20040325 Ver 1_Complete File_19971006

ENVIRONMENTAL SERVICES, INC.
1100 WAKE FOREST ROAD, SUITE 200
RALEIGH, NORTH CAROLINA 27604
[phone] FAX [phone]
MEMORANDUM
TO: Mr. Scott McLendon, U.S. Army Corps of Engineers
Ms. Kathy Matthews, U. S. Environmental Protection Agency
Mr. Kevin Moody, U.S. Fish and Wildlife Service
Mr. John Dorney, N.C. Division of Water Quality
Mr. Bennett Wynne, N.C. Wildlife Resources Commission
FROM: Jerry McCrain O?? //l K"w"-
DATE: October 6, 1997
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RE: Cape Fear Regional Mitigation Bank, Barra Farms MBRT meeting
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I would like to thank all of you for taking the time to participate in the Mitigation Banking Review
Team meeting on Thursday, October 9, 1997 for the proposed Cape Fear Regional Mitigation Bank,
Barra Farms, Cumberland County, N.C. We are scheduled to begin at 10:00 a.m. at the office of
Environmental Services, Inc. in Raleigh (map enclosed).
We are enclosing information pertinent to this meeting for your review. Included you will find: 1)
a Draft Mitigation Banking Instrument; 2) a summary of proposed mitigation ratios and credits for
the Barra Farms site; and 3) a map of the proposed service area for the bank. Financial assurance
documentation will be provided to you at the meeting. Copies of the draft mitigation plan were
provided to all agencies in May, 1997; additional copies will be available at the meeting, or we can
provide you with a copy prior to the meeting should you so desire.
Our planning team is excited about moving forward with the Cape Fear Regional Mitigation Bank.
Your advice will be greatly appreciated, and your input is considered crucial to allow us to complete
our documentation and planning process.
Please call me if you have any questions, and I look forward to seeing you on the 9th.
cc: Dr. Alan Fickett, Ecosystems Land Mitigation Bank Corp

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DRAFT MITIGATION BANKING INSTRUMENT
AGREEMENT TO ESTABLISH THE
CAPE FEAR REGIONAL MITIGATION BANK
IN CUMBERLAND COUNTY, NORTH CAROLINA
ECOSYSTEMS LAND MITIGATION BANK CORPORATION
6200 Falls of Neuse Road
Raleigh, North Carolina 27609
October 1997
DRAFT MITIGATION BANKING INSTRUMENT
AGREEMENT TO ESTABLISH THE
CAPE FEAR REGIONAL MITIGATION BANK
IN CUMBERLAND COUNTY, NORTH CAROLINA
This agreement made and entered into on the day of , 199_, by Ecosystems
Land Mitigation Bank Corporation, hereinafter Sponsor, and the U.S. Army Corps of Engineers
(Corps), 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, and the North
Carolina Division of Water Quality (NCDWQ), hereinafter collectively referred to as the
Mitigation Bank Review Team (MBRT).
WHEREAS the purpose of this Agreement is to establish a mitigation bank for the purpose
of providing compensatory mitigation for unavoidable wetland impacts authorized by Clean
Water Act permits in appropriate circumstances; and
WHEREAS the Sponsor is the record owner of that certain parcel of land containing
approximately 623 acres located in Cumberland County, North Carolina described in the Barra
Farms/Harrison Creek Cape Fear Regional Mitigation Bank Wetlands Mitigation Plan (Mitigation
Plan), and as shown on the attached survey. Both the survey and the Mitigation Plan are
attached hereto and incorporated herein by reference; and
1
WHEREAS the agencies comprising the Mitigation Bank Review Team 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 functions at the Bank Site;
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 agreement.
General Provisions
1. The goal of the mitigation bank is to restore and enhance riverine and nonriverine
wetland systems and their functions and values to compensate in appropriate circumstances
for unavoidable wetland impacts authorized by Clean Water Act permits in circumstances
deemed appropriate by the Corps after consultation with members of the MBRT.
2. 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, and the National Environmental Policy
Act, and all other applicable Federal and State legislation, rules, and regulations. This
agreement has been drafted following the guidelines set forth in the proposed "Federal
Guidance for the Establishment, Use, and Operation of Mitigation Banks," 60 Fed. Rea. 58605,
November 28, 1995 (Guidance).
