20091169 Ver 1_USACE Correspondence_20091120

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF November 19, 2009
Regulatory Division
Action ID No. SAW-2009-02113
Ms. Andrea M. Spangler
Senior Environmental Planner
Wildlands Engineering, Inc.
1430 S. Mint Street, Suite 104
Charlotte, North Carolina 28203
Dear Ms. Spangler:
oq- ?rL' q
NOV `G 0 2009
DENR -WATER OJJALITY
WETLANDS AND STORMWATER BRANCH
Reference is made to the DRAFT Prospectus for the Little Troublesome Creek Stream
Mitigation Bank received on October 13, 2009. The DRAFT Prospectus indicates that you
propose to restore approximately 3,375 linear feet of perennial stream channel, enhance
approximately 987 liner feet of perennial stream channel and preserve approximately 500 linear
feet of intermittent stream channel within the proposed bank boundaries of approximately 29
acres. The proposed mitigation bank is located south of Turner Road, and east of the Turner
Road, Way Street intersection in Reidsville, Rockingham County, North Carolina, within the
Cape Fear River Basin, Hydrologic Unit Code (HUC) 03030002.
On October 29, 2009, your DRAFT Prospectus was forwarded via electronic mail to
representatives of the Interagency Review Team (IRT). The individuals who received the
DRAFT Prospectus were: Kathy Matthews, United States Environmental Protection Agency
(USEPA), Eric Kulz, North Carolina Department of Environment and Natural Resources
(NCDENR), Howard Hall, United States Fish and Wildlife Services (USFWS), and Shari Bryant,
North Carolina Wildlife Resources Commission (NCWRC). Written comments were requested
by November 16, 2009.
Written responses to the DRAFT Prospectus were received from the USEPA, NCDENR
and NCWRC. These written responses are attached for your review. Also, based on our review,
the prospectus adequately addresses all the items required by the 2008 Mitigation Rule (33 CFR
Part 332) for a complete prospectus. Consideration of all these comments should be made prior
to submission of a complete prospectus. You should also be aware that a new model mitigation
banking instrument for private mitigation banks is available at our website
http://www.saw.usace.army.mil/WETLANDS/Mitigation/mitbanks html. It is also attached for
your review.
If you have questions or comments, please contact me at my Raleigh Regulatory Field
Office address, telephone [phone] ext. 26.
Sincerely,
Andrew Williams
Regulatory Project Manager
Raleigh Field Office
Enclosures
Copies Furnished (with enclosures):
GMs. Cyndi Karoly
NCDENR - Division of Water Quality
Wetlands/401 Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Ms. Jennifer Derby, Chief
USEPA - Wetland Regulatory Section
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960
Mr. Pete Benjamin, Field Supervisor
U.S. Fish and Wildlife Service
Raleigh Field Office
P.O. Box 33726
Raleigh, North Carolina 27636-3726
Ms. Shari Bryant
N.C. Wildlife Resources Commission
P.O. Box 129
Sedalia, North Carolina 27342-0129
Mr. Scott McLendon
U.S. Army Corps of Engineers
Wilmington District
69 Darlington Avenue
Wilmington, North Carolina 28403-1890
J?tEG S7,?r?.P
2, A UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
s ?? W REGION 4
ATLANTA FEDERAL CENTER
;F,trgC Gq(itEG1\Or 61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
November 12, 2009
Mr. Andrew E. Williams
Project Manager
Raleigh Regulatory Field Office
Wilmington District, Corps of Engineers
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Subject: Little Troublesome Creek Stream Mitigation Bank, Rockingham County, October 2009
Draft Prospectus
Dear Mr. Williams:
This is in response to your email requesting comments on the draft prospectus for
Wildlands Engineering, Inc.'s Little Troublesome Creek Stream Mitigation Bank. According to
the draft prospectus, the bank sponsor proposes to restore, enhance, and preserve 5,562 linear
feet of stream. The U.S. Environmental Protection Agency (EPA), Region 4 Wetlands and
Marine Regulatory Section reviewed the prospectus. We have the following comments for your
consideration, and the consideration of the Interagency Review Team (IRT). We recommend the
IRT schedule a site visit prior to making firm decisions on the appropriateness of the bank and
proposed mitigation ratios.
I . The prospectus adequately addresses all of the items required by the 2008 Mitigation Rule (40
CFR Part 230 and 33 CFR Part 332) for a complete prospectus.
