20181097 Ver 1_Intent to Approve (SAW-2017-00608)_20201202

Strickland, Bev
From:
Kichefski, Steven L CIV USARMY CESAW (USA) <[e-mail]>
Sent:
Wednesday, December 2, 2020 11:21 PM
To:
Davis, Erin B; Munzer, Olivia; Wilson, Travis W.; Bowers, Todd; Hamstead, Byron A;
Gledhill-earley, Renee; Tugwell, Todd J CIV USARMY CESAW (US); Kim Browning;
Jones, M Scott (Scott) CIV USARMY CESAW (USA); Haywood, Casey M CIV (USA);
McLendon, C S CIV USARMY CESAW (USA); Smith, Ronnie D CIV USARMY CESAW
(USA)
Cc:
Bradley Breslow; Katie Webber
Subject:
[External] Intent to Approve the RES Catawba UMB: Dogtown Mitigation Site
(SAW-2017-00608)
Attachments:
SAW-2017-00608_RESCatawbaUMB-Dogtown-CommentResponses_15Nov2019.pdf;
SAW-2017-00608_RESCatawbaUM B- Dogtown -Cove rLetterWRevisions_4Sept202O.pdf,
RES Catawba UMBI Draft 9-2020.docx
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Good Evening,
Attached are the response to comments for the RES Catawba UMB: Dogtown Draft Mitigation Plan (SAW-
2017-00608) dated November 15, 2019 and the revised Instrument Template received via email on
September 11, 2020. I've also attached a cover letter, dated September 4, 2020, describing some revisions to
the project since the draft plan responses were received (changes to CE, crossings and resulting credits) .
These three documents and the revised final mitigation plan dated September 2020 have been uploaded to
the RES Catawba UMB: Dogtown Mitigation Site bank folder in RIBITS (see the link below). Feel free to contact
me with any questions or if you are unable to access the file.
https:Hurldefense.com/v3/_https://ribits.ops.usace.army.mil/ords/f?p=107:278:4009876100913::NO:RP,27
8:P278_BANK _ID:4581_;! !HYmSToo!Kk1B5kQhciMdEvyPdCf-BlzoomABwk8M9gZK-
M L08eLYebgCONfQvemS50eShX4-y5A$
We have evaluated the comments generated during the review period for the Draft Mitigation Plan, as well as,
the updated instrument/final mitigation plan/cover page, and determined that all issues have been
adequately addressed. Accordingly, it is our intent to approve the RES Catawba UMB: Dogtown Mitigation Site
unless a member of the NCIRT initiates the Dispute Resolution Process, as described in the Final Mitigation
Rule (33 CFR Section 332.8(e)). Please note that initiation of this process requires that a senior official of the
agency objecting to the approval of the mitigation plan (instrument modification) notify the District Engineer
by letter within 15 days of this email (by COB on December 17, 2020). Please notify me if you intend to initiate
the Dispute Resolution Process.

Provided that we do not receive any objections, we will provide approval to RES at the conclusion of the 15-
day Dispute Resolution window. The RES Catawba UMB Instrument is attached for your agency's signature
after the final plan is approved.
Thank you for your participation.
Regards,
Steve Kichefski
Regulatory Project Manager
U.S. Army Corps of Engineers
Wilmington District, Asheville Field Office
151 Patton Avenue, Suite 208
Asheville, NC 28801
(828)-271-7980 Ext. 4234
The Wilmington District is committed to providing the highest level of support to the public. To help us ensure
we continue to do so, please complete the Customer Satisfaction Survey located at our website at
https://urldefense.com/v3/_http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0_; ! ! HYmSToo! KkIB5kQ
hciMdEvyPdCf-BlzoomABwk8M9gZK-ML08eLYebgCONfQvemS50eSBIHwTR4$ to complete the survey online.

