Approval Letter_ThreeCreeksFarm_SAW-2019-02341_Signed

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343

May 17, 2024

Regulatory Division

SUBJECT: Approval of the Three Creeks Farm Mitigation Bank (MB) Instrument and
Final Mitigation Plan, Action ID SAW-2019-02341

Mr. Joseph Long
Three Creeks Mitigation, LLC
111 Main Avenue
Brookings, South Dakota 57006

Dear Mr. Long:

This letter is to inform you that the Wilmington District, Corps of Engineers (Corps)
has reviewed and approved the Three Creeks Farm Mitigation Bank Instrument and
Final Mitigation Plan, Action ID SAW-2019-02341, dated March 2024. The final signed
UMB instrument is enclosed for your reference. The Nationwide Permit 27 authorization
required for work within waters of the United States associated with the restoration and
enhancement of aquatic resources at the mitigation bank site is currently being
processed and not included with this authorization.

As bank sponsor you are required to comply with the approved Three Creeks Farm
MB Instrument and Final Mitigation Plan, and the Corps’ regulations regarding
compensatory mitigation (33 CFR 332). Please note that no credit release is approved
with this correspondence. Once you have completed all actions required by Section VII
of the approved instrument and mitigation plan for the initial release of credit, please
submit documentation to this effect to our office along with a request for the credit
release that specifies the amount and type of credits to be released.

The bank sponsor (Three Creeks Mitigation, LLC) accepts all risk, liability, and
responsibility for the success of all mitigation activities associated with the approved
mitigation bank site. In accordance with the approved Final Mitigation Plan, the bank
sponsor must prepare and submit annual monitoring reports to document whether the
wetland and stream restoration and enhancement areas for the project site meet the
necessary interim and final performance standards. When credits are debited from the
mitigation site, the bank sponsor must provide the Corps with an updated ledger form
identifying the purchaser of the credits, the project name, the permit number, and the

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number and type of credits to be debited. When all stream and wetland credits have
been consumed, no more credits may be sold from this mitigation site.

Please note that this electronic copy provided to you via email is your official
copy. Should you wish to receive a paper copy of this correspondence, please contact
us. Thank you for your time and cooperation. If you have any questions, please contact
me by email at [e-mail] or by phone at [phone].

Sincerely,

Todd Tugwell
Chief, Mitigation Branch

Enclosure

cc (by email):
Tommy Fennel, Regulatory Division Chief
NCIRT Distribution List

4875-1046-7749
AGREEMENT TO ESTABLISH THE THREE CREEKS FARM MITIGATION BANK
IN YADKIN RIVER BASIN WITHIN THE STATE OF NORTH CAROLINA

U.S. Army Corps of Engineers (USACE) approval of this Instrument constitutes the
regulatory approval required for the Three Creeks Farm 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 USAGE 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 Mitigation Banking Instrument (MBI) is made and entered into on the day of
April 30, 2024, by Three Creeks Mitigation, LLC, hereinafter Sponsor, and the
USACE, and each of the following agencies, upon its execution of this MBI; the
Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service
(USFWS), the North Carolina Wildlife Resources Commission (NCWRC), the State
Historic Preservation Office (SHPO) and the North Carolina Division of Water
Resources (NCDWR). The USAGE, together with the State and Federal agencies
that execute this MBI, are hereinafter collectively referred to as the lnteragency
Review Team (IRT).

WHEREAS the purpose of this agreement is to establish a 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 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 MBI.

Section I: General Provisions

A. The Sponsor is responsible for assuring the success of the restoration, creation,
enhancement and preservation activities at the Bank site, 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 Bank site is to restore, enhance, create and preserve wetland and
stream systems and their functions to compensate in appropriate circumstances for
4875-1046-7749
unavoidable wetland and stream impacts authorized by Section 404 of the Clean
Water Act permits and or Section 10 of the Rivers and Harbors Act permits in
circumstances deemed appropriate by the USAGE after consultation, through the
permit review process, with members of the IRT.

C. Use of credits from the Bank to offset wetland and 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 the
mitigation bank site. 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 Bank is
authorized to provide compensatory mitigation required by DA permits. The GSA for this
Bank shall include the Yadkin River Basin Hydrologic Unit Code (HUC 03040103) 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.
4875-1046-7749
Section Ill: Mitigation Plan

The 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 the approved Mitigation Plan.

B. The Sponsor shall monitor the Bank Site as described in the approved
Mitigation Plan, until such time as the IRT determines that the performance
standards described in the Mitigation Plan have been met.

C. 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 and the
condition of the Bank Site in relation to the performance standards in the
Mitigation Plan. The Sponsor shall provide to the DE any monitoring reports
described in the Mitigation Plan.

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 MBI.

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,
and may, at any time, after consultation with the Sponsor and the IRT, direct the
Sponsor to take remedial action at the Bank site. Remedial action(s) required by
the DE shall be designed to achieve the performance standards as specified in
the Mitigation Plan. 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.
4875-1046-7749
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
been achieved.

B. A credit release schedule shall be provided in each site-specific Mitigation Plan
that are included in this bank. The release schedule will list all of the proposed
credit releases and any performance standards associated with those releases.

C. In general, the initial allocation of credits from any site included as part of this bank
shall be available for sale only after the completion of all of the following:

1. Execution of this MBI by the Sponsor, the DE, and other agencies eligible for
4875-1046-7749
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 endowmenUescrow
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
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.
4875-1046-7749
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 will be detailed in the site-specific Mitigation
Plan. 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 MBI. 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.

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 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
4875-1046-7749
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 Plan.

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.

