HomeMy WebLinkAbout20050893 Ver 1_Mitigation Requirement Info_20120928Strickland, Bev
From: Johnson, Alan
Sent: Friday, September 28, 2012 10:55 AM
To: Strickland, Bev; Mcmillan, Ian
Subject: FW: Foxhole Landfill Mitigation Requirements: U.S. Army Corps Permit No. 200531884
Attachments: Davie Park Stream Restoration Recorded Plat MapBook 54 Pg 172.pdf; Davie Park Stream
Restoration Conservation Declaration Book 27670 Pg 241 (177769).pdf; HDR_Letter
20120926.pdf
Something for laserfiche ? ? ? ??
From: Crowell, Dasa [ mailto :Dasa.Crowell(a)hdrinc.com]
Sent: Wednesday, September 26, 2012 1:02 PM
To: Amanda. D.JonesCa)usace.army.mil; Johnson, Alan
Cc: amber. rzymski(a)mecklenbur cq ountync.gov; Joe.Hack(a)mecklenbur cq ountync.gov; Plummer, Michael; Mularski, Eric
Subject: Foxhole Landfill Mitigation Requirements: U.S. Army Corps Permit No. 200531884
RE: U.S. Army Corps Permit No. 200531884
NC Division of Water Quality #050893
• warg.
Please find enclosed letter, recorded Conservation Declaration, and recorded Conservation Easement Plat of Davie Park
stream restoration associated with Foxhole Landfill in Mecklenburg County, NC mitigation requirements.
I plan to send one hard copy of the documents to Amanda to the Asheville Regulatory Field Office.
Please let me know if you have any questions or need additional information or hardcopies of the attached documents.
Thank you.
Sincerely,
DASA CROWELL, PE ( HDR Engineering, Inc. of the Carolinas
Water Resources Engineer
440 S. Church St. I Suite 1000 1 Charlotte, NC 28202 -2075
p: 704.338.6703 1 f: 704.338.6760
dasa.crowell @hdrinc.com I hdrinc.com
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B27670- P241
Prepared by Mecklenburg County
Mail to Marvin A. Bethune (ROD 24)
STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
FOR REGISTRATION
yy
J REGISTERrOFbDEEOS
Mecklenburg County NC
2012 SEP 20 11 :46:17 AM
SK: 27670 PG:241 -247
INSTRUMENT$ #620102131370
JACKSED
Project Name: Davie Park Stream
Restoration
Portion of Tax Parcel: 225- 082 -05
CONSERVATION DECLARATION
This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS ( "Conservation Declaration ") is made on this l� `�h day of^5z'M r —,
2012, by MECKLENBURG COUNTY, 600 East Fourth Street, Charlotte, North Carolina, 28202
( "Declarant ").
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain real property situated, lying,
and being in Mecklenburg County, North Carolina ( "Property "), conveyed to Declarant by
instrument recorded in Deed Book 9276 at Page 437 of the Mecklenburg County Registry.
B. Declarant agrees to restrict and limit the use of that portion of the Property
( "Conservation Area "), as shown on Exhibit A and being more particularly described on Map
Book 54 page 172 and hereby made a part of this document, to the terms, conditions and
purposes hereinafter set forth.
C. The purpose of this Conservation Declaration is to maintain wetland and/or riparian
resources and other natural values of the Property, and prevent the use or development of the
Property for any purpose or in any manner that would conflict with the maintenance of the
Property in its natural condition. The preservation of the Property in its natural condition is a
condition of the Department of the Army permit (Action ID 200531884) issued by the
Wilmington District Corps of Engineers (Corps), required to mitigate for unavoidable impacts to
waters of the Unites States authorized by that permit, and this Conservation Declaration may
therefore be enforced by the United States of America.
B27670- P242
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the
Conservation Area shall be held and subject to the following restrictions, covenants and
conditions as set out herein, to run with the subject real property and be binding on all parties
that have or shall have any right, title, or interest in said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, ' the Conservation Area inconsistent with the purposes of this
Conservation Declaration is prohibited. The Conservation Area shall be maintained in its natural
and scenic condition and restricted from any development or use that would impair or interfere
with the conservation purposes of this Conservation Declaration set forth above.