MEMORANDUM Ores
3600 Glenwood Avenue Suite 100 Raleigh, North Carolina 27612 919.209.1052 tel. [phone] fax
TO: Steve Kichefski
FROM: Katie Webber — RES
Brad Breslow — RES
DATE: September 4, 2020
RE: Revised Submission for Dogtown Stream Mitigation Project Final Mitigation Plan
USACE Action ID #SAW-2017-00608
Dear Mr. Kichefski:
Per our conversation on June 11, 2020, RES is pleased to submit a revised Mitigation Plan adjusted to account
for the removal of an easement break on Bakers Creek where we plan to remove a failing bridge. This change
increased stream crediting associated with the project in total stream length and through adjustments per the
use of the Non -Standard Buffer Width Tool.
Since we last spoke, several additional necessary changes have arisen on the project. First, we received the
results of title research from our surveyor in preparation to close our easement which informed us that the
powerline easement right-of-way which bisects the Southern portion of our project is only 128 feet wide, instead
of the previously -understood 175 feet. Therefore, we were able to reduce the easement break on DT-1 and DT-
3. We had already designed stream work under the powerlines to be conducted without crediting because it was
good for the overall project, so this change does not affect our design plans, Nationwide #27 PCN request for
authorization, or any other components of the project. This change also increased stream crediting associated
with the project in total stream length and through adjustments per the use of the Non -Standard Buffer Width
Tool.
Secondly, as a result of removing the crossing on Bakers Creek, we added a designed ford crossing further north
on Bakers Creek outside of the easement limit. This did not impact the size of our existing conservation
easement because the above -mentioned right of way was smaller than previously anticipated. This change will
result in one additional stream impact of approximately 25 linear feet of stream channel. All necessary permits
including CWA 404/401 and FEMA will be obtained on this additional feature. Plan designs have been updated
to include this crossing.
Finally, we added one 60 foot -wide easement break along the easternmost edge of the southern portion of the
project. This easement break is being added to facilitate future access to the eastern portion of the project but is
not going to be used as a principal access point. The ford on Bakers Creek will be the main entrance to the
southeastern side of the project.
In total, the above changes resulted in an increase of 157.818 stream credits from 8,498 to 8,771.974. To support
your review and approval of this change, we have provided a revised mitigation plan with red text that shows
any changes from the original plan.
Thank you for accommodating this adjustment and we look forward to your review. Do not hesitate to contact
me at kwebber(cr�,res.us or by phone at 410-279-5741.

Sincerely,
Katie Webber, LPSS, CPSS
Project Manager

MEMORANDUM pres
302 Jefferson Street, Suite 110 Raleigh, North Carolina 27605 919.209.1052 tel. [phone] fax
TO: NCIRT and NCDMS
FROM: Katie Webber — RES
Brad Breslow — RES
DATE: November 15, 2019
RE: Response to Dogtown Stream Mitigation Project NCIRT Comments during 30-day
Mitigation Plan Review
USACE Action ID #SAW-2017-00608
General RES Comments:
Based on feedback from the IRT, RES has updated the approaches on DT2, DT4, and S 1-B. RES split DT2 into
two reaches, DT2-A and DT2-B, each with several distinct mitigation approaches. The downstream portion of
DT4 was removed from crediting because RES did not control both stream banks in this reach. Finally, S 1-B
was reduced to Enhancement III due to limited functional uplift associated with the depth of the channel.
Mac Haupt, NCDWR:
1. In the future, DWR would like it mentioned in the Executive Summary and in one of the first sections
if there are any other conservation easement components or credits that is associated with another
program. For example, Figures 10a and 10b shows riparian buffer associated with a separate
conservation easement, which is probably associated with the Duke Coal Ash settlement program.
A statement in the executive summary and in Section 1.1 has been updated to be clarify this project's
relationship with the existing water quality improvement project that it abuts. There is an adjacent, but
unrelated, water quality improvement project in the vicinity of the Dogtown Stream Restoration Project
that will provide continuity of protection along the main stem of Bakers Creek.
2. Table 2- it appears that RES or one of its entities owns the parcels where the project is being developed.
The plan later states (Section 3.3) that the area outside the project area would likely remain in
agricultural use. DWR believes it is important to structure the design as to future watershed
development. An agricultural watershed would lead to one set of BMPs while development of
subdivisions might suggest different BMPs. Which of these scenarios does RES believe is most likely
to evolve and what allowances have been included into the design to account for these possible
scenarios?
RES anticipates the watershed will realize increased urbanization in the future, however, the parcel area
outside the conservation easement will likely remain in agricultural use. RES has proposed a design
that will promote long-term stream stability for this anticipated watershed condition by restoring
floodplain connection, re-establishing and protecting wide, vegetated buffers, and installing grade
control structures. There is limited opportunity for BMPs on this project because most reaches enter
the project limits as intermittent or perennial steams.