2. On page 1, the prospectus states that the project is identified in the Ecosystem Enhancement
Program's 2004 Upper Cape Fear Basin Local Watershed Plan, and is also listed on the North
Carolina Division of Water Quality's (NCDWQ) list of impaired waters (303(d) list), due to
habitat degradation and turbidity. We acknowledge that there may be some functional benefits
from restoring the streams on-site and establishing or preserving riparian buffers. However,
according to the aerial photographs and Section 3.2.3 on page 6, it appears that the streams in the
project area are already surrounded by mature diverse vegetation, with few exotic or invasive
species. It may be difficult or impossible to perform the restoration of the stream channel
without destroying the existing riparian buffer. In general, EPA does not believe it is beneficial
to remove existing mature vegetation for channel improvements, and then to replace that mature
vegetation with live stakes and saplings. Further, it is unclear how the proposed work will be
Intemet Address (URL) • http://www.epa.gov
RecycledMecyclable . Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsurner)

work will be designed to handle the potentially flashy stormwater inputs from the urban
surroundings. Significant stormwater inputs may cause stability problems with the project,
particularly if the mature, deep-rooted vegetation is removed from the streamside area.
3. EPA will defer to NCDWQ for determination of the appropriateness and determination of
riparian buffer credit at this site.
4. Page 1 of the prospectus states that buffer widths will range from 50 to 100 feet from the top
of the stream bank, with minor encroachments from utility lines. However, from the attached
figures, it appears that the buffer on the west side of the site is much narrower in places. In
addition, an area of about 1,000 linear feet on Irvin Creek above the confluence with Little
Troublesome Creek appears to be constrained between a sewer easement and a gas line
easement. EPA has concerns that the buffer may be ineffective in some areas of the site.
5. Page 6 of the prospectus states that there are overhead utility lines, sewer line easement and a
gas line easement on the property. Figure 2 shows the sewer line and gas line, but not the
overhead utility lines. All utilities should be delineated on the site plan. Further, EPA has
significant concerns for the maintenance and potential repair/expansion of easements on the
property and how that may affect the quality of the site. At a minimum, the right-of-ways and
easements must be omitted from the conservation easement. These types of areas serve as entry
corridors for invasive and exotic species, and may affect the overall quality of the project in the
long term.
6. It is unclear where the project starts at the upstream end of Irvin Creek. The creek is outside
of the project area at the north end. Is credit proposed for any of the off-site stream length? Any
linear footage outside of the conservation easement should not be given credit.
7. Pursuant to 40 CFR Part 230.94(c)(14), the mitigation plan must include a long-term
management plan. Although this is the prospectus, and not the mitigation plan, EPA
recommends that the bank sponsor consider the requirement to "include a description of how the
compensatory mitigation project will be managed after performance standards have been
achieved to ensure the long-term sustainability of the resource, including long-term financing
mechanisms and the party responsible for long-term management." The bank sponsor has
provided some information on long-term management in Section 4.2 on page 9. However, the
sponsor does not indicate whether it will transfer the property to the North Carolina Stewardship
Program or to a private conservation organization, or whether the sponsor will continue to hold
the easement in perpetuity. Also, annual inspection/maintenance of the easement boundaries
should be included as a commitment, particularly given the location of the site in a relatively
urban area, and the presence of so many rights-of-way or other easements along and throughout
the property. Finally, the long-term management plan should include information on the long-
term financing mechanisms for managing the property in perpetuity, including re-recording the
instrument in coming decades.
2
Thank you for the opportunity to review this project. If you have any questions or
comments, please contact Kathy Matthews, of my staff, at [phone] or
[e-mail].
Sincerely,
CtY?.V J-?aV Pu-
Jennifer S. Derby
Chief
Wetlands and Marine Regulatory Section
cc: USFWS
NCDWQ
NCWRC
North Carolina
Beverly Eaves Perdue
Governor
NCDENR
Department of Environment and Natural
Division of Water Quality
Coleen H. Sullins
Director
November 10, 2009
Mr. Andrew Williams
U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
Re: Little Troublesome Creek Stream Mitigation Bank
October 2009 Draft Prospectus
Rockingham County
DWQ #09-1169
Dear Mr. Williams:

tai^1 : ? 2009
Resources _a L
Dee Freeman
Secretary
The Division of Water Quality (DWQ) 401 Oversight and Express Review Permitting Unit has
reviewed the Draft Prospectus for the above-referenced site.