Without limiting the generality of the foregoing, the following activities and uses are expressly
prohibited or restricted within the Property.
A. Disturbance of Natural Features. Any change disturbance, alteration or impairment
of the natural features of the Property or any introduction of non - native plants and/or animal
species is prohibited.
B. Construction. There shall be no construction or placement of temporary or
permanent structures or facilities, including, but not limited to antennas, utility poles, towers,
fences, pavement, storage buildings and storage tanks on, under, or above the Conservation Area,
except for pre- existing structures or facilities shown on Exhibit A. Pre - existing structures may
be repaired, maintained or removed as necessary provided such actions do not diminish the
Conservation Values of the Conservation Area.
C. Industrial, Commercial and Residential Use. Industrial, residential and /or
commercial activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal husbandry
and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting or
mowing of trees, shrubs or other vegetation on the Property except for maintenance purposes
along utility right of ways , established greenways and emergency access trails. Invasive species
that may threaten existing native vegetation may be removed.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the
Property except for the trail and crossing indicated in Exhibit A. The trail and crossing will be
constructed to minimize impact to the Conservation Area. Details of the proposed trail and
crossings must be reviewed and approved by the Army Corps of Engineers prior to construction.
Existing trails (as shown on Exhibit A) may be repaired, maintained or removed as necessary
provided such actions do not diminish the Conservation Values of the Conservation Area.
G. Signage. No signs shall be permitted on or over the Property, except the posting of
no trespassing signs, educational signs along the trails, signs identifying the Conservation Values
B27670- P243
of the Property, signs giving directions or proscribing rules and regulations for use of the
Property and /or signs identifying the Grantor as owner of the Property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste,
or any placement of underground or aboveground storage tanks or other materials on the
Property is prohibited.
I. Excavation, Dredging or Mineral Use. There shall be no grading, filling, excavation,
dredging or mining; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials,
and no change in the topography of the land in any manner on the Property, except to restore
natural topography or drainage patterns.
J. Water Quality and Drainage Patterns. There shall be no diking, draining, dredging,
channeling, filling, leveling, pumping, impounding, or diverting surface runoff or surface water
flow; altering or tampering with water - control structures or devices; disruption or alteration of
restored, enhanced, or created drainage patterns; removing of wetlands; polluting or discharging
into surface waters, springs, seeps, or wetlands.
K. Utilities. All efforts must be made to avoid utility construction in the Conservation
Area. All utility projects must be reviewed and approved by the Army Corps of Engineers prior
to construction. Declarant understands that, in the event that the construction of a utility line
reduces the conservation value of this conservation property in any way, that the Department of
the Army permit for such utility line may be conditioned to require mitigation for impacts to
aquatic resources caused by the new utility line, as well as mitigation to compensate for any
reduced conservation values of this conservation property. Utility easements of record on the
date hereof and utility installations and facilities pursuant thereto are exempt from the
restrictions described herein. The following conditions shall apply to new utility construction:
1. For new utility line construction, the Declarant shall investigate reasonable
alternatives to placing any new utility lines on the Conservation Area and shall
avoid placing new utility lines on the Conservation Area where feasible.
2. Utilities shall be constructed and installed pursuant to a written utility easement
agreement recorded in the local land records registry requiring that such
construction and installation shall be conducted in a manner that minimizes
interference with the Conservation Values.
3. All utility improvements shall be constructed pursuant to regulatory requirements
and approvals, and in compliance with the terms and conditions of the Mitigation
Agreement.
4. Sanitary sewer lines and wastewater collection systems, if any, shall be installed
and maintained pursuant to all applicable federal, state and local laws, rules,
statutes, ordinances, regulations and permits, specifically any permits required by
the NC DENR DWQ or successor agency.
