20201357 Ver 1_Intent to Approve_20210907

Strickland, Bev
From: Browning, Kimberly D CIV USARMY CESAW (USA)
<[e-mail]>
Sent: Tuesday, September 7, 2021 12:17 PM
To: Tugwell, Todd J CIV USARMY CESAW (US); Haywood, Casey M CIV (USA); Davis, Erin B;
Wilson, Travis W.; Munzer, Olivia; Bowers, Todd; Merritt, Katie; Youngman, Holland J;
Crumbley, Tyler A CIV USARMY CESAW (USA); Lastinger, James C CIV USARMY CESAW
(USA); Gledhill-earley, Renee; Brown, David W CIV USARMY CESAW (USA); Jones, M
Scott (Scott) CIV USARMY CESAW (USA)
Cc: Catherine Manner; Adam McIntyre; [e-mail]
Subject: [External] Intent to Approve/ WLS Catawba 01 UMBI & Starker Mitigation Site/
SAW-2020-01540/ Catawba County
Attachments: WLS Catawba 01 UMBI Final.pdf; Starker Response to IRT Comments.pdf
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Good afternoon,
This email is in reference to the SAW-2020-01540, Water & Land Solutions, LLC, WLS Catawba 01 UMBI, Starker Final
Mitigation Project. The sponsor's response to IRT comments is attached. Please log -in to the RIBITS website below to
view the WLS Catawba 01 Starker Final Mitigation Plan (dated August 2021):
https://ribits.ops.usace.army.mil/ords/f?p=107:2
We have evaluated the comments generated during the review period for the Draft Mitigation Plan as well as the
attached responses from the bank sponsor, and determined that all issues have been adequately
addressed. Accordingly, it is our intent to approve the Starker Mitigation Site and the WLS Catawba 01 UMBI 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 or Umbrella Banking Instrument notify the District Engineer by letter within 15 days of this email
(by COB on September 22, 2021). Please notify me if you intend to initiate the Dispute Resolution Process.
Provided that we do not receive any objections, we will provide an approval letter to WLS, LLC at the conclusion of the
15-day Dispute Resolution window. This approval will also transmit comments generated during the review process to
WLS, LLC, and indicate that the approved responses must be included in the Final Mitigation Plan. All NCIRT members
will receive a copy of this letter and Final Mitigation Plan for your records.
Provided that we do not receive any objections, we will provide approval to Water & Land Solutions, LLC. at the
conclusion of the 15-day Dispute Resolution window. Additionally, attached is the WLS Catawba 01 UMB Instrument for
your agency's signature after the final plan is approved.
Thank you for your participation,
Kim
1

Kim Browning
Mitigation Project Manager, Regulatory Division I U.S. Army Corps of Engineers

August 20, 2021
US Army Corps of Engineers
Regulatory Division, Wilmington District
Attn: Kim Browning
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
RE: WLS Responses to NCIRT Review Comments Regarding the WLS Catawba 01 Umbrella
Mitigation Bank (UMBI) Final Mitigation Plan Approval for the Starker Mitigation Project, USACE
AID# SAW-2020-01540, Catawba River Basin, Cataloging Unit 03050101, Catawba County, NC
Dear Ms. Browning:
Water & Land Solutions, LLC (WLS) is pleased to provide our written responses to the North Carolina
Interagency Review Team (NCIRT) review comments dated June 16, 2021 regarding the Draft Mitigation
Plan for the Starker Mitigation Project. We are providing our written responses to the NCIRT's review
comments below, which includes editing and updating the Final Mitigation Plan and associated
deliverables accordingly. Each of the NCIRT review comments is copied below in bold text, followed by
the appropriate response from WLS in regular text:
USACE Comments (Kim Browning):
1. UMBI: The correct agency representatives are
a. Corps: Kim Browning, Wilmington District Mitigation Office, 3331 Heritage Trade
Drive, Suite 105, Wake Forest, NC 27587
b. USFWS: Replace Claire Ellwanger with Holland Youngman
c. NMFS: Replace Ken Riley with Twyla Cheatwood
Response: These agency representatives have been updated in the UMBI.
2. S100: During the IRT site visit rehabilitation was discussed for Wetland A, with wetland
enhancement inside the wood line. I would welcome the inclusion of this area in the
mitigation plan for credit, particularly since Section 6 refers to wetland enhancement as
being one of the critical benefits of stream restoration, provided a wetland gauge be
installed prior to construction to document existing conditions and demonstrate
functional uplift. Response: At this time WLS will not be requesting any wetland credit for the
project. It was determined that Wetland A did not provide enough credit to make it feasible to add
to the bank. WA is limited in size and uplift. Language has been added to section 6 making it clear
that no credit is being sought for WA.
3. General: I appreciate the level of detail and site -specific information provided. Response:
Thank you.
4. Section 3.6.2: Please discuss the survey results for the dwarf -flowered heartleaf. Response: A
survey for dwarf -flowered heartleaf was conducted on April 15, 2021, with no individuals found.
The results are now included in Section 3.6.2 as well as the letter from US Fish and Wildlife Service
which is included in appendix G.