3. The MBRT shall be chaired by the representative from the U. S. Army Corps of
Engineers, Wilmington District. The MBRT shall review monitoring and accounting reports
2
more fully described in paragraphs 10 and 20 below. In addition, the MBRT will review
proposals for remedial actions proposed by the Sponsor, or any of the agencies represented
on the MBRT. The MBRT's role and responsibilities are more fully set forth in Sections II.C.
3 & 6 of the Guidance. The MBRT will work to reach consensus on its actions.
4. The Corps, after consultation with the appropriate Federal and State review agencies,
shall make all final decisions concerning the amount and type of compensatory mitigation to
e required for unavoidable, permitted wetland impacts, and whether or not the use of credits
rom the Bank is appropriate to offset those impacts.
5. The parties to this agreement understand that, where practicable, on-site, in-kind
compensatory mitigation is preferred, unless use of the Bank is determined by the Corps to be
environmentally preferable or determined by the Corps that on-site mitigation opportunities are
not available.
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Mitigation Plan
6. The Bank Site is composed of approximately 623 acres (ac) of interstream flats, former
Carolina Bays, and historic stream origins which have been ditched and drained to support
agricultural and silvicultural activities. This site offers opportunities for nonriverine and riverine
(stream) wetland restoration and enhancement. In addition, surrounding areas within the

former wetland complex are available for expansion of the Bank Site which can be phased over
a period of time. A more detailed description of the baseline conditions on the site is
contained in the Mitigation Plan.
3
7. The Sponsor will perform work described on pages -29-36-of-the Mitigation Plan,
including hydrologic and soil modifications and plantings. The purpose of the work, and the
objective of the Bank, is to restore 372 acres of disturbed and drained former wetlands
to
rivenne and nonriverine wetlands, and to enhance 251 acres of disturbed wetlands.
8. The Sponsor shall monitor the Bank Site as described on page 36 of the Mitigation
Plan, until such time as the MBRT determines that the performance criteria described on pages
36-37 of the Mitigation Plan have been met.
9. The Sponsor is responsible for assuring the success of the restoration and
enhancement activities at the Bank Site, and for the overall operation and management of the
Bank.
10. The Sponsor shall provide the reports described in paragraph 20 and on page 37 of
the Mitigation Plan to each member of the MBRT.
11. The Corps shall review said reports, and may, at any time, after consultation with the
Sponsor and the MBRT, direct the Sponsor to take remedial action at the Bank Site. Remedial
action required by the Corps shall be designed to achieve the performance criteria specified
in paragraph 8, above. All remedial actions required under this paragraph shall include a
schedule, which shall take into account physical and climatic conditions.
12. The Sponsor shall implement any remedial measures required pursuant to paragraph
1 1, above.
4
13. In the event the Sponsor determines that remedial action may be necessary to
achieve the required performance criteria, it shall provide notice of such proposed remedial
action to all members of the MBRT. No remedial actions shall be taken without the
concurrence of the Corps, in consultation with the MBRT.
Use of Mitigation Credits
14. The Geographic Service Area (GSA) is the designated area wherein a bank can
reasonably be expected to provide appropriate compensation for impacts to similar wetland
and/or other aquatic resources. The geomorphic setting of the Bank includes nonriverine flats,
nonriverine depressions, and riverine, low order blackwater streams within the Coastal Plain
region of the Cape Fear River Basin. The Bank is located in proximity to, or on the boundary
between three Hydrophysiographic Cataloging Units within the inner Coastal Plan region of the
river basin: 03030004, 03030005, 03030006 as depicted on the attached map (Exhibit A).
These Cataloging Units support similar Coas al Plain natural communities, wetlands, and drain
into the lower Cape Fear River. Therefore, th roposed GSA includes the area depicted in the
attached figure which encompasses the above isted Cataloging Units.
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15. The Mitigation Plan is intended to result in the forms and amounts, in acres, of
compensatory mitigation depicted in Exhibit B.
16. Successful implementation of the Mitigation Plan will result in the creation of 232
riverine and nonriverine mitigation credits based upon EPA draft guidance. Mitigation credits
5
generated by the Bank may be amended during detailed mitigation planning (as described in
Exhibit B).
17. It is anticipated by the parties to this Agreement that use of mitigation credits shall
be "in-kind;" that is that riverine and nonriverine credits will be used to offset riverine and
nonriverine impacts.
