20050949 Ver 2_More Info Received_20121102

LAW OFFICES of
F. BRYAN BRICE, JR.
F. BRYAN Mum, JR.
CATHERINE CRALLE JONES
MA'rmw D. Qum
E. WARREN KUHN
ROBERT GELBLuM, OF COUNSEL
November 1, 2012
Mr. Thomas Brown
U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
3331 Heritage Trade Dr., Ste. 105
Wake Forest, NC 27587
5 W. HARGETT ST., STE. 200
RALEIGH, NC 27601
TEL: 919 - 754-1600
FAx:[phone]
[e-mail]
Re: Modification Request, PEG Permit # SAW -2007- 04137, Johnston County
Dear Thomas:
Thanks for meeting with us last Wednesday and walking the property in Johnston
County. We greatly appreciate your time, and Jean and Craig as well. Please let this letter and
package replace any prior request for modification of the permit referenced above.
In that regard, given the environmental and related factors we discussed, as well as the
shortened timeframe and certain financial constraints given the real estate market conditions,
we propose the following options in order of preference:
Option 1. Allow the 1.53 acres of wetlands impacts at the site to be mitigated by
preserving approximately 32 acres ("Proposed Preservation Site ") adjacent
to the Rudolph Buffer/Nutrient Offset Mitigation Site which is located in
Johnston Co. in the Upper Neuse River Basin within the USGS HUC
03020201 and the N.C. Division of Water Quality (DWQ) sub -basin 03 -04-
02 (See, Attachment A). The Proposed Preservation Site will be protected
by a Conservation Easement in perpetuity and currently contains
approximately 31 acres of higher quality headwater and bottomland
hardwood forest jurisdictional wetlands. This preservation area is within a
48.3 acre property area that contains stream features and some wetland area
that will be proposed to be further enhanced/restored and connected to these
wetlands and the Rudolph site as well (Attachments).
Rather than have this functioning hardwood wetland community at risk for
being logged, we believe preserving this acreage retains the environmental
and ecological benefits described herein and referenced in part in the
attachments. The approximately fift adjacent
to our Proposed Preservation Site w _ years ago.

November 2, 2012
Page 2
• This also preserves the hardwood and related overstory, understory, and
vegetative community (see, attachments). This includes important habitat
on this swamp and/or riverine system that feeds directly to the Neuse River.
• This prime Proposed Preservation Site is located in Johnston County,
approximately 12.4 miles from the location of the 1.53 acres of impact in
Smithfield beside Industrial Park Dr. and South Equity Dr., just off I -95.
• It preserves an important hardwood (and some pine) wetland community
that is directly adjacent to a fully functioning, mature Neuse 01 stream
buffer and nutrient offset mitigation site (see, Attachment B). Such
connectivity is desirable for the added protections and benefits to water
quality, timber and vegetative growth, and wildlife habitat such large scale
preservation would provide in the Neuse 01 HUC, as well as the nearby,
already protected mitigation site.
• It is a high quality/higher value type of wetland community than the one
being impacted, which is of equal or greater environmental benefit to the
overall Neuse HUC and watershed.
• EBX Neuse I, LLC currently owns the Proposed Preservation Site. EBX
also reserves the right to maintain the existing farm paths inside the
Proposed Preservation Site area, if any. The proposed Conservation
Easement holder /grantee will be the N.C. Wildlife Habitat Foundation, who
currently holds many Conservation Easements for mitigation sites.
Option 2. Allow the permittee to satisfy its mitigation requirement by purchasing 6.5
credits from an existing, mature wetlands mitigation bank in the adjacent
(Meuse 02) HUC. We believe this would be environmentally beneficial for
the following reasons:
• Comports with State law NC Session Law 2009 -337 as amended by section
1.1 of S. L. 2011 -343, passed in 2009 and amended in 2011 by allowing the
purchase of mitigation which is already in the ground (mature) and
providing established environmental benefits and water quality
improvements to the Neuse basin.
• The Casey -King and Tull/Wooten Mitigation Sites are only 50 miles from
the approximately 1.5 acres of impacts, and drains directly into the Neuse
River and are both part of the EBX Neu Con Umbrella Mitigation Bank.
We are proposing 1.5 credits from the Casey -King Site and 5 credits from
the Tull/Wooten II Site.