5. Section 4 and Table 7 references the stream functions pyramid and function -based goals as
a way to measure functional uplift. Physiochemical and biological functions are benefits
that are presumed and will not be measured by monitoring. Unless you intend to
demonstrate actual uplift in biology and water quality, I recommend that these sections be
reworded to state that uplift in these areas is implied. Response: Section 4.1.1 has been
updated as well as Table 7.
6. Table 7: The landscape connectivity benefits related to biology are listed as "...the
restored stream bed will allow animals to have easier access to a drinking water source."
It's not appropriate for livestock to use the mitigation site streams as a source of water. It
would be more appropriate to discuss aquatic species in this section. Response: This
section has been updated and now discusses the benefits of aquatic and terrestrial species
migration. Livestock will not have access to any part of the restored channels.
7. Table 8: Why are the proposed credits approximately 300 LF less than the existing length? Is
this to account for stream crossings? The areas that are not credited but are park of this
project should be listed as non -credited LF in this table. Response: The non -credited length
was not included in the proposed credits. The non -credited linear footage is now included as a
separate column in this table.
8. Sections 6.3 and 9.1.3: Is a rain gauge proposed to be installed on site to demonstrate
normal rainfall conditions? If so, please indicate its location on Figure 10. Additionally,
obtaining precipitation data from the Oxford RS is acceptable, but should that data not be
available, we feel that the Hickory Airport Station that is 12.5 miles away is too far to
accurately represent site conditions. Response: An onsite rain gage will be added on the project
site to collect rainfall data. If there is a malfunction or data gap in the onsite data, the Oxford RS
data will be used. The Hickory Airport station has been removed.
9. Section 6.3.1: Development within the watershed is a major consideration for this project
and it's understood that increases to runoff patterns were accounted for when considering
higher/steeper discharge curves and additional grade control structures. Were allowances
for increased floodplain width and storage considered. 100-150 ft buffers would be
beneficial on this site. Response: The design incorporates adequate bench and floodplain widths
to reduce velocities and shear stresses on the channel, both pre- and post -development. The buffer
widths provided will be adequate for protecting the stability of the channel and were negotiated
with the landowner. Buffer widths of at least 50 feet are provided but will exceed 50 feet, up to 70
feet, in many locations. These proposed buffer widths satisfy current regulatory guidance.
10. Section 6.4.1: Please include the location of the reference sites used. Additionally, add
a figure that shows the location of the reference sites in relation to the project site.
Response: The reference reach locations have been added to Section 6.4.1. Figure la was created
to show the reference reach locations in relation to the project site.
11. Section 6.5: Please show these water quality treatment areas on Figures 9 & 10 and verify
that they will not be placed in jurisdictional waters. Response: The water quality features have
been added to Figures 9 & 10. These water quality features are not located in jurisdictional waters.
12. Table 16 and Design Sheet 3A: The Note indicates that species may change due to
refinement or availability. Please notify the IRT if species are substituted, and red -line in
the As -Built. Response: The note has been edited to indicate WLS will provide a red -line of the
plating list in the as -built report.
13. Section 6.6: Since both Piedmont/Low Mountain Alluvial Forest and Mixed-Mesic Hardwood
Forest target communities are proposed, these areas should be differentiated on Design
sheets 28-31. It's also recommended to include a figure that shows the different planting
zones. Response: The design sheets 28-31 have been updated and figure 11 has been added to the
GIS figures to show the planting zones within the conservation easement. The planting areas
shown are approximate and field conditions at the time of planting will dictate final planting
zones.

14. Section 6.6.1: Vegetation planting must be conducted between November 15 and March 15.
Response: WLS proposes that the planting be completed by the start of the growing season in
Catawba County, March 30th (per WETS data). The planting date has been updated in section 6.6.1.
15. Page 39: Japanese stiltgrass should be added to this section. Response: Japanese stilt grass has
been added to the invasive species section. WLS is not proposing stiltgrass treatment unless it
threatens success of the planted trees.
16. Section 6.7.4: I appreciate the detail in this section. Under Land Use Development, please
discuss the potential for future utility/sewer/greenway installation. The IRT is approached
numerous times a year with encroachment requests and it would be beneficial to anticipate
these concerns now. Response: Expanded discussion about future land use development has
been added to Section 6.7.4.
17. Table 18, page 42: Livestock exclusion fencing is listed as a routine maintenance
component; however, it's unclear on the figures and design sheets where fencing will be
installed/is existing. Response: Livestock fencing will only be installed if the landowner keeps
cattle on the property. Figure 10 now shows where fencing would potentially be installed. Fencing
will be installed outside the conservation easement and will ultimately be the responsibility of the
landowner to abide by the easement restrictions.
18. Page 43, Jurisdictional Stream Flow: Please note that the 30-days of consecutive flow should
be viewed as a minimum threshold and not a goal. Streams that are currently listed as
perennial are expected to have nearly constant flow all year. Response: WLS understands that
30 days of consecutive flow is the minimal number of days for an intermittent stream and will use
gauges to monitor the entire growing season.
19. Page 43, Photo Documentation: Please include a statement regarding stability of crossings.
Response: A statement about crossing stability by photo documentation has been added to Section
8.1.
20. Section 9.1: This section discusses Enhancement Level II. Please confirm that all reaches
will involve a restoration approach. Response: This statement was outdated language from the
prospectus and has been removed. All stream reaches in this project are proposed as restoration.
21. Section 9.2: It's unclear which areas of vegetation are considered preservation areas.
a. Volunteer species on the approved planting list may be counted towards success after
being present for two years. Response: Section 9.2 has been updated to state that volunteer
species on the approved planting list may be counted towards success criteria after surviving
two years. Figure 11 had been added to show the planting and preservation zones inside the
conservation easement.
22. Section 10 and Appendix D: Please include the Long -Term Endowment calculation
spreadsheet which shows how the amount of $61,297 was calculated (annual monitoring,
signage replacement, travel, legal fees, cap rate, etc.). Response: The endowment calculation
spreadsheet has been added to Appendix D.
23. Section 12, Financial Assurances:
a. Performance and construction bonds are preferable to casualty insurance. Some
concerns to consider with the use of casualty insurance include: The assurances need to
be structured so that the timeframes in the effective coverage periods allow the IRT
time to conduct reviews of the as -built and monitoring reports. Ideally, coverage for the
different periods should only terminate once we have provided approval of the as -built
or monitoring reports. Related to this, planting completion poses a potential issue. The
timeframes included in the insurance policy that only cover construction through, for
example, April 1st would obviously be insufficient since the IRT would never approve
as -built until after the site work is complete (including planting). Response: WLS has
utilized both performance bonds and casualty insurance on projects and prefers casualty
insurance because of the longer and seamless coverage. WLS notes the concerns raised, but
can address those concerns with the specific insurance policy. The casualty insurance will be
structured to allow effective coverage periods that take into account review times for as -built