DWQ visited the site on March 12, 2009. Both Irwin Creek and Little Troublesome Creek are
quite unstable, and are incised with actively eroding banks. However, the site is completely
forested with relatively mature trees (with the exception of the utility easements). It is DWQ's
experience that many stream restoration projects typically involve completely clearing a wide
(e.g. 100-foot) swath through the woods in order to construct the new channel and grade the
floodplains. Once the new channel is constructed, bare-root seedlings are typically planted. A
loss of nutrient removal function occurs, at least until the site achieves sufficient vegetative
groMh to remove nutrients. We also note that especially in Piedmont sites, bare-root seedlings
have some difficulty surviving and thriving in the disturbed clay soils which are now fully
exposed to the sun.
We have approved a number of projects in which small pieces of equipment were used, and the
restoration was conducted while retaining many of the riparian zone trees, especially the larger
specimens of desirable species. This method of restoration is certainly more expensive and the
work takes longer, but the result is a higher-quality restoration in which riparian zone functions
(nutrient removal, shading, organic matter input) recover more quickly. During the site visit, we
did discuss the concept of locating the new channel in areas with less trees, and several potential
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd.. Suite 250, Raleigh, North Carolina 27604-2260 One
Phone: [phone] FAX: [phone] Customer Service: 1-877-623-6748 NOrthCarollna
Internet httpa/h2o.enr.state nc.us'ncwetlands
An Equal Opportunity; Affirmative Action Emoloyer Naturally
Mr. Williams
Little 11 ,_, ,. - .i?, Creek Stream Mitigation Bank
Draft Prospectus
Page 2 of 2
corridors were observed through which a new channel could be constructed with fairly minimal
large tree removal.
DWQ recommends that full consideration of the methodology described above be used to
develop the restoration plan, and some clear, measureable means of assessing uplift in aquatic
function should be presented, in order for us to support full-blown restoration of streams within
mature wooded corridors.
Based on the information provided in the Draft Prospectus, the site may be a good candidate for
a mitigation site, as long as the concerns listed above are addressed. However, DWQ reserves
the right to provide additional comments based on review of more detailed design plans.
Please feel free to contact Eric Kulz at [phone] if you have any questions regarding this
project or our comments.
Sincerely,
0
Cyndi B. Karoly, Program Manager
401 Oversight and Express Review Program
cc: File Copy (Eric Kulz)
Sue Homewood - DWQ WSRO
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Suite 250, Raleigh, North Carolina 27604-2260 olle t
Phone: [phone] FAX: [phone] Customer Service: 1-877-623-6748 NOI tr Carol lna
Internet: hnp://h2o.enr.state.nc.us/ncwetlands
An Equal Opportunity i Affirmative Action Employer Nato ra//"

North Carolina Wildlife Resources Commission
Gordon Myers, Executive Director
MEMORANDUM
TO: Andrew Williams, Raleigh Regulatory Field Office
U.S. Army Corps of Engineers
FROM: Shari L. Bryant, Piedmont Region Coordinator
Habitat Conservation Program
DATE: 16 November 2009
SUBJECT: Draft Prospectus for Wildlands Engineering, Inc. for Little Troublesome Creek Stream
Mitigation Bank, Rockingham County, North Carolina.
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) have reviewed the
subject document and we are familiar with the habitat values of the area. Our comments are provided in
accordance with provisions of the Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C.
661-667d), and North Carolina General Statutes (G.S. 113-131 et seq.).
Wildlands Engineering, Inc proposes to establish the Little Troublesome Creek Stream Mitigation
Bank. Approximately 3,375 linear feet of perennial stream channel would be restored, 987 linear feet of
perennial stream channel would be enhanced, and 500 linear feet of intermittent stream channel would be
preserved. In addition, approximately 29 acres of riparian buffer would be enhanced by removal and
management of invasive species. Riparian buffer widths would range from 50 to 100 feet with minor
encroachments from utility lines. The proposed mitigation ratios are 1:1 for stream restoration, 1.25:1 for
enhancement (level 1), and 5:1 for preservation. Up to 4,965 stream credits would be available with
successful completion of the project. The site would be protected by a permanent conservation easement.
The goals of the bank are to remove nutrients and sediments from the stream, increase dissolved oxygen,
improve stream bank stability and instrearn habitat, restore terrestrial habitat, and improve aesthetics.