B27670- P244
5. After construction, the permanent utility easement will be re- vegetated with
suitable native vegetation, provided however that a 15 -foot wide mowing area is
allowed over utility lines.
6. Utility crossings of the stream must be located at least 250 -feet apart. Corridor
and clearing width shall be limited to the minimum necessary to construct the
needed facilities, subject to line size," equipment size, work zone and legal
requirements.
7. Stream crossings shall be perpendicular and accomplished by drilling, boring and
jacking methods when possible; when crossings must be constructed using open
trench excavation, temporary discharge of excavated or fill material shall be
minimized in both quantity and duration.
8. Any utility crossing of the stream shall be restored to its pre - construction
condition to the greatest extent practicable. Each utility crossing shall be
completed and restoration will be accomplished in a timely manner such that
environmental and erosion impact is minimized.
9. Utilities constructed parallel to stream corridors shall be located a minimum of 30
feet from the top of the stream bank to the greatest extent practicable. The area
between the utility and the top of stream bank shall remain undisturbed except at
stream crossings.
10. All disturbed and removed vegetation in access areas, staging areas, temporary
areas, excluding the permanent utility easement, shall be replaced with native
herbaceous species such that the disturbed area achieves a rapid recovery from the
disturbance.
11. Erosion control devices shall be utilized to contain all disturbed materials and will
conform to current laws and regulations. Crossing of the waterway, wetland or
other water feature will be accomplished in a timely manner such that
environmental and flooding impact is minimized.
12. Depth of underground construction shall be to a sufficient depth to avoid future
exposure due to scouring, as determined by a registered professional engineer or
other person satisfying the requirements of condition number 8 above.
L. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Declaration shall be transferred pursuant to a transferable
development rights scheme or cluster developments arraignment or otherwise.
M. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all- terrain vehicles, cars and trucks is prohibited, except for the
B27670- P245
maintenance of the existing trails, emergency access and utilities or in case of an emergency.
N. Other Prohibitions. Any other use of, or activity on, the Property, which is or may
become inconsistent with the purposes of this grant, the preservation of the Property substantially
in its natural condition, or the protection of its environmental systems, is prohibited.
ARTICLE 1I. ENFORCEMENT & REMEDIES
A. Enforcement. This Declaration is intended to ensure continued compliance with the
mitigation condition of authorization issued by the United States of America, U.S. Army Corps
of Engineers, Wilmington District, and therefore may be enforced by the United States of
America. The covenant is to run with the land and shall be binding on all parties and all persons
claiming under the Declarant.
B. Right of Entry and Inspection. The Corps, its employees and agents and its
successors and assigns, have the right, with reasonable notice, to enter the Property at reasonable
times for the purpose of inspecting the Conservation Area to determine whether the Declarant,
Declarant's representatives, or assigns are complying with the terms, conditions and restrictions
of this Conservation Declaration.
C. Acts Beyond Declarant's Control. Nothing contained in this Conservation Declaration
shall be construed to entitle the Corps to bring any action against Declarant for any injury or
change in the Conservation Area caused by third parties, resulting from causes beyond the
Declarant's control, including, without limitation, fire, flood, storm, and earth movement, or
from any prudent action taken in good faith by the Declarant under emergency conditions to
prevent, abate, or mitigate significant injury to life or damage to Property resulting from such
causes.
ARTICLE III. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to enter the
Conservation Area for any purpose whatsoever except on established public trails or roads
described in Article I, Section F.
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Area Condition. Declarant represents and acknowledges that the
Conservation Area is currently undeveloped land, with no improvements other than any existing
trails, utility lines, Declarations and rights of way.
B. Title. Declarant covenants and represents that Declarant is the sole owner and is
seized of the Property in fee simple and has good right to make the herein Declaration; that there
is legal access to the Property and that the Property is free and clear of any and all
encumbrances, except Declarations of record.
ARTICLE IV. MISCELLANEOUS
B27670- P246
A. Conservation Purpose. Declarant, for itself, its successors and assigns, agrees that this
Conservation Area shall be held exclusively for conservation purposes.
B. Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to the Conservation Declaration and supersedes all prior discussions, negotiations,
understandings or agreements relating to the Conservation Declaration. If any provision is found
to be invalid, the remainder of the provisions of this Conservation Declaration, and the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, shall not be affected thereby.
C. Recording. Declarant shall record this instrument and any amendment hereto in
timely fashion in the official records of Mecklenburg County, North Carolina, and may re- record
it at any time as may be required to preserve its rights.
D. Environmental Condition of Conservation Area. Declarant warrants and represents
that to the best of its knowledge after appropriate inquiry and investigation: (a) the Conservation
Area described herein is and at all times hereafter will continue to be in full compliance with all
federal, state and local environmental laws and regulations, and (b) as of the date hereof there are
no hazardous materials, substances, wastes, or environmentally regulated substances (including,
without limitation, any materials containing asbestos) located on, in or under the Conservation
Area or used in connection therewith, and that there is no environmental condition existing on
the Conservation Area that may prohibit or impede use of the Conservation Area for the
purposes set forth in the Recitals.
E. Subsequent Transfer of Fee. The Property owner shall not convey the Conservation
Area or any interest therein, and shall not incur, assume, or suffer to exist any lien upon or with
respect to the Conservation Area without disclosing to the prospective buyer the Conservation
Declaration, the obligations of the Property owner, limitations on use of the Conservation Area, and
affirmative rights of the Declarant hereunder. Declarant further agrees to make any subsequent
lease, deed, or other legal instrument by which any interest in the Conservation Area is conveyed
subject to the Conservation Declaration herein created. Declarant shall notify the Corps in
writing of the name and address of any party to whom the Conservation Area or any part thereof
is to be transferred at or prior to the time said transfer is made.
F. Amendments. Declarant and the Corps, or their successors in interest in the
Conservation Area, are free to jointly amend this Conservation Declaration to meet changing
conditions, provided that no amendment will be allowed that is inconsistent with the purposes of
this Conservation Declaration or affects the perpetual duration of this Conservation Declaration.
Such amendment(s) require the written consent of the Corps and shall be effective upon
recording in the public records of Mecklenburg County, North Carolina. The Declarant
acknowledges that it shall have no right to conduct or agree to any activity that would result in
termination of this Conservation Declaration.
G. Interpretation. This Conservation Declaration shall be construed and interpreted
under the laws of the State, and any ambiguities herein shall be resolved so as to give maximum
B27670- P247
effect to the purposes of this Conservation Declaration as stated herein. Further, this
Conservation Declaration shall be construed to promote the purposes of the Conservation
Agreements Act, which authorizes the creation of conservation agreements for purposes
including those set forth herein, such conservation purposes as are defined in Section 170(h) (4)
(A) of the Code and set forth in NCGS Chapter 113A, Article 18. If any provision of this
Conservation Declaration is found to be invalid, the remainder of the provisions of this
Conservation Declaration, and the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, shall not be affected thereby.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and
year first above written.
NORTH CAROLINA
COUNTY OF MECKLENBURG
M,
APPROVED AS TO FORM:
;EAL) By:
County Attorney
I,T-A A/� ' , ln%Q Notary Public, do hereby certify that To n ; Ce. S PQ,`er f,
personally appeared before me this day and acknowledged that he /she is Clerk to the Board of
County Commissioners of Mecklenburg County, and that by authority duly given and as the act
of the Board, the foregoing instrument was signed in its name by its County Manager, sealed
with its County seal, and attested by him/herself as its Clerk to the Board.
WITNESS WHEREOF, I have hereunto set my
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September 26, 2012
Ms. Amanda_ Jones
U.S. Army Corps of Engineers
151 Patton Avenue, Rm. 208
Asheville, NC 28801 -5006
RE: Foxhole Landfill
Permit Number 2005531884
Mitigation Requirements — Davie Park Stream Restoration .Conservation Easement
Ms. Jones:
The intent of this letter is to update you on the completion and progress of select mitigation
components associated with the Foxhole Landfill expansion project.