and monitoring reports. Also, a draft policy will be sent to you for review before execution.
Though the dates become more concrete once the policy is closer to being finalized, an
example schedule for Starker would be:
Construction: 10/15/21 to 6/15/23
MY1: 6/15/23 to 6/15/24
MY2: 6/15/24 to 6/15/25
MY3: 6/15/25 to 6/15/26
MY4: 6/15/26 to 6/15/27
MY5: 6/15/27 to 6/15/28
MY6: 6/15/28 to 6/15/29
MY7: 6/15/29 to 6/15/30
This schedule essentially has an extra year of monitoring coverage because MY1 would be in
2023, however the review of the report could go into early 2024. Also, coverage terminates
only after the USACE as -built approval is sent to the insurance company. Coverage can be
extended if needed, but this schedule fully accounts for construction and report review.
b. The financial assurance section does include a cost breakdown and a provision for
contingency/remedial action of $104,000, but this amounts to only 8% of the cost of
construction, which seems inadequate. This amount also diminishes across the life of
monitoring, so there is even less contingency funding available toward the end of the
project. Response: A review of recent mitigation plans' financial assurances (EPR, RES,
Wildlands) that are similar in size to Starker showed a range of $0 for contingency, 5.3%, and
8%. WLS proposes to keep the contingency at 8% of the construction costs, which are
conservatively priced. The contingency and monitoring costs should decrease across the life of
the project because the monitoring costs and need for maintenance/contingency decrease.
WLS has revised the contingency to keep the $104,000 for MY1-MY3, which are the most likely
years for maintenance. Then the policy would decrease in MY4 for the contingency. This will
be addressed during the review of the draft casualty insurance policy, but below is what the
coverage would look like:
MY1: 6/15/23 to 6/15/24 $304,000
MY2: 6/15/24 to 6/15/25 $275,429
MY3: 6/15/25 to 6/15/26 $246,858
MY4: 6/15/26 to 6/15/27 $197,487
MY5: 6/15/27 to 6/15/28 $148,115
MY6: 6/15/28 to 6/15/29 $98,744
MY7: 6/15/29 to 6/15/30 $49,373
24. Correspondence from USFWS and NCWRC is attached for reference.
USACE Comments (Casey Haywood):
1. Pg. 1 Intro: Please include site location and directions in the introduction. Response: The site
location and directions are in Section 2.1.
2. Pg. 19 3.6.3 Conditions Affecting Hydrology- It would be helpful discuss the size and type of
culverts in this section. Response: Culverts were changed to corrugated plastic pipe and the text
in Section 3.6.3 was updated.
3. Pg. 23 Table 8 Proposed Stream Mitigation Credits: Recommend indicating P1/P2
restoration for project reaches. Also recommend identifying P1/P2 reaches on the
Proposed Mitigation Map, Figure 9. Response: Table 8 has been updated and the reaches on
figure 9 have been updated to show P1/P2 restoration approaches.
4. Pg. 28 Section 6.2.1 Stream Design Reach Summary
a. S100- in section 3.6.3 Conditions Affecting Hydrology: S100 has one crossing being
replaced and one crossing was being added as a potential future crossing. There are no
discussion/details given for the culvert being replaced on this reach. Please provide
further detail (size/type). Response: Section 100 (North of I-40, below the crossing) gives