Irvin Creek, Little Troublesome Creek, and unnamed tributaries to these streams flow through the
mitigation bank site. Little Troublesome Creek is a tributary to Haw River in the Cape Fear River basin.
There are records for the state significantly rare Carolina ladle crayfish (Cambartrs davidi) in Little
Troublesome Creek.
We offer the following continents and/or recommendations regarding the draft Prospectus:
Page 1 states: "The proposed stream restoration designs will primarily include Rosgen Priority
Levels 1 and 2..." Figure 2 shows a forested watershed within the proposed mitigation bank site.
We are concerned about the removal of mature, native trees for construction of the new stream
channel. If Rosgan Priority I stream restoration is proposed as the best method to address water
Mailing Address: Division of Inland Fisheries • 1721 Mail Service Center • Raleigh, NC 27699-1721
Telephone: [phone] • Fax: [phone]
Page 2
16 November 2009
Prospectus - Little Troublesome Creek Mitigation Bank
quality issues in the watershed, then the project should be designed to protect as many mature, native
trees as possible. These would provide stream bank stabilization and shade for the new channel.
Also, the design and subsequent construction methods should minimize impacts to the existing
forested areas to the maximum extent possible.
2. Page 1 states: "Riparian buffer enhancement is also part of the Little Troublesome and Irvin Creek
Mitigation Project. Approximately 29 acres of riparian buffer will be enhanced by removal and
management of invasive species while being protected with permanent conservation easements." It
is not clear whether riparian buffer enhancement includes only removal and management of invasive
species, or whether native tree species will be planted as part of the buffer enhancement. If the
existing forested areas will be impacted, then a vegetation planting and monitoring schedule should
be developed.
3. Page 1 states: "In general, buffer widths will range from 50 to 100 feet from the top of the stream
bank with minor encroachments from utility lines." Wider buffers are preferred where possible. We
often recommend a 100-foot undisturbed, native, forested buffer along perennial streams, and a 50-
foot buffer along intennittent streams and wetlands. Maintaining undisturbed, forested buffers along
these areas reduces impacts to aquatic and terrestrial wildlife resources, water quality, and aquatic
habitat both within and downstream of the project area. In addition, these buffers provide an
adequate travel corridor for wildlife species.
4. Page 2 states: "The proposed stream and riparian buffer mitigation project described above will
provide numerous ecological benefits within the Cape Fear River Basin. While many of these
benefits are limited to the project area, others, such as pollutant removal and improved aquatic and
terrestrial habitat have more far-reaching effects." While channel restoration that allows the stream
access to its floodplain would provide some nutrient and pollutant removal, it is unclear how
stormwater from upstream (e.g., volume and velocity) will be managed by the proposed stream
restoration and enhancement.
Page 6 states: "Several utility line rights-of-way intersect and run parallel to Irvin Creek and Little
Troublesome Creek and include overhead utility lines, a natural gas pipeline, and a sanitary sewer
line. Habitats within these areas range from moderately to heavily maintained." It is not clear
whether these rights-of-way will be included within the mitigation bank or simply be adjacent land
uses. Regardless, we encourage coordination with the local government or companies that manage
these rights-of-way to make these more wildlife friendly. We offer the following recommendations
for utility line rights-of-way to further improve wildlife habitat:
• Wheat/clover mixes can be planted with the edges maintained in native warn season
grasses for bugging, nesting, and loafing sites. The warm season grasses should be
mixed with other beneficial wildlife plantings (i.e., partridge pea, beggar weed, and
ragweed) to present some variety of food and cover. It is the "step-down" edge effect
from forest to open land that wildlife seem to prefer.
• Where feasible, use woody debris and logs to establish brush piles and downed logs
adjacent to the cleared right-of-way to improve habitat for wildlife.
• Minimize corridor maintenance and prohibit mowing between April 1 and October 1 to
minimize impacts to nesting wildlife. We suggest a maintenance schedule that
incorporates only a portion of the area - one third of the area, for example - each year
instead of the entire project every 3 or 4 years.