3. Please provide a map of the locations of the cross sections for the existing conditions.
A cross section location map has been created and is located in Appendix B.
4. Section 6.2- DWR is concerned with the proposed design of reach S 1-B. Table 6 shows reach S 1-B
having a BHR of 3.9. While the design sheet (S 17) shows this reach's top of bank to be an average of
6-8 feet above the thalweg. This reach is proposed as E2. The functional uplift of planting would be
greatly reduced for this channel as opposed to S1-A. DWR requests that RES reconsider the design of
this 400 foot reach.
The updated Dogtown prospectus had proposed restoration further downstream than it is currently;
however, after walking the reach and doing more reconnaissance, it made more sense from a
construction perspective to stop the proposed work at the existing ford. RES realizes the functional
uplift in this portion of the reach is low as designed, so we have adjusted the treatment type below the
ford from EII to EIII at a ratio of 7.5:1.
5. Section 6.2 — Sediment Supply- DWR questions whether reaches S1-A and B and DT3 are threshold
channels. Given the drainage area, it would seem these channel may likely have more alluvial
characteristics. Please explain why RES believes these reaches are more threshold -like with regard to
sediment supply (in addition to the verbiage provided in the mitigation plan).
The reaches in question contain few depositional features leading RES to believe that sediment loading
is at or below the existing reach sediment transport capacity. The proposed reaches were designed with
a competency above the existing bed material. Although the transport capacity will be reduced by
reconnecting the channel to its floodplain the sediment loading from bed and banks within the project
should also be significantly reduced by buffer planting, livestock exclusion, and stream stabilization
activities. Based on these observations and design criteria, RES does not anticipate a sediment supply
large enough to promote a dynamic alluvial channel. RES does anticipate deposition during backwater
events from Bakers Creek but expects this deposition to be transported through the reaches in a
relatively short timeframe after backwater subsides.
6. From the design sheets (S2) it appears RES is removing the middle pond and building a channel through
to connect to the two other pond reaches. DWR likes this approach. Please verify that RES intends to
build channel to connect the upper and lower ponds. In addition, the design sheets also stream work
through the large powerline crossings. DWR also likes this approach.
RES has breached all three ponds and intends to build a channel through all three pond bottoms.
Existing contours shown on plans now reflect the breached condition.
7. Design sheet S5 shows reach DT2 as Enhancement 1. However, virtually no work is being performed
except for at the end of the reach. DWR suggest that this reach be a different ratio, and should likely be
measuring credit through valley length versus stream centerline since it appears no definitive stream
channel may exist.
In response, we reviewed the DT2 design and generally agreed that a blanket Enhancement I crediting
approach was not justified. We decided to split DT2 into A and B reaches to allow for a more detailed
crediting approach. Reach DT2-A (Plan Sheet S5), will be the reach originally named DT2, and DT2-
B (Plan Sheet S6) will be the reach that originates in the power easement.
The work proposed in the upstream section of DT2-A is outside of the jurisdictional limits of the
existing stream, and the majority of proposed work in DT2-B will occur within an existing power line
easement. Therefore, no credit will be received for these areas despite the work we propose. To
compensate for this work, we are proposing to receive Enhancement II credit (2.5:1) for the length of
the reach between the upstream and downstream restoration areas on the DT2-A reach. We expect that