18. It is anticipated by the parties to this agreement that in most cases in which the
Corps, after consultation with members of the MBRT, has determined that mitigation credits
from the bank may be used to offset wetland impacts authorized by Department of the Army
permits, for every acre of impacts, one credit will be debited from the Bank. Deviations from
the one to one compensation ratio will be based on considerations of value of the wetlands
impacted, the severity of the impacts to wetlands, whether this compensatory mitigation is
in-kind, and physical proximity of the wetland impacts to the Bank Site.
19. Notwithstanding paragraphs 17 and 18 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 the
Corps, pursuant to the Clean Water Act, and implementing regulations and guidance, after
notice of any proposed use of the Bank to the members of the MBRT, and consultation with
the members of the MBRT concerning such use.
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20. Credit Release Schedule:
The credit release schedule for the Bank will be based upon successful completion of the
following phases:
Phase 1: Phase 1 entails completion of detailed mitigation planning, submittal of
plan parameters to the MBRT, review of plan parameters by the MBRT, and signing of the MBI.
Upon completion of Phase I; 20% of the total Bank credits would be released.
Phase 2: In Phase 2, acquisition, protective covenants, and bonds on the property
will be obtained. Road accesses to mitigation areas will be gated and monitored to prevent
disturbances such as dumping activity or timber harvest. Protective covenants will stipulate
the maintenance of these mitigation areas in perpetuity at or succeeding toward six hardwood
trees per acre greater than 20 inches in diameter (on each acre of land area). Cleaning or
restoring of ditches in the mitigation area will be prohibited. A memorandum documenting
completion of Phase 2 will be submitted to the MBRT. Upon completion of Phase 2,, 0°/of
the total Bank credits would be released (40% cumulative).
Phase 3: Phase 3 includes site preparation and planting of interior wetland areas ?- o
(away from ditches, spoil, roads, ephemeral pool sites, and stream reconstruction corridors).
Subsequently, stream reconstruction and ephemeral pool construction will be completed and
ditch flows diverted into the restored floodplain where planned. The stream corridor(s) will be
allowed to stabilize with reduced flows before ditch back-filling is performed (3-6 months
during the growing season). A memorandum documenting completion of Phase 3 will be
submitted to the MBRT. Completion of Phase 3 would release r20 o of the total Bank credits
(60% cumulative).
Phase 4: Phase 4 involves back-filling of ditches, spoil/road removal and
installation of impermeable ditch plugs. Subsequently, the stream reconstruction corridor(s),

backfilled ditches, ephemeral pools, spoil removal areas and any other areas of the site will be
prepared and planted. As built construction plans will be submitted to the MBRT documenting
completion of Phase 4. Upon completion of Phase 4, 20% of the total Bank credits would be
released (80% c ulative). o
Phase 5: Phase 5 involves establishment of the monitoring plan and submittal of
annual reports to the MBRT. Proposed Bank credit releases comprise 10% of the total Bank
credits after three years of monitoring if success criteria have been fulfilled for each of the
preceding three years (90% cumulative). The remaining 10% of total Bank credits would be
released upon completion of the five year monitoring period, submittal of the final monitoring
plan, fulfillment of success criteria, and provisions for dispensation/long term management of
the property (100% cumulative).
21. The Sponsor shall develop accounting procedures for maintaining accurate records
of debits made from the bank, acceptable to the MBRT. Such procedures shall include the
generation of a report by the Sponsor showing credits used at the time they are debited from
the bank, which the Sponsor shall provide within 30 days of the debit to each member of the
MBRT. In addition, the Sponsor shall prepare an annual report on each anniversary of the date
of execution of this agreement, showing all credits used, and the balance of credits remaining,
to each member of the MBRT, until such time as all of the credits have been utilized, or this
agreement is otherwise terminated. All reports will identify credits debited and remaining by
type of credit (e.g., nonriverine forested wetland), and shall include for each reported debit the
Corps Action ID number for the permit for which the credits were used. Exhibit C comprises
a sample mast ?r credit ledger which will be used to track and report Bank debits.