• Herbicides and pesticides should not be used in wetland areas or near streams,
Page 3
16 November 2009
Prospectus - Little Troublesome Creek Mitigation Bank
Thank you for the opportunity to review and cotmuent on this Prospectus. If we can be of further
assistance, please contact our office at [phone].
cc: Howard Hall, USFWS
Kathy Matthews, USEPA
Eric Kulz, DWQ

(Version June 2009)
AGREEMENT TO ESTABLISH THE * MITIGATION BANK
IN * COUNTY, NORTH CAROLINA
This Mitigation Banking Instrument (MBI) is made and entered into on the day of
, 200_, by the * , hereinafter Sponsor, and the U. S. Army Corps of Engineers
(Corps), and each of the following agencies, upon its execution of this MBI, 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
North Carolina Division of Coastal Management (NCDCM), and the North Carolina Division of
Water Quality (NCDWQ). The Corps, together with the State and Federal agencies that execute
this MBI, are hereinafter collectively referred to as the Interagency Review Team (IRT).
WHEREAS the purpose of this agreement is to establish a mitigation bank (Bank) providing
compensatory mitigation for unavoidable wetland 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 Sponsor is the record owner of that certain parcel of land containing
approximately * acres located in * County, North Carolina, described in the {title) *Wetlands
*Stream Mitigation Plan (Mitigation Plan), and as shown on the attached survey (Property);
WHEREAS the agencies comprising the IRT agree that the Bank site is a suitable mitigation
bank site, and that implementation of the Mitigation Plan is likely to result in net gains in
wetland and/or stream functions at the Bank site, and have therefore approved the Mitigation
Plan;
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 MBI.
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, 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 DE receives
documentation that confirms the Sponsor has accepted responsibility for providing the required
compensatory mitigation.
B. The goal of the Bank is to *restore, *enhance, *create and *preserve (type of wetland or
stream) *wetland *stream systems and their functions to compensate in appropriate
circumstances for unavoidable *wetland, *stream impacts authorized by Section 404 of the
Clean Water Act permits and or Section 10 of the Rivers and Harbors Act permits in
.i.
(Version June 2009)
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 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 District Engineer (DE) of the U.S. Army Corps of Engineers,
Wilmington District. The IRT shall review documentation for the establishment of mitigation
banks. 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 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 N.C. Division of Water Quality (NCDWQ) will
determine the amount of credits that can be withdrawn from the Bank.
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 bank is authorized
to provide compensatory mitigation required by DA permits. The GSA for this Bank shall
include the (Name Watershed) Hydrologic Unit 18 digit HUC) in North Carolina. {Provide
explanation why the service area identified will ensure that the aquatic resources provided
will effectively compensate for adverse environmental impacts across the entire service
area.} Use of a Bank site to compensate for impacts beyond the GSA may be considered by the
Corps or the permitting agency on a case-by-case basis.
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.
(Version June 2009)
A. The Bank site is a (general description of baseline conditions). A more detailed
description of the baseline conditions on the site is contained in the Mitigation Plan.
B. The Sponsor will perform work described on pages * of the Mitigation Plan, including
{briefly describe resource type(s) and amount(s) that will be provided (e.g.,
wetland/acreage and stream/linear feet of work to be undertaken) work to be performed
(e.g. planting, hydrologic and soil modifications, stream channel modifications, etc.) The
purpose of this work, and the objective of the Bank, is to {briefly describe the method of
compensation (i.e., restoration, enhancement, and/or preservation) and the manner in
which the resource functions of the mitigation project will address the needs of the
watershed. }
C. The Sponsors shall monitor the Bank Site as described on pages * of the Mitigation Plan,
until such time as the IRT determines that the success criteria described on pages * of the
Mitigation Plan have been met.
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 and the condition of the Bank in relation to
the success criteria in the Mitigation Plan. The Sponsor shall provide to the DE any monitoring
reports described on pages * of the Mitigation Plan.
B. The Sponsor shall provide ledger reports documenting credit transactions as described in
Section VIII of this MBI.
C. The Sponsor shall provide notification the DE each time a credit transaction occurs.
Section V: Remedial Action
A. The DE shall review the monitoring reports, and may, at any time, after consultation with the
Sponsor and the IRT, direct the Sponsor to take remedial action at the Bank site. Remedial
action required by the DE shall be designed to achieve the success criteria specified in the
Mitigation Plan. 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 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 success criteria, it shall provide notice of such proposed remedial action to all members
(Version June 2009)
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
Description of Wetland Community Types:
A. Wetland community types found in a mitigation bank will be described in accordance with the
procedures found in the NC Wetland Assessment Method (NC WAM, USACE, 2007). It is
expected that impacts to the NC WAM types listed below will be compensated by the Mitigation
Types as listed in order to qualify 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.