the work proposed on the headwaters of both reaches will reduce the sediment load in DT2-A bringing
it closer to an equilibrium with sediment transport capacity.
We are now claiming restoration on the downstream portion of DT2-A where we are plugging the
diversion channel and restoring flow through the valley into the existing pond bottom. This approach
will improve the sediment transport capacity of DT2-A which will promote stable channel dynamics
upstream of the proposed restoration.
8. Design sheet S6- shows a steep slope with no structure to assist with slowing erosion. Please explain
how grading alone will arrest this erosion?
RES has modified the design in this area to incorporate structures. The structures will start above the
conservation easement to arrest concentrated flow, and will step water down to the existing bed of DT2-
A.
9. For the lower reach of DT3 DWR would like to know the width of the floodplain (bench) that will be
provided.
Proposed contours have been added to the plansheet and show the floodplain bench widths. The
floodplain at the confluence of DT 1 and DT3 is 90 feet wide.
10. The Waters of the US Map shows a wetland feature WF that seems to show some potential for wetland
restoration. Since RES or its entities owns the entire parcel, and the soils have the potential to include
wetland areas, has RES considered pursing any wetland restoration/credit given the constant need in
Catawba 0 1 ?
RES had considered including a wetland component as part of this Project. In June of 2016, RES hired
a Licensed Soil Scientist (LSS) to survey the site for wetland restoration potential. Soil survey findings
included that the floodplain has soils that are generally moderately well to well drained sandy loam and
lack hydric indicators within the upper 12-inches of the soil surface. Therefore, the LSS concluded that
the Project to be lacking appropriate soil conditions for wetland restoration or mitigation. We have
relied on his work in making our determination to not pursue wetland restoration potential onsite.
11. After examining Design Sheet 521, DWR believes a more appropriate ratio for reach S3-A would be
at least E2 (2.5:1).
The design will remain the same, but the treatment has been revised to Enhancement II at a 2.5:1 ratio.
Section 6.2 and Table 15 have been updated to reflect this change.
Todd Tugwell & Steve Kichefski, USAGE:
1. Recommend that the planting list of tree species (Table 13) be revised to reduce the amount of Green
Ash to no more than 5% due to the impending impacts from the Emerald ash borer.
Green ash has been replaced by water oak on the planting list.
2. Recommend the addition of other live stake species to reduce the percent of black willow used as live
stakes (currently 60%).
Black willow was reduced to 40%, cottonwood to 30%, and elderberry was added at 30%.
3. Section 3.4 (p6&7) - Consultation with the Cherokee Nation and UKB, both federally recognized tribes,
will be needed prior to finalizing/permitting this bank. The Corps will complete this action. Also, what
portions of the project site were determined to have suitable habitat for dwarf -flowered heartleaf and
Schweinitz's sunflower? Provide brief summary of staff experience in surveying for those two species
and why an April 12th survey date, which is outside the typical late August -early October survey

window, was suitable for surveying for this species. Brief additional information will be needed for
NWP27 permit issuance regarding the NLEB.
In response to the comment, RES revisited the Project to survey for Schweinitz's sunflower on October
7, 2019 during the recommended survey window of late August to October. Suitable habitat for
Schweinitz's sunflower was very limited on -site as most disturbed field edges on -site were within
riparian areas and tended to be wetter than the habitat preferred by the sunflower. Lookalike species
including wing stem, Jerusalem artichoke, and New York ironweed were observed; however, no
individuals of the surveyed plant were observed. During the April 12, 2017 survey, suitable habitat for
the dwarf -flowered heartleaf was found along slopes on the project streams; however, no individuals
were observed.
RES staff that perform species surveys have previous experience in the identification, documentation,
and mapping of threatened and endangered species, or are led by a staff member with previous
experience. Prior to conducting the surveys, staff reviewed key characteristics of the species as well as
keys for field identification, and also reviewed lookalike species to limit mis-identification.
RES consulted with the USFWS IPAC (October 9, 2019) key in regard to the NLEB, where a "May
Affect" determination was given. Approximately 3 acres of trees will be cleared to support this project
in construction. Over 30 acres will be planted. Documentation is included in Appendix G. RES will
provide any necessary information as required.
4. Section 6.3 (p30) -Depending on the species and density, treatment of invasive species maybe required
within the project area, not just within the limits of grading as stated.
Clarification has been added into Section 6.3 in regard to invasive species treatment within the project
area.
5. Under Performance Standards on Page 34, surface flow for streams states that it will be monitored to
document "intermittent or seasonal surface flow". Please note that channels that are not intermittent,
jurisdictional channels will not receive stream credit, regardless of the presence of seasonal surface
flow.
Clarification has been added to Section 7.1. RES understands that jurisdictional channels that do not at
a minimum meet an intermittent flow regime will not receive credits, regardless of flow.
6. The inclusion of station numbers on the proposed mitigation credit Table 14 is appreciated.
Station numbers have been added into Table 14. Table 14 has been renumbered Table 15 due to a
table addition in the plan.
7. The draft plan mentions livestock exclusion or addressing livestock access in several locations, however
no mention of fencing to be installed. To clarify, will any fencing be utilized or just removal of livestock
from the adjacent property. Verify if all old fencing be removed from the CE?
Future land use plans for the Property are not yet determined; however, the land is likely to remain in
agriculture for the foreseeable future. If livestock remain on any portion of the Property such that would
otherwise allow access to the Conservation Easement Areas, adequate livestock fencing would be
installed to exclude them from the CE Areas. Any currently existing fencing will be removed and/or
relocated outside of the CE Areas.
8. Section 13 — Generally detail what items are included and their cost estimates for the maintenance and
contingency costs under the monitoring financial assurances estimate.
Table 19 has been updated to detail monitoring costs, and maintenance and contingency costs. Table
19 has been renumbered Table 20 due to a table addition in the plan.