In October 2006, Mecklenburg County Solid Waste Services received a U.S. Army Corps permit to
discharge fill material into jurisdictional streams and wetlands associated with the expansion of the
Foxhole Landfill (permit number 200531884 with expiration date extended to July 1, 2022). This
project is located on the east side of US Hwy 521, in Charlotte, Mecklenburg County, North
Carolina. Mitigation for the unavoidable impacts to streams and wetlands associated with this
project includes the following:
• preserving 3,400 linear feet of Six -Mile Creek (and 70.99 acres of open space /riparian
buffer);
• treating approximately 4 acres of invasive trees and shrubs within the Six -Mile Creek
preservation area;
• restoring 1,486 linear feet of stream channel in Davie Park;
• making payment to the N.C. Ecosystem Enhancement Program (NCEEP) to restore 2.1
acres of wetlands; and.
• making payment into the City of Charlotte Umbrella Mitigation Bank to restore 968 linear
feet of stream channel:
The Declaration of Conservation Covenants, Conditions, and Restrictions (Conservation
Declaration) associated with the stream restoration in Davie Park was completed and reviewed by
you and revised by the County as requested by e -mail from April 23, 2012. The Conservation
Declaration was recorded with Mecklenburg County Register of Deeds on September 20, 2012 in
Book 27670 on pages 241 through 247. The Conservation Easement Plat was recorded with
Mecklenburg County Register of Deeds in June 2012 in Map Book 54 on page 107.. Please find
enclosed a copy of the Conservation Declaration and CE Plat for your reference file.
A summary of all the project's mitigation components as well as their current statuses are depicted
in Table 1.
HDR Engineering, Ine.ofthe Carolinas 440 S Church Street Phone: 1704►338 -6700
Suite 1000 Fax: (704) 338 -6760
Charlotte, NG 28202 -1919 www.hdrinc.com
Should you have any questions or comments, please call me at 704.338.6703 or e-mail me at
dasa.croweil@hdrinc.com.
Sincerely,
HDR Engineering, Inc. of the Carolinas
Dasa Crowell, PE
Water Resources Engineer
Enclosure: Conservation Declaration
Conservation Easement Plat
Cc: Joe Hack, Mecklenburg County Solid Waste Services
Amber Grzymski, Mecklenburg County Solid Waste Services
Alan Johnson, NC Division of Water Quality
Mike Plummer, HDR
Eric Mularski, HDR
HDR Engineering, Inc. of the Carolinas
Internet
Table 1
Summary and Status of
Required Mitigation Components
T'
'0
Wetland
EEP Payment
2.1 ac. credits
Stream
Six-Mile Creek & Riparian Buffer
3,4000 If / 70.99
Preservation and Registered Conservation
COMPLETE
Declaration
ac.
Six-Mile Creek Riparian Buffer Invasive
3.99 ac.
COMPLETE
Plant Treatment
Charlotte Storm Water Services Umbrella
9681f / credits
COMPLETE
Mitigation Bank payment
Davie Park Stream Restoration
• Stream Restoration Construction
1,4861f
COMPLETE
• Registered Conservation Declaration
COMPLETE
• Stream Restoration Monitoring
5-years
Yr 1: Report 2011 Complete
I— I
Yr 2: Report 2012 In progress
Should you have any questions or comments, please call me at 704.338.6703 or e-mail me at
dasa.croweil@hdrinc.com.
Sincerely,
HDR Engineering, Inc. of the Carolinas
Dasa Crowell, PE
Water Resources Engineer
Enclosure: Conservation Declaration
Conservation Easement Plat
Cc: Joe Hack, Mecklenburg County Solid Waste Services
Amber Grzymski, Mecklenburg County Solid Waste Services
Alan Johnson, NC Division of Water Quality
Mike Plummer, HDR
Eric Mularski, HDR
HDR Engineering, Inc. of the Carolinas
Internet