Mitigation Type NCWAM Type

CAMA CoastalWetland Salt/Brackish Marsh*
Riverine Riverine Swamp Forest/Non-Tidal Freshwater Marsh, Tidal
Freshwater Marsh
Riparian Bottomland Hardwood Forest, Headwater Wetland, Flood-
Plain Pool, Mountain Bog*
Non-Riparian wetter
variety Non-Riverine Swamp Forest, Seep, Small Basin Wetland,
Pocosins, Estuarine Woody
Non-Riparian, Drier
Variety Pine Flat, Pine Savannah, Hardwood Flat
-TABLE-
(Insert Table depicting the forms, amounts and types, in acres/linear feet, of compensatory
mitigation as well as the number of mitigation credits categorized by form and type)
Sample Table for wetlands:
Restoration Credits Restoration Equivalents Credits*
Coastal Marsh
Non riparian Wetter Variety
Non ri arian Drier Variety
Riparian
Riverine
Restoration Equivalents:
2 acres of Enhancement is equal to 1 restoration equivalent
4
(Version June 2009)
3 acres of Creation is equal to 1 restoration equivalent
5 acres of Preservation is equal to 1 restoration equivalent
Sample Table for Streams
Linear Feet Cold/Cool/Warm Stream Order
Tributary Name
B. It is anticipated by the parties that in most cases in which the DE, after consultation with the
IRT, has determined that mitigation credits from the Bank may be used to offset wetland impacts
authorized by Section 404 permits and/or Section 10 permits, that the Restoration Equivalents, as
enumerated above, constitute credits that are considered to be equal to restoration credits for the
purposes of compensatory mitigation. Therefore, the use of Restoration credits or Restoration
Equivalents credits, or any combination thereof, is acceptable to the DE for any permit
requirement so long as the required amount of credits are debited for a given mitigation
requirements. It is also understood that in order to satisfy mitigation requirements imposed by
the NC Division of Water Quality, that restoration impact amounts must be at a minimum of 1:1
such that for every one acre of impact, at least one acre of mitigation must be in the form of
restoration. Additionally, decisions regarding stream mitigation will be made consistent with
current policy and guidance and will be made on a case by case basis. 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 water 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, after notice of any proposed use of the Bank to the
members of the IRT, and consultation with the members of the IRT concerning such use. Notice
to and consultation with the members of the IRT shall be through the permit review process.
Section VII: Credit Release Schedule
All credit releases must be approved by the DE, in consultation with the IRT, based on a
determination that required success criteria have been achieved.
A. Credit Release Schedule for Wetlands (other than forested): If deemed appropriate by
the IRT, fifteen percent (15%) of the Bank's total restoration credits shall be available for sale
immediately upon completion of all of the following:
(Version June 2009)
1. Execution of this MBI by the Sponsor, the DE, and other agencies eligible for
membership in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this MBI; and
5. Recordation of the long-term protection mechanism described in Section X of this MBI,
as well as a title opinion covering the property acceptable to the DE.
The Sponsor must complete the initial physical and biological improvements to the Bank site
pursuant to the Mitigation Plan no later than the first full growing season following initial
debiting of the Bank. Subject to the Sponsor's continued satisfactory completion of all required
success criteria and monitoring, additional restoration mitigation credits will be available for sale
by the Sponsor on the following schedule:
1. 15 % upon completion of all initial physical and biological improvements made pursuant
to the Mitigation Plan (total 30%);
2. 10% after first year, if interim success measures are met (total 40%);
3. 15% after second year, if interim success measures are met (total 55%);
4. 20% after third year, if interim success measures are met (total 75%);
5. 10% after fourth year, if interim success measures are met (total 85%);
6. 15% after fifth year, if Success Criteria are met (total 100%).
The above schedule applies only to the extent the Sponsor documents acceptable survival and
growth of planted vegetation, and attainment of acceptable wetland hydrology as described under
the Success Criteria in the monitoring section of the Mitigation Plan. The final 15% of credits
will be available for sale only upon a determination by the IRT of functional success as defined
in the Mitigation Plan.
B. Credit Release Schedule for Forested Wetlands: If deemed appropriate by the IRT, fifteen
percent (15%) of the Bank's total restoration credits shall be available for sale immediately upon
completion of all of the following:
1. Execution of this MBI by the Sponsor, the DE, and other agencies eligible for membership
in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this MBI; and
5. Recordation of the long-term protection mechanism described in Section X of this MBI, as
well as a title opinion covering the property acceptable to the DE.