9. In some areas, existing roads that lead to crossings that are proposed to remain go through proposed
easement areas. Please ensure that any existing roads be relocated outside easement boundaries.
Language was added to Section 4.2 to clarify the above as applicable. RES understands that any
existing farm roads that remain within the conservation easement will need to be permanently blocked
during construction and rerouted outside the easement boundaries.
10. Please update the map of proposed monitoring activities to include fixed photo plots.
Fixed image locations will exist at each cross section, each vegetation plot, and each stage recorder/flow
gauge. This has been added to the monitoring map (Figures 12a and 12b).
11. The maintenance plan included in Table 18 states that routine channel maintenance may be conducted
throughout the monitoring period. Please note that the IRT prefers that in -steam modifications to the
channel bed and banks and vegetation growing in the channel (other than live stake planting) not occur,
especially during the last few years of monitoring. This ensures that the IRT has an opportunity to
observe the true trajectory of the site without manipulation.
RES understands, and this detail has been added to Table 18. Table 18 has been renumbered to Table
19 due to the addition on a table in the plan.
12. In areas where wetlands will be disturbed by site work (e.g., Sta. 16+00 on trib DT 1-B), please ensure
that impacts have been minimized to the extent possible and that remaining impacts are accounted for
the in the permit application. Additionally, the mitigation plan needs to include a statement that explains
how impacted wetlands will be replaced on site by the project.
Wetland impacts associated with restoration and enhancement efforts will be both permanent and
temporary. Wetland impacts associated with the project are primarily located along the fringes of the
open water ponds that are being removed in order to support stream restoration. We anticipate wetlands
have a potential to re-establish within the floodplain(s) of the restored channels. RES has minimized
wetland impacts during the design process, and all impacts will be accounted for in the Nationwide
Permit 27 application. A sub -section has been added to Section 3.4 to discuss impacts associated with
the Project.
13. For reach DT 1-A & B, please expand on the discussion regarding how the streams within the pond beds
will be handled specifically with regard to existing sediments and removal of the dam (e.g., is the entire
dam proposed for removal? Will it be necessary to bring in new fill to construct the stream channel?)
Also, please specify that the pond beds will be replanted and with what species, if different from the
planting list. The Corps likes that channel restoration/dam removal will be completed even through
portions of the project outside the credit earning areas.
RES breached the three ponds during the summer of 2019 per the attached dam breach plans. The
breaches included removing the middle portion of the dams such that a minimum floodplain width that
satisfies Priority 2 requirements is maintained; a removal width equal to the beltwidth plus three times
the proposed channel width. Since the ponds have been drained and channels constructed through the
breaches to maintain positive drainage, RES does not anticipate removing a significant amount of
muck/sediment during construction. However, if during construction portions of the old pond bed are
still too wet to work in, the wet soil will be excavated, mixed with spoil obtained from the dam and
berm removals, and placed back within the pond bed at proposed grades.
The pond beds will be replanted as a part of the proposed work. Although the planting areas are not
differentiated across the site, our ecologists will provide verbal recommendations to our planting crew
in order to ensure species are adjusted to site circumstances.
Thank you for your feedback on the portions of the project outside the crediting areas.