detail of the culvert being replaced. The existing farm crossing culvert at station 21+94.21 will
be replaced with a 48-inch corrugated pipe. There is a second break in the conservation
easement at station 37, this easement break is for a potential future crossing. No crossing will
be constructed in this location at this time.
b. It seems that many of the culverts being installed are smooth -wall HDPE. Please note
that HDPE is the least preferred of all hydraulic structure materials because the smooth
walls do not provide any roughness and do not hold substrate material. Response: The
proposed culverts were switched to corrugated plastic pipe.
5. Pg. 38 The narrative mentions both Piedmont/Low Mountain Alluvial Forest on narrow
stream floodplains and Mixed-Mesic Hardwood Forest (Piedmont Subtype) on adjacent
side slopes.
a. IRT encourages separating planting zones for wetlands, riparian areas, uplands, and
streamside assemblages. Recommend adding a figure/map that identifies the
planting zones. Response: Design sheets 28-31 have been updated to show separate
planting zones and Figure 11 has been added to the GIS figures to show the planting zones
within the conservation easement. Planting zones are approximate and final planting zones
will be determined post -construction based on site conditions.
b. Recommend adding wetland indicator status to the planting list on Table 16 and on
design sheet 3A. Response: The wetland indicator status has been added to Table 16. On
page 3J of the plan set you will find the same table.
6. Pg. 38 Section 6.6.1 Planting Materials and Methods:
a. Please note that vegetation planting/replanting must be conducted between November
15 and March 15 in order to be counted toward success for the subsequent growing
season. Response: WLS proposed that the planting be completed by the start of the growing
season in Catawba County, March 30th (per WETS data). The planting date has been updated in
Section 6.6.1.
b. Please include discussion in the text how you plan to treat/manage the existing fescue.
Response: In areas of undisturbed pasture WLS will assess fescue treatment options prior to
planting. This has been updated in Section 6.6.1 under the invasive species section.
c. During the September 30, 2020 site visit, IRT noted many black walnut species- Please
include discussion in the narrative that existing black walnut may be removed as
needed. It may also be helpful to add this to Table 18. Routine Maintenance Components.
Response: During construction black walnut species will be removed as much as possible. Black
walnut will be monitored post construction and treated if threating the success of planted
vegetation. Language has been added to Section 6.6.1.
7. Pg. 42-43 Section 8.1 Stream Performance standards
a. Please note that ER must be no less than 1.4 at any measured riffle cross-section on B-
type reaches and no less than 2.2 on C-type reaches where ER is altered to reference
condition through design and construction. Response: WLS notes these conditions and the
proposed design parameter can be found in Table 10.
b. Please add to the performance standards that BHR and ER at any measured riffle cross-
section should not change by more than 10% from baseline conditions during any
monitoring interval. Response: Section 8.1 has been updated with this language.
8. Pg. 46 Section 9.2 Vegetation Monitoring: What will the total planted acreage be for the site?
Response: The total planted acreage for the site will be approximately 27.7 acres. Final planting
zones will be determined based on as -built conditions.
9. Figure 8 and Table 9 stream lengths and credits do not match. Please update for consistency.
Response: The table has been removed from Figure 8.
10. Figure 10 Proposed Monitoring Map: Please mark location of photo points to include
crossings and culverts. Recommend adding a footnote to the figure if cross -sections are
being used as fixed photo points. Response: Photo points have been added to Figure 10.
11. Appreciate flow gauges on S101, 102, & 103 in the upper third of the reach.

Response: Thank you.
12. Appreciate that veg plot locations capture the various soil types and encompass portions of
the existing wetlands.
Response: Thank you.
13. Recommend adding some photos in the narrative. Response: Thank you for the suggestion and
we will add more photos into the narrative of our future mitigation plans. A photo log can be found
in Appendix H.
14. Please verify if the wetland groundwater gauge recommended on S100 during the
September 30, 2020 site visit was installed. Even though wetland credit is not being pursued
it is important to document existing conditions to demonstrate functional lift and ensure
that there is no net loss of wetlands as a result of restoration. Response: Since WLS is no longer
proposing wetland credit for the Starker site and therefore a wetland gauge was not installed after
the IRT site visit. WLS will add a wetland gauge now to capture winter 2021 and spring 2022 data
to ensure that there is no net loss of wetlands as a result of the stream restoration project.
WRC Comments (Travis Wilson):
1. The culverts are currently designed as smooth wall HDPE. CMP or RCP should be used for
pipe culverts. HDPE smooth wall pipes do not allow for any roughness and will not retain
substrate in the structure. Additionally, due to the smooth wall and common algae
accumulation these structures are not suitable for reptile and amphibian passage, which
is a concern with the potential future development mentioned in the mitigation plan.
Response: All proposed culverts were switched to corrugated plastic pipe.
2. "Future Crossing" located at approximate station 36+70 on S100. The preference would
be to include this crossing within the conservation easement, but as non -credited, in
order for the site to be reviewed and monitored if a crossing is eventually installed at this
location. Another option would be to include the design and installation of this crossing
during site construction. Allowing an easement break for a small crossing that could have
limited project impact review with the new culvert could result in an inadequate and
improperly installed structure that would result in adverse impacts upstream and
downstream into the credited portions of the mitigation site. Response: WLS prefers to
keep the easement break at the future location crossing instead of having the crossing as a non -
credited area within the easement. This crossing will only be developed in the future if
development occurs on the property. If development does occur, the crossing would be a
DOT/utility crossing and therefore would need to be designed and permitted to regulatory
specifications.
3. The downstream culvert at the end of S100 at station 67+90 is shown as a 36" CMP, much
smaller than the structures upstream on this reach. Unless prohibited due to a change in
landowners the preference would be to include a new properly sized and installed
crossing at this location. By replacing this structure with an upgraded structure, it will
reasonably preclude future problems associated with maintaining an old undersized
structure. Response: This culvert will be replaced and has been appropriately sized and set at
the correct elevations to promote stability and allow aquatic passage.
4. As for the I-40 culverts it looks like the channel design will repair the perched condition
by bringing the water surface elevation back into the culvert invert. Additional armoring
(below the substrate) of the outlet pool may be necessary to insure long-term stability.
Outlet stability and downstream stability is the primary concerns at the I-40 culverts, due
to the culvert length, slope, and watershed size aquatic organism passage is unlikely.
Response: Further plunge pool details and symbology have been added to the plan set to show
additional armoring. The additional armoring will also be clarified to the contractor.