November 2, 2012
Page 3
• This is four times the amount of the actual impact (1.53 acres) in mitigation;
is double what is required by EEP (3.25 credits); and is approximately 1.5
times the 4.5 credits referenced in the permit.
• These credits are mature; they are of a type that is the same or higher quality
wetland type compared to the 1.53 acres of actual impact; the credits are
providing significant water quality benefits for an area of the Neuse that is
impacted environmentally by discharges, etc. from the adjacent 01 HUC.
• For the remaining reasons as detailed in our previous correspondence, we
would incorporate that analysis into this request and given the factors
particular to this case/request (small impact, adjacent basin, mature bank,
environmental and ecological benefit in excess of actual impacts and in
excess of all current permit requirements), we believe that mitigation from
the adjacent HUC can be allowed to satisfy the current permit requirement.
Option 3. Allow the purchase of .5 credits from the EEP in lieu fee program from the
Neuse 01 HUC, combined with 4 credits from the adjacent basin (Meuse 02)
from the existing mitigation bank site as described in #2, above.
We believe Option 1 is the most environmentally beneficial option. The impacts are to
approximately 1.5 acres of wetlands that are no longer directly connected to a water body; are
fronted by local/state roads and a major federal highway; is across from the community
college; is surrounded by commercial (albeit small commercial) use, and just down from the
outlet mall development off I -95. In option 1, the approximately 1.5 acres of impacts would be
mitigated by permanently protecting the Proposed Preservation Site by a conservation
easement, with direct connectivity to the existing protected Rudolph Buffer/Nutrient Offset
Mitigation Site within the same County and within the same HUC.
Similarly, with option 2, the approximately 1.5 acres of impacts would be mitigated by
purchasing 6.5 mature wetlands credits from an existing bank whose function and
environmental benefit for water quality and the Neuse river is already well established and
meets the state law and its goals of using existing private banks and established, mature credits,
as well as stated federal law, guidance and even draft guidance as to the case by case analysis
of use of credits in an adjacent RUCs. The 6.5 credits from the Neuse bank are located
approximately 50 miles from the impacts.
While we believe the other options are feasible, they require mitigation from an
adjacent HUC and we do not think such is as environmentally beneficial as option 1. We
reviewed and discussed with you possible enhancement of the approximately 15 acres beside
the site listed on option 1, but have determined it is not feasible from an environmental
perspective (access, suitability, ultimate success and cost), and did not locate any feasible sites
or opportunities within the direct vicinity of the impact. Also, it was not feasible, particularly
due to cost constraints, to attempt to develop a bank site in 01 when there were only 1.53 acres
of actual, total impacts. Due to the regulatory change in the EEP in lieu fee structure and the

November 2, 2012
Page 4
new, tiered system for the Neuse 01 HUC, the changed circumstances from the time of the
original permit and the real estate market crash have made purchase from that program of
anything more than half a credit not feasible. Similarly, it is not feasible to purchase a half
credit from EEP and some smaller portion of preservation from the proposal in Option 1, as the
property owner is not willing to sell only a portion of the preservation property.
For these reasons, we respectfully request approval of option 1 as our permit
modification request. The parties would be able to close on the land sale contract for the
recombined lots 18 and 19 as soon as we obtain your approval for the modification. We
believe these options, particularly option 1, are of significant environmental benefit when
viewed in total and in comparison to the impact, and comport with federal and state law,
regulations and guidance in allowing said modification request. Also, as stated in prior
discussions and correspondence, all 401 conditions will be met in short order as well.
As to the remaining acre onsite, due to concerns about trees and integrity of the
building and property, we further request that the area not be preserved but remain as is
currently in place. The property purchasers will seek to preserve the onsite wetland area with a
future request likely to establish smaller species plantings within the on site acre, with the
ability to maintain appearance and structural integrity of the building(s). They will propose the
exact language with you after finishing the building.
Thomas, I express again our thanks for your review and assistance. Please do not
hesitate to call if you have any questions or concerns, or if you or any of your colleagues in this
process need any further information.
Sincerely,
F. B Brice, Jr.
cc: Jean Gibby
Justin McCorcle
Chuck Wakild
Eric Kulz