14. Clarify the buffer width for the south side of DT4 in the proposed EII reach from Station 14+07 to
16+53 and the justification for the 2.5:1 credit sought for this reach.
The easement in this location abuts another parcel and cannot be adjusted. Upon review of this
comment, RES agrees with Corps and has removed this reach from crediting and re -run the non-
standard buffer width tool on this section to reflect the change. This has been removed from the plan
and the mitigation plan.
15. Additional small areas of planting may be needed outside planting areas depicted on the design sheets
P1/P2/M1/M2 such as gaps in vegetation such as around DT3-B and to the west of Bakers Creek South.
Please verify and/or update.
The planting area has been updated to include these areas. The planting area increased from 30.72 acres
to 32.4 acres.
16. Plan Sheet S 17 labels Reach S 1-B as EIII while Section 6.2, Table 14 and Figure 1 Oa Concept Map
North notes it as EII. Correct for consistency and detail why 2.5:1 ratio is justified considering no
channel work is done and only a portion of the buffer will be planted. Some of the buffer portion that
will be planted is part of additional credit being sought as part of the non-standard buffer width
calculation.
The updated Dogtown prospectus had proposed restoration further downstream than it is currently;
however, after walking the reach and doing more reconnaissance, it made more sense from a
construction perspective to stop the proposed work at the existing ford. RES realizes the functional
uplift in this portion of the reach is low, so we have adjusted the treatment type below the ford from
EII to EIII at a ratio of 7.5:1.
17. Detail why a 2.5:1 EII ratio is appropriate for the portion of Bakers Creek within the southern project
area, but north of the crossing (Station 46+85 to 59+30) and the southern EII portion of DT3,
considering no channel work or planting is to be done and a portion of that area is part of additional
credit being sought as part of the non-standard buffer width calculation.
This crediting scenario is based on riparian buffer plantings and cattle exclusion. Of the areas defined
above, at least 50% of the riparian areas of these reaches is being planted.
18. Review of the design sheet for reach S3-A does not seem to match the proposed activities described in
the mitigation approach. It appears that the bank will be laid back in three spots, brush toe installed in
two locations, and riffle enhancements in two areas, but the majority of the channel does not have any
proposed work. Please justify the requested E1 ratio for this reach or revise the ratio to reflect the
amount of uplift proposed.
The design will remain the same, but the treatment has been revised to Enhancement II at a 2.5:1 ratio.
Section 6.2 and Table 15 have been updated to reflect this change.
19. The mitigation plan references an easement area of 59.13 acres, but the letter from the long term steward
(Unique Places to Save) references a 54.92 acre mitigation site, which does not include the 10.46 acre
Duke Carolinas et al. Mitigation Order site. First, please explain the discrepancy between the size of
the bank site. Second, the endowment funding appears to be for both the Duke site and the mitigation
site. Please note that the estimate for the costs of the long-term steward should not include the Duke
site, and the endowment must be handled separately, so that there are not common funds applied to
both sites. All of the stewardship activates for the mitigation site must be independent from the Duke
site. Also, since the stewardship approval letter will be updated and was provided June 2017 make sure
all endowment cost estimates are updated if needed.
RES has coordinated a new agreement that does not include the Duke site in its engagement letter. The
letter is attached.

20. Does the Dogtown Site design take into consideration the trend of residential development that is
increasing adjacent to the site and in the watershed, as can be seen immediately to the north, west and
southeast on recent aerials? Would any additional changes in design, bmp's, etc. need to be incorporated
to adapt to this change in land use?
RES anticipates the watershed will realize increased urbanization in the future, however, the parcel area
outside the conservation easement will likely remain in agricultural use. RES has proposed a design
that will promote long-term stream stability for this anticipated watershed condition by restoring
floodplain connection, reestablishing and protecting wide, vegetated buffers, and installing grade
control structures. There is limited opportunity for BMPs on this project because most reaches enter
the project limits as intermittent or perennial steams.