DWR Comments (Erin Davis):
1. DWR appreciates the discussion of potential surrounding land use changes throughout
the document, including consideration of both rural and urban regional curves in the
stream design. Response: Thank you.
2. Page 19, Section 3.6.3 - Figure 8 shows an existing culvert within the proposed CE along
S200 (lower), but no culvert at the bottom of S200. This is inconsistent with the section
text. Also, please verify that the existing culvert(s) to remain are properly sized and in
good condition. Response: Figure 8 and the text have been updated. All culverts proposed to
remain will be replaced with properly sized corrugated plastic pipe.
3. Page 20, Section 4 - This section notes that functional objectives will be measured to
document project success. How will native woody debris be measured to document
biological function success? How do the functional design objectives in Table 6 relate to
the potential function uplift and measurement methods in Table 19? Response: WLS is not
proposing that level 4 and 5 functional categories are measured. The text in Section 4 has been
updated to reflect this.
4. Page 21, Section 4.1.1- This section states that restoration activities "will likely" provide
functional uplift within the Level 4 and 5 categories. Please clearly note whether these
categories will be included in monitoring to demonstrate project success. Response:
Section 4.1.1 has been updated to clearly state that any Level 4 and 5 function -based parameters
and monitoring activities will not be tied to performance standards nor are required to
demonstrate success for credit release. Any Level 4/5 uplift is implied and anticipated by the
restoration work.
5. Page 22, Table 7 - Under Landscape Connectivity, what animals drinking from the stream
are being referenced? Is this the best example of biology benefits from landscape
connectivity? Response: This section has been updated and now discusses the benefits of
aquatic and terrestrial species migration.
6. Page 23, Table 8 - Six of the nine reaches show a reduction in length from existing to
proposed creditable stream channel. Do the crossings account for the total differences or
will the proposed stream design result in a reduction of jurisdictional waters? Response:
Table 8 has been updated and now shows proposed uncreditable length in its own column. No
mitigation credits were calculated outside of the conversation easement.
7. Page 24, Section 6 - Please confirm the 9,965 LF of stream restoration referenced
includes 308 LF of non-credit stream restoration. Response: Table 8 has been updated and
shows there is a total of 9,656.73 SMCs and 464.61 uncredited length.
8. Page 29 - During the IRT prospectus site walk, we discussed our concern about post -
construction flow along S101, S102 and S103 where the streambed will be significantly
raised. Flow gauges should be located to demonstrate sufficient flow throughout these
reaches to meet performance standards. Response: Figure 10 shows a flow gauge located in
S101, S102 and S103. These reaches will be monitored to ensure sufficient flow and that
performance standards are met.
9. Page 29 - DWR appreciates the statement to minimize tree loss to the extent possible.
From DWR's perspective this does not need to include protecting black walnut (site- wide
comment). Response: WLS understands that black walnut should not be protected onsite. Black
walnut will be removed as needed during construction and monitored post -construction to
ensure it does not threaten successful establishment of planted trees.
10. Page 36, Section 6.4.1 - UT to Little Fisher River was identified as a reference quality
stream even with the disturbance noted? Response: Yes, the stream was reference reach
quality and a good representation of a single -thread channel with a smaller drainage area. The
disturbance was located downstream and was not included in the survey.
11. Page 37, Section 6.5 - There are no details or callouts in the design sheets for floodplain
interceptors or grass swales. Response: These areas are represented in the plan set with the