The Sponsor must complete the initial physical and biological improvements to the Bank site
pursuant to the Mitigation Plan no later than the first full growing season following initial
debiting of the Bank. Subject to the Sponsor's continued satisfactory completion of all required
success criteria and monitoring, additional restoration mitigation credits will be available for sale
by the Sponsor on the following schedule:
(Version June 2009)
1. 15 % upon completion of all initial physical and biological improvements made pursuant
to the Mitigation Plan (total 30%);
2. 10% after first year, if interim success measures are met (total 40%);
3. 10% after second year, if interim success measures are met (total 50%);
4. 10% after third year, if interim success measures are met (total 60%);
5. 10% after fourth year, if interim success measures are met (total 70%);
6. 10% after fifth year, if Success Criteria are met (total 80%);
7. 10% after sixth year, if vegetative Success Criteria are met (90%); and
8. 10% after seventh year, if vegetative Success Criteria are met (100%).
Provided that all Success Criteria are met, the IRT may allow the Sponsor to discontinue
hydrologic monitoring after the fifth year. The Sponsor will be required to monitor vegetation
for an additional two years after the fifth year for a total of seven years.
C. Credit Release Schedule for Streams: The following credit release schedule applies only
to those stream projects where Restoration or Enhancement I has been performed where pattern,
dimension, and profile, or dimension and profile (respectively) have been improved. Projects
constructed on the outer coastal plain that are subject to the Coastal Plain Information Paper
(USACE/DWQ 2007) where an engineered stream channel was not constructed, will be subject
to the criteria enumerated for wetlands above.
If deemed appropriate by the IRT, fifteen percent (15%) of the Bank's total stream credits shall
be available for sale immediately upon completion of all of the following:
1. Execution of this MBI by the Sponsor, the DE, and other agencies eligible for membership
in the IRT who choose to execute this agreement;
2. Approval of the final Mitigation Plan;
3. Mitigation bank site has been secured;
4. Delivery of the financial assurance described in Section IX of this MBI; and
5. Recordation of the long-term protection mechanism described in Section X of this MBI, as
well as a title opinion covering the property acceptable to the DE.
Subject to the Sponsor's continued satisfactory completion of all required success criteria and
monitoring, additional stream credits will be available for sale by the Sponsor on the following
schedule:
1. 15 % upon completion of all initial physical and biological improvements made pursuant
to the Mitigation Plan (total 30%);
2. 10% after first year, provided channel is stable and all other success measures are met
(total 40%);
3. 10% after second year, provided channel is stable and all other success measures are met
(total 50%);
(Version June 2009)
4. 10% after third year, provided channel is stable and all other success measures are met
(total 60%);
5. 10% after fourth year, provided channel is stable and all other success measures are met
(total 70%);
6. 15% after fifth year, provided channel is stable and all other success measures are met
(total 85%).
A reserve of 15% of the Bank's total stream credits shall be released any time after two bank-full
events have occurred, in separate years, provided the channel is stable and all other Success
Criteria are met. In the event that less than two bank-full events occur during the monitoring
period, remaining credit release shall be at the discretion of the IRT.
Section VIII: Accounting Procedures
A. The Sponsor shall develop accounting procedures acceptable to the IRT 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. Each time an approved credit transaction
occurs, the Sponsor must notify the DE within 30 days of the transaction.
B. 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), and the beginning and ending balance of
credits remaining. 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. The Sponsor shall provide financial assurances in a form acceptable to the IRT sufficient to
assure completion of all mitigation work, required reporting and monitoring, and any remedial
work required pursuant to this MBI. {Describe the definitive arrangement for financial
assurances. The preferred method is to arrive at an estimate of the cost of doing the
mitigation work, including costs for land acquisition, planning and engineering, legal fees,
mobilization, construction, and monitoring. Financial assurances may be in the form of
performance bonds, irrevocable trusts, letters of credit, casualty insurance, escrow
accounts, legislatively enacted dedicated funds for government-operated banks, or other
appropriate instruments in that amount for that purpose. Such considerations include, but
are not limited to, site design; topographic and boundary surveys; purchase, installation
and maintenance of hydrology monitoring devices; sediment and erosion control; grading
including stream channel and structure repair; re-grading contingency (+30% of grading
cost); planting; replanting contingency (+30% of planting cost); control and/or eradication
(Version June 2009)
of undesirable plant species; control of herbivory; measures to control access and human
impacts; As-Built surveys; monitoring requirements; land acquisition and/or easement
acquisition and preparation costs; and Corps administrative expenses (10% of estimated
costs), for each credit released for sale.}
B. Financial assurances shall be payable at the direction of the DE to his designee or to a
standby trust. Financial assurances structured to provide funds to the Corps of Engineers in the
event of default by the Bank Sponsor are not acceptable.
