed this during the call today, including the possibility of addressing this with additional performance
standards. However after the call, I reviewed my notes from the site meeting, the WLS meeting minutes, and discussed this
with Mac. It is clear that this has been a concern from our first review. The minutes note our concern and state that the
location of R3 would be justified with lidar and site topography, but a review of this data actually supports connecting R3 into
R6 just below the beaver dam or shortly downstream of that. Figure 2 (topo map) clearly shows a channel (R3) connecting to
R6 in the area of the beaver dam. Figure 3 (Lidar) shows a channel excavated along the valley wall, which is typical of
floodplain streams, but does not indicate any valley or crenulation within the proposed location of R3. Based on this, it does
not appear that the mitigation plan justifies running R3 parallel with R6 for that far down valley, and it's my opinion that R3
needs to be connected farther stream on R6 than is currently shown, as was stated during the field review of the site.
4. 1 don't see where the stream buffer spreadsheet that shows how credits from the buffer were determined, but it looks like
site actually lost about 190 credits due the calculations. Please be aware that you don't have to run this method unless they
have more than 5% of the project with less than 50 foot buffers, and based on the maps I don't think this is the case. So in this
instance, it does not appear that a reduction of 190 credits is required.
5. Planting needs to be complete planting by April 30=h at the latest. After this point, the growing season should not count as a
year of monitoring, despite meeting the 180 requirement.