note, "stabilize connection into proposed channel." Additional details and design guidance will
be added to the design sheets for these areas when grading is complete.
12. Page 38-39, Tables 16 & 17 - Please include wetland indicator status for species in both
tables. Response: The wetland indicator status for each species has been added to both Tables
16 and 17.
13. Page 38, Table 16 - Were species present at the two stream reference sites considered in
developing the planting list? Please clarify whether the Mixed-Mesic Forest and Alluvial
Forest are two distinct target communities to be established within the project site or two
community types used to develop a single target community for the project site. If two
distinct target communities are proposed, Sheets 28 - 31 should show the different
planting zones. Response: WLS did not utilize a reference vegetation site. The planting list was
developed using relevant literature. There will be two distinct target communities and they are
now shown on plan sheets 28-31.
14. Page 38, Section 6.6.1- DWR maintains that March 15th should be the planting target end
date. Response: WLS proposed that the planting be completed by the start of the growing
season in Catawba County, March 30th (per WETS data). The planting date has been updated in
Section 6.6.1.
15. Page 39, Table 17 - The seed mix composition is primarily FAC/FACU. Given the existing
wetland and proposed floodplain reestablishment, will these species provide adequate
cover for the expected range of soil wetness conditions? Response: Table 17 species have
been updated and now include species that are FACW, FAC and FACU. This will promote
successful ground cover across a range of as -built conditions.
16. Page 39, Invasive Species - Will fescue be treated prior to or during construction?
Response: In areas of undisturbed pasture WLS will assess fescue treatment options prior to
planting.
17. Page 40, Section 6.7.1- On the as -built drawings, please callout depressional area
locations (including partially filled channel/ditch areas) greater than 14 inches deep.
Response: This language has been added to Section 6.7.1 and the depressional areas will be
called out on the as -built plans.
18. Page 43, Jurisdictional stream flow - Please clarify that is an annual performance
standard during the monitoring period. Response: Stream flow will be monitored and
assessed annually during the monitoring period.
19. Page 43, Section 8.2 - Recommend rephrasing so stems counted aren't restricted to 3- yr,
5-yr and 7-yr old trees. Replanted stems can count towards success two years after
planting. Response: Section 8.2 language has been updated so stem counted aren't restricted to
3, 5 and 7 year old trees and now can include replated and volunteers trees that are minimum
two years old.
20. Page 44, Section 9.1 - There are no Enhancement II reaches identified within this project.
Response: This statement was outdated language from the prospectus and has been removed.
All stream reaches in this project are proposed as restoration.
21. Page 46, Section 9.2 - Will there be undisturbed wooded preservation areas? Sheets 28 -
31 show the entire site being planted. Response: There will be a small amount of undisturbed
wooded preservation areas. These areas are now shown on the design sheets 28-31 and in
Figure 10. Final limits of preservation will be determined prior and during construction to
minimize removal of desirable mature trees.
22. Page 48, Table 19 - Under Establish Riparian Buffer Vegetation, please note the vigor
requirement. Response: The vigor (height) requirement has been added under Section 8.2 and
updated in Table 19.
23. Figure 9 - There is no callout for the removal of the lower S200 culvert shown on Figure
8. Please confirm. Response: There is a non-functional washed-out culvert at the downstream
end of S200 below the limits of construction. The culvert is not impeding stream flow and will
not be removed during construction. The callout in the design plans indicate this culvert will

remain. Figure 9 and Section 3.4.2 has been updated to reflect this.
24. Figure 10 -
a. Please show locations of proposed pressure transducers/crest gauges along S100
and S2OO to adequately demonstrate bankfull events. Response: The locations of the
crest gauges/transducers are now shown on Figure 10.
b. Please note or show locations of proposed fixed photo locations, including at
cross -sections, veg plots and stream crossings. Response: The photo point locations
have been added to the stream crossings and a note has been added stating that cross -
sections will also be used as photo point locations.
c. There appears to be no veg plots proposed in existing wooded areas. Since all
project streams are proposed for restoration, DWR would expect at least some of
these wooded areas to be disturbed/cleared during construction and require
replanting. Additionally, Sheets 28 - 31 show the entire conservation easement
being planted. Please confirm that the number of veg plots meet the minimum
monitoring criteria for the project planting area. If portions of the site will not be
planted, please identify those areas on Sheets 28 - 31 and include a total area
calculation reference in the mit plan narrative. Please redistribute veg plots to
adequately cover the project site, including adding a plot to the S100 section
below the second crossing north of I-40. Response: Plan sheets 28-31 have been
updated to show the approximate planting zones. Two more vegetation plots were
added for a total of 24 plots. A plot has been added below the second crossing north of I-
40. The vegetation plots were redistributed across the site to adequately cover the
project site.
25. Please add or modify a figure to show the locations of the two reference sites in relation
to the project site. Response: Reference reaches are now shown in Figure la.
26. Sheet 1A - Is there a difference between the two j-hooks or two rock steps listed in the
legend? Response: On the plan sheets the structures are drawn with their correct rock sizes. As
the stream width increases downstream, more rocks are added to the structures.
27. Sheet 3A - What species are proposed for the live staking and toewood live cuttings?
Response: Section 6.6.1 states that the species proposed for live staking are black willow and
silky willow.
28. Sheet 2H - Please confirm the proposed culverts will be buried in compliance with DWR's
GC-4134 general condition #11. Response: All proposed culverts have been updated and are
in compliance with the DWR's GC-4134 general condition #11.
29. Sheet 2K - Have proposed ditch plug locations been identified? Response: Ditch plugs are
used anywhere that the old channel crosses the proposed channel. The channel fill is shown in
the design sheets.
30. Sheet 2L - Please confirm there is only one ditch callout for the project, Sheet 17.
Response: There are two areas called out to be stabilized on Sheet 17 that are not a standard
ditch. The standard ditch detail was added just in case the contractor needed to utilize it with
guidance from the engineer. Additional details and design guidance will be added to the design
sheets for these water quality treatment areas when grading in complete. There are six water
quality treatment features for S100 and six water quality treatment features on S200 of active
erosion due to overland flow and highway ditches on I-40.
31. Sheet 4 - Please provide context and construction details for the Berm. I don't believe this
feature was mentioned in the plan narrative. Also, please callout the gravel drain feature
noted in Section 6.2.1. Response: Additional details and design guidance will be added to the
design sheets for the berm when grading is complete.
32. Sheets 4, 7, 9, 10, 17, 18, 19 - Please provide a typical detail(s) for the proposed "stabilize
connections". Based on the total number of these features, I'm assuming these are the
water quality treatment features noted in Section 6.5. Considering five of these features