Version March 2020
AGREEMENT TO ESTABLISH THE RES CATAWBA UMBRELLA MITIGATION
BANK
IN THE CATAWBA RIVER BASIN WITHIN THE STATE OF NORTH CAROLINA
USACE approval of this Instrument constitutes the regulatory approval required for
the [INSERT NAME OF THE MITIGATION BANK OR IN -LIEU FEE PROGRAM] to be
used to provide compensatory mitigation for Department of the Army permits pursuant to
33 C.F.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 , 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) are suitable
mitigation bank site(s), and that implementation of the Mitigation Plan(s) 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 for unavoidable wetland and/or stream impacts authorized
1

Version March 2020
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: Geoaraahic 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 Catawba Hydrologic Unit 03050101 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. Should there be a change to the
GSAs at the regulatory level, site -specific requests to adjust the credit sale area will be
reviewed and considered.
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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 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: Reaortina
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),
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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 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 Mitiaation 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 VII: Credit Release Schedule
A. All credit releases must be approved in writing by the DE, following consultation
with the IRT, based on a determination that required performance standards have
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been achieved.
B. A credit release schedule shall be provided in 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:
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 VIII: Accountina 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
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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 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.
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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.
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 Manaaement
A. The Sponsor shall implement the long-term management plan as described in
the site- specific Mitigation Plan(s). {Each site -specific plan must provide the
name and contact information for the party responsible for long-term
management.}
B. The long-term management plan will include a list of annual maintenance,
monitoring, and/or repair activities for each mitigation site, the associated annual
cost for each activity, and the required total amount necessary to provide all future
site management. The long-term management plan should explain how the funds
will be managed and provided to the designated long-term manager (e.g., an
endowment managed through a separate account holder). The long- term
management plan should include a contingency section that addresses how the
responsibility and funding for 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.
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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. As projects developed as part of this bank are specifically intended to restore
streams and/or wetland systems that are subject to periodic flooding and drought
conditions, they should be designed to withstand any such events that are
anticipated to occur in the natural environment. This is not limited to routine or
minor flooding or droughts, but also specifically includes flooding events resulting
from hurricanes, or other extreme weather events as well as extended periods of
drought. Additionally, this includes conditions resulting from sea level rise that
adversely impact projects that are part of this bank.
C. 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,
subject to the exceptions contained in Paragraph B above, 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.
D. 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
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obligations under this MBI, the DE shall issue a close out letter to the Sponsor.
Section XIII: Miscellaneous
A. Modification of this UMBI shall be in accordance with the procedures set forth in
332.8 of the mitigation rule.
B. No third party shall be deemed a beneficiary hereof and no one except the
signatories hereof, their successors and assigns, shall be entitled to seek
enforcement hereof.
C. This UMBI constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior agreements or undertakings.
D. In the event any one or more of the provisions contained in this UMBI are held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect any other provisions hereof, and this UMBI shall be
construed as if such invalid, illegal or unenforceable provision had not been
contained herein.
E. This UMBI shall be governed by and construed in accordance with the laws of
North Carolina and the United States as appropriate.
F. This UMBI may be executed by the parties in any combination, in one or
more counterparts, all of which together shall constitute but one and the
same instrument.
G. The terms and conditions of this UMBI shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors.
H. All notices and required reports shall be sent by regular mail to each of the parties
at their respective addresses, provided below.
Sponsor:
Environmental Banc & Exchange, LLC
Brad Breslow, Regulatory Manager
3600 Glenwood Ave., Suite 100
Raleigh, NC 27612
Corps:
Mr. Steve Kichefski
U.S. Army Corps of Engineers
Regulatory Division
Wilmington District, Asheville Field Office
151 Patton Avenue, Suite 208
Asheville, NC 28801
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USEPA:
Mr. Todd Bowers
Wetlands Section -
Region IV Water
Management Division
U.S. Environmental Protection
Agency 61 Forsyth Street, SW
Atlanta, Georgia 30303
USFWS:
Mr. Byron Hamstead
U.S. Fish and Wildlife Service
160 Zillicoa Street
Asheville, North Carolina 28801
NCWRC:
Ms. Andrea Leslie
North Carolina Wildlife Resources Commission
Balsam Depot
20830 Great Smoky Mtn. Expy
Waynesville, North Carolina 28786
NCDWR:
Ms. Erin Davis
Division of Water Resources
North Carolina Department of Environmental
Quality Post Office Box 29535
Raleigh, NC 27626-0535
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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The RES Catawba Umbrella Mitigation Bank In Catawba
County, North Carolina":
Sponsor:
Date:
U.S. Army Corps of Engineers:
By: Date:

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The RES Catawba Umbrella Mitigation Bank, Catawba
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:
National Marine Fisheries Service:
By:
N.C. Division of Coastal Management:
By:
Date:
Date:
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.)