ATTACHMENT A - Site Comparison
SUMMARY: IMPACT SITE
Area: (1.53 ac)
HUC: 03020201
Ecoregion: Southeastern floodplains and low terraces
Wetland Type (NCWAM): Pine Flat
Vegetation: Early succession hardwood regeneration
Soils: Rains sandy loam
Watershed: Tributary to Polecat Branch and Neuse River
The proposed impact site contains 1.53 acres of disturbed Pine Flat wetlands
located adjacent to existing development and connected to the development's storm
water system. Historically, the wetland served as a headwater flat area for water
draining to Polecat Creek and eventually to the Neuse River. With the construction
of 1 -95 and surrounding development, this wetland area is now cut off from the
historic hydrology drainage regime.
Soils on the site are hydric and are most similar to Rains sandy loam series soil
(USDA - Johnston County, 1994). Vegetation on the site has been cleared with the
exception of one maturing red maple (Acer rubrum) (20+ ft), and three willow oak
(Quercus phellos) trees (30 -50 ft). Regenerating vegetation consists of a mixture of
giant cane (Arundinariagigantea), red maple, sweetbay (Magnolia virginiana),
swamp blackgum (Nyssa sylvatica var. biflora), sweetgum (Liquidambar styracitlua),
water oak (Quercus nigra), willow oak, red bay (Persea borbonia) , ti ti (Cyrilla
racemiflora), sweet pepperbush (Clethra alnifolia), Juncus sp., Smilax sp., and
Andropogon sp., black willow (Salix nigra), and Sphagnum spp moss
Overall, the impact site is surrounded by development on all sides and has lost
historic hydrologic connectivity. Vegetation is diverse, but in an early successional
state. Connectivity for wildlife to adjacent lands has also been lost. Overall, the
wetland area remaining is disjunct and does not offer the wetland values and
services once present
SUMMARY: MITIGATION SITE
Area: (32 ac)
HUC:03020201
Ecoregion: Southeastern floodplains and low terraces
Wetland Type (NCWAM): Headwater Wetland and Bottomland Hardwood Forest
Vegetation: Mature and mid succession regenerating hardwoods /mixed
pine /cypress, gum
Soils: Wehadkee - Chastain loam association (frequently flooded), Augusta sandy
loam (occasionally flooded), Tomotley sandy loam (rarely flooded)
Watershed: Tributary to Moccasin Creek and Neuse River