originate at or beyond the easement boundary, DWR is concerned that they may act as a
simple rock lined conveyance which would bypass the reforested buffer meant to
improve water quality. DWR would like to see a design that as described in the narrative
will "dissipate energy and gradually step-down to the stable design streams," as well as
trap excessive sediment inputs. Response: Additional details and design guidance will be
added to the design sheets for these water quality treatment areas when grading in complete.
The designs will dissipate energy and gradually step-down these areas based on the slope and
drainage area that are in these areas to prevent gullying and erosion on the proposed stream.
33. Sheet 6 - Were alternatives to a smooth wall culvert considered? Are there any aquatic
passage concerns with using smooth wall HDPE? Response: The proposed culverts were
switched to corrugated plastic pipe.
34. Sheet 9 - Will the proposed constructed riffle adequately stabilize the easement break for
the landowner's current site use? Response: Yes, this crossing is a potential future crossing
that will not be utilized by the current landowner.
35. Design Sheets - Please show floodplain grading lines on the final plans. The narrative
notes a minimum 1.5 bankfull width floodplain design in most areas, which DWR
appreciates. DWR was also glad to see a gentler slope planned between floodplain and
terrace areas where feasible. Response: A preliminary limit of disturbance has been added to
the design plans to demonstrate a floodplain of an additional 1.5 bankfull widths on both sides
of the restored channel for excavated areas. This will be represented in the final grading plans.
All terrace slopes will be maximum 4:1 according to the typical sections on Sheet 2, unless local
constraints dictate a steeper terrace slope.
36. Design Sheets - Is any fencing proposed? If so, please include an overall fencing concept
plan with approximate locations of existing (to remain) and proposed fencing. Please
ensure there is adequate safe access points for regulatory agency and long- term steward
representatives to walk the site. Response: After the GIS figures you will now find a cattle
exclusion plan. This plan shows where the proposed fencing will be located as well as proposed
gate locations. Note: fencing will only be constructed at the direction of the landowner where
they intend to continue livestock grazing.
37. DWR really appreciated the level of detail and site specific discussion provided in this
project draft mitigation plan, particularly in the site constraints, regulatory
considerations, and project risks and uncertainties sections. Response: Thank you.
EPA Comments (Todd Bowers):
Note: It is understood that site visits may have been made by IRT members and other project
managers during the development of site feasibility to provide mitigation credit. In that regard,
I feel it is necessary to mention that I have not been on -site during this process and that my
comments may reflect a lack of on -site observation and evaluation.
1. General Comment: I really appreciate the sponsors consideration in addressing future
development near and/or adjacent to the site within the drainage area for both of the
main streams. Also appreciate the consideration of the potential widening of Interstate
40 in Catawba County as a very real possibility and that appropriate setbacks were
utilized. Response: Thank you.
2. General Comment: I almost overlooked the site photos (Appendix H) which some may
have been useful in the main body of the document to enhance the narrative. Great
illustration of the many stressors on and instabilities of the streams in the Starker
Project. Response: Thank you for the suggestion and we will plan to add more photos into the
narrative in future mitigation plans.

3. Section 1.3/Page 6: The project does not involve stream enhancement as all streams are
undergoing Priority 1 or 2 restoration. Response: Section 1.3 has been updated and now
clearly states that the mitigation approach will be restoration.
4. Section 2.1/Page 7: The lat/long for the site is erroneous. Response: The lat/long has been
corrected.
5. Section 3.4.2: Recommend reorganizing the stream nomenclature by addressing each
stream segment by a name and reach #. The additional crossing language is confusing as
there are multiple existing crossings along each main stem along with a new one that is
being proposed. Example: S1 Reaches 1-5, S2 Reach 1, S2 Reach 2, S2 Reach 3 instead of
"north of' or "below" crossings. Consider renaming tributaries as S3, S4 and S5. Clearly
identify each Reach segment on the maps of Figures 8 and 9. This will make all the tables
much easier to read too. Response: At this time WLS already has an approved PJD for this
project and have been told previously to not change the reach names after the PJD because it
makes permitting difficult for the USACE. We will take the suggestion into consideration on
future mitigation projects.
6. Figure 9: Stream lengths and credits do not match Table 8 in Section 5.1. Recommend
that Restoration Priority 1 and 2 approaches are highlighted in Figure 9. Response: The
table has been removed from Figure 9. Figure 9 as been updated to show should P1 and P2
approaches.
7. Section 3.6.3/Page 19: I appreciate the plain language that states that the 60-foot
crossing widths are based on future development of adjacent parcels and not due to
landowner preference. Response: Thank you.
8. Section 6.1/Page 25: As the anticipated floodplain is between 50 to 70 feet along most of
the project reaches, was the Conservation Easement width designed to encompass the
stream floodplains? Response: The Conservation Easement width was designed to encompass
the minimal buffer width based on current regulatory guidance. In most areas this will
encompass the proposed floodplain width. The very downstream ends of S100 and S200 are on
the Mull Creek geomorphic floodplain and the proposed easement will not encompass the
entire floodplain width.
9. Section 6.1/Page 25: Along with topsoil stockpiling for reapplication in P2 restoration
reaches is there any plan for soil amendments in these areas to promote vigorous plant
growth? Response: If needed soil testing will be conducted during construction to determine if
any soil amendments are needed to promote plant growth. The language in the relevant section
has been updated.
10. Table 10: I am a bit suspect of the listed Drainage Areas that don't seem to change much
moving downstream. I may have missed it, but I don't see design discharge (Max Q) listed
anywhere in this table. I understand design discharge is well addressed in later tables
(13 and 14). Response: The different reaches were broken into sub -reaches due to different
design approaches. Therefore, there is some repetitive drainage areas in the table between the
sub -reaches.
11. Section 6.2.1: Reiterating my comment on renaming the streams across the site to
remove confusion between text, tables and figures. Sequentially numbering the Reaches
along each main stem will reduce confusion with current and proposed crossings and
locations. Response: At this time WLS already has an approved PJD for this project and have
been told previously to not change the reach names after the PJD because it makes permitting
difficult for USACE. We will take the suggestion into consideration on future mitigation
projects.
12. Section 6.3.1/Page 32: Once again I appreciate the sponsors consideration of future
development along with regional curves and reference reaches when designing the
stream parameters. Response: Thank you.
13. Section 11/Page 49: "physical inspection of the site will take place at least once a year
throughout the post -construction monitoring period" is in conflict with Section 7 that