Southern Conservation Trust
305 Beauregard Blvd.
Fayetteville, GA 30214
Chris Doane, President/CEO
Phone [phone]

B. The long-term management plan will include a list of annual maintenance,
monitoring, and/or repair activities for the/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.

Section XII: Default and Closure

A. It is agreed to establish and maintain the Bank site until (i) credits have been
exhausted or banking activity is voluntarily terminated with written notice by the
4875-1046-7749
Sponsor provided to the DE and other members of the IRT; and (ii) it has been
determined and agreed upon by the DE and IRT that the debited Bank site has
satisfied all the conditions herein and in the Mitigation Plan. If the DE determines
that the Bank site is not meeting performance standards or complying with the
terms of the instrument, appropriate action will be taken. Such actions may include,
but are not limited to, suspending credit sales, adaptive management, decreasing
available credits, utilizing financial assurances, and terminating the instrument.

B. As projects developed as part of this bank are specifically intended to restore
streams and/or wetland systems that are subject to periodic flooding and drought
conditions, they should be designed to withstand any such events that are
anticipated to occur in the natural environment. This is not limited to routine or
minor flooding or droughts, but also specifically includes flooding events resulting
from hurricanes, or other extreme weather events as well as extended periods of
drought. Additionally, this includes conditions resulting from sea level rise that
adversely impact projects that are part of this bank.

C. Any delay or failure of Bank Sponsor shall not constitute a default hereunder if and
to the extent that such delay or failure is primarily caused by any act, event or
conditions beyond the Sponsor's reasonable control and significantly adversely
affects its ability to perform its obligations hereunder including: (i) acts of God,
subject to the exceptions contained in Paragraph B above, lightning, earthquake,
fire, landslide, or interference by third parties; (ii) condemnation or other taking by
any governmental body; (iii) change in applicable law, regulation, rule, ordinance
or permit condition, or the interpretation or enforcement thereof; (iv) any order,
judgment, action or determination of any federal, state or local court, administrative
agency or government body; or (v) the suspension or interruption of any permit,
license, consent, authorization or approval. If the performance of the Bank
Sponsor is affected by any such event, Bank Sponsor shall give written notice
thereof to the IRT as soon as is reasonably practicable. If such event occurs before
the final availability of all credits for sale, the Sponsor shall take remedial action to
restore the property to its condition prior to such event, in a manner sufficient to
provide adequate mitigation to cover credits that were sold prior to such delay or
failure to compensate for impacts to waters, including wetlands, authorized by
Department of the Army permits. Such remedial action shall be taken by the
Sponsor only to the extent necessary and appropriate, as determined by the IRT.

D. At the end of the monitoring period, upon satisfaction of the performance
standards, the Sponsor may submit a request to the DE for site close out. The DE,
in consultation with the IRT, shall use best efforts to review and comment on the
request within 60 days of such submittal. If the DE determines the Sponsor has
achieved the performance standards in accordance with the mitigation plan and all
obligations under this MBI, the DE shall issue a close out letter to the Sponsor.

4875-1046-7749
Section XIII: Miscellaneous

A. Modification of this MBI 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 MBI 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 MBI 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 MBI shall be
construed as if such invalid, illegal or unenforceable provision had not been
contained herein.
E. This MBI shall be governed by and construed in accordance with the laws of
North Carolina and the United States as appropriate.

F. This MBI 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 MBI 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:
Three Creeks Mitigation, LLC
Joseph B. Long, Managing Board Representative
111 Main Avenue
Brookings, SD 57006
and
Adam V. McIntyre, Project Manager
[phone]

Corps:
Mr. Steven Kichefski
U.S. Army Corps of Engineers
Regulatory Division
151 Patton Avenue Suite 208
Asheville, NC 28801
4875-1046-7749
USEPA:
Mr. Todd Bowers
Wetlands Section -
Region IV Water
Management Division
U.S. Environmental Protection
Agency 61 Forsyth Street, SW
Atlanta, Georgia 30303

USFWS:
Mr. Byron Hamstead
U.S. Fish and Wildlife Service
P.O. Box 33726
Raleigh, NC 27606-3726

NCWRC:
Mr. Travis Wilson
North Carolina Wildlife Resources Commission
1718 Highway 56 West
Creedmoor, NC 27522

NCDWR:
Mrs. Stephanie Gross
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
4875-1046-7749
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Three Creeks Farm Mitigation Bank In Davidson
County, North Carolina":

Sponsor: THREE CREEKS MITIGATION, LLC

By:

U.S. Army Corps of Engineers:
By:
Date:

Date:
04/30/2024
17 MAY 2024
4875-1046-7749
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Three Creeks Farm Mitigation Bank, Yadkin River
Basin in the State of North Carolina":

U.S. Environmental Protection Agency:
By:

U.S. Fish and Wildlife Service:
By:

N.C. Division of Water Resources:
By:

N.C. Wildlife Resources Commission:
By:

NC State Historic Preservation Office:
By:

Date: __________________

Date: __________________

Date: __________________

Date: __________________

Date: __________________

4875-1046-7749
List of Appendices
Appendix A: Geographic Service Area Map
Appendix B: Mitigation Plan (The plan includes 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.)
Sources: Esri, HERE, Garmin, Intermap, increment P Corp., GEBCO, USGS,FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, EsriJapan, METI, Esri China (Hong Kong), (c) OpenStreetMap contributors, and theGIS User Community
Service Area MapThree Creeks Farm Mitigation BankYadkin 03040103Davidson County, North CarolinaJune 2022 ³
7 0 73.5
Miles
Legend
Conservation Easement
Service Area Yadkin 03 (03040103)
Appendix
A