The proposed mitigation site contains approximately 31 acres of a mixture of
Headwater Wetland and Bottomland Hardwood Forest wetlands. Water draining
from the site courses through existing channelized ditches flowing toward Moccasin
Creek and eventually to the Neuse River. The site is directly abutting an existing
Neuse River Buffer and Nutrient Offset mitigation site. The proposed mitigation
area will form a connection between the existing mitigation site and Moccasin
Swamp.
Soils on the site are hydric with some areas of better drained soils extending away
from Moccasin Swamp. Soils consist of Wehadkee - Chastain loam association
(frequently flooded), Augusta sandy loam (occasionally flooded), and Tomotley
sandy loam (rarely flooded) along existing channelized drainage networks (USDA -
Johnston County, 1994). Vegetation on the site has been cut in some areas and left
to mature in the wettest areas near Moccasin Swamp resulting in a diverse forest,
forest age classes, and habitats.
Vegetation on better drained soils and along drainage ways contain green ash
(Fraxinus pennsyvanica), water oak, willow oak, red maple, sweetgum, swamp
blackgum, smilax, giant cane, sweet bay, red bay, swamp chestnut oak (Quercus
michauxii), loblolly pine (Pinus taeda), and - American holly (Ilex opaca).
The vast majority of the site contains jurisdictional wetlands. The wettest areas, or
depressions contain regenerating swamp blackgum and bald cypress and have not
matured as fast as surrounding swamp chestnut, water, and willow oak stands.
Depressions also contain red maple, ti ti, sweetgum, cinnamon fern (Osmuda
cinamomea), chain fern (Woodwardia areolata), royal fern (Osmuda regalis), and
lizards tail (Saururus cernuus).
Flooded open water areas also exist on the site and contain jurisdictional wetlands,
connecting with existing drainage networks and eventually other flooded areas
adjacent to the Moccasin Creek bottomland hardwood wetland complex. Flooding
of the wetlands is caused by overbank flooding from Moccasin Creek as well as by
beaver activity.
Overall, the site is functioning well as a complex of Headwater Wetland and
Bottomland Hardwood Forest jurisdictional wetlands. Most of the property is
frequently flooded, mature, bottomland hardwood forest wetlands with minor areas
of better and more poorly drained soils. The site supports diverse wildlife habitats,
connects a large area of existing wetlands as well as mitigation property, and will
maintain existing jurisdictional wetland functions if preserved in perpetuity.

HiVd ONIISIX3
31lS NOUVE)WIN
1N3i2:unNM3=iAne
ONUSIX3
V36V NOUVA83S38d
(I NVI13M (13SOdMId
U0148AJGSGJd puepeM posodOJd
911S LldjopnN - _XS3_
IL - -. k, -I
6-
4.

en
WWI
awl
orte
n ay
\'
�
EBX
Figure
UGGS Quad Map
Rudolph Buffer/Nutrient Offset Site
u 1.000 2,000 4.000
roa
1 inch = 2,000 feet
JOHNSTON COUNTY
Scale: NTS

9/A
10 000 Feet
2 3 Kilometers
N

/ = ZONE 1 BUFFER RESTORATION
\ 103,838 SF — 2.384 AC
= ZONE 2 BUFFER RESTORATION
aK1
69,226 SF — 1.589 AC
At I = NUTRIENT REDUCTION BUFFER
1, 771,150 SF — 40.660 AC
$I
1
I
I I
I
I �
1 I L -- -row
ICI
III
III$
III
rear"k'.wor
411M. M!M
11 .111 A /N
- - - -- - .- -- -
. .`:e=
� amEr. a� 1s�olncNrs we vc., aN -
11n iirow
q7 uc
AREA 1
•
w
\
_ _ C
Y:.°"a
A A PB rn 9nI}q Q rm[
—AS —BUILT SURVEY OF ,�%
m f]14 w .Y I
THE RUDOLPH SITE
FOR MATRIX EAST, PLLC
EBX NEUSE I, LLC. PROFESSION& L4ND 5UIRVE"M
900 K OUEM 9T. SURE A KNISM w 2101
BOON HILL TOWNSHIP ,TUNE 16. 2011 lEl: 78Z- O1i -9D0p fNe• 762i'7 -QQ
.IOHNSTON COUNTY. NC = 200 {TIM L1C, P -0111 EWL: wrvgwF,nlrv1011.M
200' 100' 0 200' WO' DRINK OY: c P PppdECi U).: 101000]9
SURVEYED N' ALL I SATE: 0/16/11
41URITC SG4E
Rlm VaP.rI I SCAIC F - MC ORAWNF NM1E: OEClAMl10N

4,
0,1 'COT',
ie
i
t Google-earth