states: "Project will be monitored on a regular basis and a physical inspection of the
Project will take place at least twice a year throughout the post -construction monitoring
period until performance standards are met" Response: Section 11 has been updated to
state that a physical inspection of the site will happen minimum twice per year until the
performance standards are met.
14. Given the existing wetlands currently within the conservation easement and the
potential for flooding in the downstream reaches near Lyle Creek, I recommend adding
the wetland indicator status to each species being considered for planting. Recommend
considering differing planting zones (currently a single zone) if significant hydrologic
regimes exist or may develop along the riparian buffer within the easement.
Recommend adding a simpler vegetation planting map as a Figure since the plan sheets
were very cumbersome to view due to size. Response: The wetlands indicators have been
added to Table 16 and 17. The plan set and Figure 11 now show the different planting zones.
Please contact me if you have any additional questions or comments.
Sincerely,
Water & Land Solutions, LLC
Catherine Manner
Project Manager
Water and Land Solutions, LLC
7721 Six Forks Road, Suite 130
Raleigh, NC 27615
Office Phone: [phone]
Mobile Phone: [phone]
Email: [e-mail]

Version March 2020
AGREEMENT TO ESTABLISH THE WLS Catawba 01 UMBRELLA MITIGATION
BANK
IN Catawba RIVER BASIN WITHIN THE STATE OF NORTH CAROLINA
USAGE approval of this Instrument constitutes the regulatory approval required for
the WLS CATAWBA 01 UMBRELLA MITIGATION BANK 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 Water & Land Solutions, LLC, 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 is a suitable
mitigation bank site, and that implementation of the Mitigation Plan is likely to result in net
gains in wetland and/or stream functions at the Bank site, and have therefore approved
the Mitigation Plan;
THEREFORE, it is mutually agreed among the parties to this agreement that the
following provisions are adopted and will be implemented upon signature of this UMBI.
Section I: General Provisions
A. The Sponsor is responsible for assuring the success of the restoration, 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 sites are to restore, enhance, and preserve wetland
and/or stream systems and their functions to compensate in appropriate
circumstances for unavoidable wetland and/or stream impacts authorized by Section
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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 July 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: Geographic 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 Watershed Hydrologic Unit (HUC) 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.
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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.
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: Reporting
A. The Sponsor shall submit to the DE, for distribution to each member of the IRT,
an annual report describing the current condition of the Bank 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 Mitigation Credits
A. Description of credit classifications and provisions pertaining to the use of those
credits shall be provided in the Mitigation Plan 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
that is included in this banking instrument. 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).
7. Documentation of the establishment of the long-term endowment/escrow
account.
The Sponsor must initiate implementation of the approved Mitigation Plan 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 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: Accounting 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
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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
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 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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Section X: Site Protection
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.
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 Management
A. The Sponsor shall implement the long-term management plan as described in
the site- specific Mitigation Plan.
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
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achieved the performance standards in accordance with the mitigation plan and all
obligations under this MBI, the DE shall issue a close out letter to the Sponsor.
Section XIII: Miscellaneous
A. 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:
Water & Land Solutions, LLC
Mr. Adam McIntyre, Chief Executive Officer
7721 Six Forks Road, Suite 130
Raleigh, NC 27615
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Corps:
Ms. Kim Browning
U.S. Army Corps of Engineers
Wilmington District Mitigation
Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
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/ Ms. Holland Youngman
U.S. Fish and Wildlife Service
160 Zillicoa Street, Suite B
Asheville, NC 28801
NCWRC:
Mr. Travis Wilson & Ms. Olivia Munzer
North Carolina Wildlife Resources Commission
Rogers Lake Depot
1718 NC Hwy 56 W
Creedmoor, NC 27522
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
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NMFS:
Ms. Twyla Cheatwood
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 WLS CATAWBA 01 Umbrella Mitigation Bank In
Catawba County, North Carolina":
Sponsor:
By.
. Army Corps of Engineers:
Date:
By: Date:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The WLS CATAWBA 01 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: Date:
National Marine Fisheries Service:
By: Date:
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.)
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