20001024 Ver 1_General Correspondence_20080311

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Restoration & C<msc rvati~ ~n
March 5, 2008 ~(2 D
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Mr. David Lekson, Chief ~ ~ ti~~~
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Washington Regulatory Field Office MPS 1 DER°~~~R~R.~c~
US Army Corps of Engineers o~NaN s~~~wP
PO Box 1000 ~~j~NOS
Washington, North Carolina 27889-1000
Subject: Bear Creek-Mill Branch Mitigation Bank/USACE Action ID Number 199910581
Dear Mr. Lekson:
Thank you for arranging and participating in the meeting with other members of the
MBRT, Randy Turner, and me on February 20, 2008 to discuss the closure and final credit
release at the Bear Creek-Mitigation Bank (the Site). We are in receipt of your letter of
February 25, 2008, in which you summarize the MBRT meeting and identify the deliverables
that you anticipate receiving from Restoration Systems, LLC (RS) related to the Site credit
releases and the NCDOT right of way impact on the Site property. With the impending need for
mitigation credits from the bank by NCDOT to offset impacts that will result from the Goldsboro
Bypass (R-2554) and the limited amount of time available, we hope to resolve the outstanding
issues associated with the Site as soon as possible.
The purpose of this letter is to provide the MBRT with information specifically identified
in your letter with a overview of various aspects of the Site and to propose for the release of
mitigation credits. Topics covered include the identified issues, tables of Mitigation Credits, and
proposed future activities.
F_,eoScienee Repor*_ and Final Composition of Bank Credits
As a result of various comments and questions about the areas of standing water on the
site, RS engaged EcoScience (an environmental consulting company) to estimate the amount
present. Based on their report of February, 2008, there are approximately 7.39 acres within the
bottomland hardwood/swamp forest restoration area that fall under the category of Open Water.
As indicated in the report, the area is distributed over five locations, the largest being
approximately 5.32 acres and the smallest being approximately 0.07 acre. This total area was
estimated as the maximum amount present and was not based on an actual delineation and
accurate survey. The study most likely overestimated the area of Open Water for several
reasons.
Pilot Mill • 1 101 Haynes St., Suite 21 I • Raleigh, NC 27(~(~ • www.restorationsystems.com • Phone [phone] • Fax [phone]

Mr. Lekson
Page 2
March 5, 2008
1. The study was conducted in the middle of winter, when the least amount of vegetation is
present. Had the study been conducted later in the growing season, the azeas of water
would likely be more reflective of the Site conditions.
2. There is insufficient data on the depth of the pools of water; thus it is impossible to
determine if these areas are devoid of vegetation because of their depth or because of
animal activity.
3. The study was not based on precise methodology. It was not delineated by traversing all
open water-wetland boundaries, flagging them, and then locating them by accepted
survey methods.
Because of the potential inaccuracies associated with the estimate of Open Water at the
Site, RS requests the opportunity to reevaluate the areas throughout the 2008 growing season. At
that time, vegetation growth will be visible and should result in a more accurate result. Also, we
propose to accurately delineate and flag the Open Water/wetland boundary and map it with
accepted survey methods and equipment.
Until the area of Open Water is accurately measured, we propose the following interim
credit allocation and release, based on the EcoScience study and five years of monitoring data.
Please note that this table does not reflect the credits that have been previously debited from the
Bank.
T e Acres MBI Ratio Credits
Restoration 81 1:1 81
Enhancement 34 2:1 17
Preservation 303 5:1 60.6
U land 23 ..... .....
O en Water 7~ ..... .....
Total 448 165.6** 158.6***
* Tentative amount, final determination to be made during August, 2008
** Based on MBI
*** Proposed interim credit release
The area in Figure 1 of the monitoring reports identified as the "Bear Creek Neuse River
Regional Wetland Corridor" is intended to depict the relationship of the restoration/enhancement
area adjacent to Bear Creek and the preservation areas adjacent to the Neuse River. Perhaps the
nomenclature is confusing, but the intent is to show how the Bear Creek-Mill Branch contribute
to improved water quality in the lower Neuse River and adjacent estuaries. The azea depicted
has no "official" status.

Mr. Lekson
Page 3
March 5, 2008
Removal of Portion of Bank for NCDOT Right of Way
In order to construct the Goldsboro Bypass (R-2554), NCDOT has determined that it
needs 5.88 acres of the Site for right of way. The area needed is depicted in the following table:
T e Acres MBI Ratio Credits
Restoration 0 1:1 0
Enhancement 3.00 2:1 1.50
Preservation 2.56 5:1 0.51
U land 0.32 0
Total 5.88 2.01
RS intends to cooperate with NCDOT's request to transfer the property but will need to
have the MBI modified to reflect the reduction in acres and the associated credits. Therefore, we
request that the MBRT approve the modification of the Instrument prior to or concurrent with the
transfer of the property.
However, a perpetual Conservation Easement was recorded on the property in 2001 and
according to the terms of the easement, "runs with the land and is enforceable by Grantee (North
Carolina Coastal Land Trust) against Grantor (RS), Grantors successors and assigns, lessees,
agents and licenses." The easement also stipulates that "Whenever all or part of the Property is
taken in the exercise of eminent domain so as to substantially abrogate the Restrictions imposed
by this Conservation Easement, Grantor and Grantee shall join in appropriate actions at the time
of such taking to recover the full value of the taking, and all incidental and direct damages due to
the taking." Thus it appears that the easement, although "running with the land," could be
removed by joint agreement between the Coastal Land Trust and NCDOT if they agree and if the
Coastal Land Trust is compensated. We have been in contact with the Coastal Land Trust and
made them aware of the issue, which they are evaluating. It would be most efficient for NCDOT
to discuss the issue compensation directly with the Coastal Land Trust.
In summary, RS proposes the following actions and requests approvals from the MBRT:
1. RS will reassess the amount of Open Water on the site during the growing season of 2008
and will provide the MBRT with the results of the study before the end of the year.
2. In the meantime, RS requests the release of 158.6 credits until the proposed Open Water
determination is completed.
3. If that study indicates that there are less than 7.39 acres of Open Water, then additional
credits may be released by the MBRT to reflect the results of the study.
4. The MBI should be modified to reflect the taking of 5.88 acres of the Site for right of
way for the Goldsboro Bypass (R-2554) pending consent of the Coastal Land Trust.

Mr. Lekson
Page 4
March 5, 2008
I trust the information provided here is sufficient and that these issues can be resolved in
a timely manner. Please feel free to contact me by phone at 919-755-9490 or via email at
[e-mail] if you have any questions.
'ncerely,
David H. Schiller, Manager
Contract Affairs
cc: Mr. John Dorney, N. C. Division of Water Quality
Mr. Eric Kulz, N. C. Division of Water Quality
Ms. Kathy Matthews, U. S. Environmental Protection Agency
Mr. Howard Hall, U. S. Fish and Wildlife Service
Mr. Ron Sechler, National Marine Fisheries Service
Ms. Molly Elwood, N. C. Wildlife Resources Commission
Ms. Maria Tripp, N. C. Wildlife Resources Commission
Ms. Camilla Herlevich, N. C. Coastal Land Trust
Mr. George Howard, Restoration Systems
Mr. John Preyer, Restoration Systems
Mr. Randy Turner, Restoration Systems