C. 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: Long-Term Protection
A. {Describe the legal mechanism, financing mechanism, and the party responsible for
long-term protection of the site. The long-term protection must be in the form of a
conservation easement (CE) to an acceptable third party. Grantees of the CE shall be
approved by the DE. The final executed CE must be reviewed and approved by the
Wilmington District's Office of Counsel in advance of, or concurrent with, the activity
causing the authorized impacts and prior to credit release. Upon written approval by the
Corps Office of Counsel, the CE will be recorded in the land records at the Office of the
Clerk of the Superior Court in the county in which the land lies. A copy of the recorded
CE, showing book and page numbers of the recorded location, shall be provided to Office
of Counsel.) The Sponsor shall grant a CE, in form acceptable to the IRT, sufficient to protect
the Bank site 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 functions described in the 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
preservation mechanism.
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. The Sponsor is responsible for ensuring that that the CE is re-recorded to
ensure 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 CE.
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
9
(Version June 2009)
other legal claims over, the project site.
Section XI: Long-term Management
A. The Sponsor shall implement the long-term management plan, if required, described in the
Mitigation Plan by (time frame).
B. The long-term management plan will provide financing mechanisms as necessary to provide
for any long-term maintenance identified in the long-term management plan.
Section XII: Default and Closure
A. It is agreed to establish and/or maintain the Bank site 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
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 close out the bank site to the DE. 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
10
(Version June 2009)
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. Any agency participant may terminate its participation in the IRT with notice in writing to all
other parties to this agreement. Termination shall be effective seven (7) days from placing
written notices in the United States mail. Member withdrawal shall not affect any prior sale of
credits and all remaining parties shall continue to implement and enforce the terms of this MBI.
B. Modification of this MBI shall be in accordance with the procedures set forth in 332.8 of the
mitigation rule.
C. 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.
D. This MBI constitutes the entire agreement between the parties concerning the subject matter
hereof and supersedes all prior agreements or undertakings.
E. In the event any one or more of the provisions contained in this MBI are held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceablility will not
affect any other provisions hereof, and this MBI shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein.
F. This MBI shall be governed by and construed in accordance with the laws of North Carolina
and the United States as appropriate.
G. This MBI 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.
H. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of the
parties hereto and their respective successors.
1. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below.
Sponsor:
Name
Title
Address
Corps:
Mr./Ms.
U.S. Army Corps of Engineers
II
(Version June 2009)
Regulatory Division
Address
EPA:
Mr./Ms.
Wetlands Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
FWS:
Mr./Ms.
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
NMFS:
Mr./Ms.
National Marine Fisheries, NOAA
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
NRCS:
Mr./Mrs.
Natural Resources Conservation Service
*Address
NCWRC:
Mr./Ms. *
North Carolina Wildlife Resources Commission
*Address
NCDCM:
Mr./Ms. *
North Carolina Division of Coastal Management
North Carolina Department of Environment and
Natural Resources
*Address
NCDWQ:
Mr./Ms. *
12
(Version June 2009)
Division of Water Quality
North Carolina Department of Environment and
Natural Resources
Post Office Box 29535
Raleigh, NC 27626-0535
13
(Version June 2009)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The * Mitigation Bank In * County, North Carolina":
Sponsor:
By:
Date:
U.S. Army Corps of Engineers:
By: Date:
14
(Version June 2009)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The * Mitigation Bank In * County, North Carolina":
U.S. Environmental Protection Agency:
By: Date:
U.S. Fish and Wildlife Service:
By: Date:
National Marine Fisheries Service:
By: Date:
N.C. Division of Water Quality:
By: Date:
N.C. Wildlife Resources Commission:
By: Date:
N.C. Division of Coastal Management:
By: Date:
15
(Version June 2009)
List of Appendices
Appendix A: (Name of Bank) Final Mitigation Plan
Appendix B: Property Survey and Legal Description
Appendix C: Map - Geographic Service Area
Appendix D: Construction Costs
Appendix E: Maintenance and Monitoring Costs
Appendix F: Form of Financial Assurance
Appendix G: Form of Preservation Mechanism
16