4 8
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Property Disposition
22. Ownership of the Bank will reside with the Sponsor who intends to provide fee simple
transfer of the property to the appropriate land management organization as determined by the
MBRT. Fee simple transfer will occur upon completion of debiting of the Bank or the end of
the monitoring period, which ever is longer. The transferee will be responsible for maintaining
the Bank in accordance with a Conservation Easement placed on the Bank Site for perpetual
protection as described in the Mitigation Plan.
Financial Assurances
23. The Sponsor is responsible for securing adequate construction and performance bonds
as a form of financial assurance to cover contingency actions in the event of Bank default or
failure. The Sponsor is responsible for funding to construct, monitor, and maintain the Bank
throughout its operational life, as well as beyond the operational life if not self-sustaining.
Financial Assurance Documents to meet financial assurance commitments will be attached.
A separate long-term funding commitment will be provided for long-term maintenance,
contingency, and remedial actions.
Miscellaneous
24. 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:
Alan G. Fickett, Ph.D.
Ecosystems Land Mitigation Bank Corporation
6200 Falls of Neuse Rd.
Raleigh, NC 27609
Corps:
Scott McLendon
U. S. Army Corps of Engineers
Post Office Box 1890
Washington, NC 27889-1000
EPA:
Kathy Matthews
Environmental Protection Agency
Atlanta Federal Center
61 Forsythe St.
Atlanta, GA 30303
FWS:
Mr. Kevin Moody
U. S. Fish and Wildlife Service
P.O. Box 3326
Raleigh, NC 27636
NCWRC:
Mr. Bennett Wynne
North Carolina Wildlife Resources Commission
901 Laroque Ave.
Kinston, NC 28501
NCDWQ:
Mr. John Dorney
North Carolina Division of Water Quality
P.O. Box 29535
Raleigh, NC 27626-0535
25. This agreement may be amended with the written consent of all the parties.
10

IN WITNESS WHEREOF, the parties hereto have executed this Agreement for the Barra
Farms/Harrison Creek Cape Fear Regional Mitigation Bank.
Mr. Scott McLendon
U.S. Army Corps of Engineers
Kevin Moody
U. S. Fish and Wildlife Service
Kathy Matthews
Environmental Protection Agency
Mr. John Dorney
North Carolina Division of Water Quality
Mr. Bennett Wynne Alan G. Fickett, Ph.D.
North Carolina Wildlife Resources Comm. Ecosystems Land Mitigation Bank Corp.
11
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EXHIBIT B
DRAFT MITIGATION CREDIT
CAPE FEAR REGIONAL MITIGATION BANK
Mitigation Design Unit' Area Potential Potential
(acres) Mitigation Credit Ratio' Replacement
EPA Guidelines Credit
(Page and Wilcher 1990) (acre credits)
Riverine Wetland Restoration 18 2:1 9
Nonriverine Wetland Restoration 325 2:1 163
Upland/Wetland Ecotone Restoration 29 -----2 ----- 2
Nonriverine Wetland Enhancement' 237 4:1 60
Wetland Drainage Buffers 14 -----4 ---- 4
TOTAL 623 2.69:1 232
1: Mitigation credit ratios denote mitigation acres : impact acres. Mitigation design units are
described and depicted in the Mitigation Plan.
2: Restoration of upland ecotones and wetland buffers may generate reduced credit ratios
for wetland restoration in the Bank Site. Because these areas represent approximately 5
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percent .of--# a Bank, mitigation ratios in restored wetland areas may warrant a reduction
p to 1.93 : 1 to reflect wetland functional benefits resulting from upland buffers, ecotones,
andstreamside management zones (SMZs) (ESI 1994a). Wetland functional benefits
resulting from wetland buffer restoration will be determined upon completion of detailed
mitigation planning.
3: Portions of the area designated as wetland enhancement, primarily surrounding the
historic stream, may not support wetland hydrology under existing conditions. If so,
wetland restoration potential is applicable in this area. The extent of jurisdictional
wetlands in enhancement (forested) areas will be verified by the U.S. Army Corps of
Engineers and incorporated into the mitigation design units during development of
detailed mitigation planning.
4: Wetland Drainage Buffers may be required along surface inlets extending into the Bank
Site to accommodate off-site drainage. These drainage systems would remove wetland
hydrology from corridors adjacent to the structure but may enhance interior wetland
function through water quality benefits. The actual area of drainage will be estimated
during wetland hydrological analyses.
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