20070747 Ver 1_Mitigation Bank Proposal_20080710

LAW OFFICES OF
F. BRYAN BRICE, JR.
ATTORNEYS AT LAW
19 W. HARGETT ST.
SUITE 600
RALEIGH, NC 27601
July 9, 2008
Mr. Eric Kulz
Environmental Senior Specialist
NCDENR-DWQ
Wetlands Unit
1650 Mail Service Center
Raleigh, NC 27699
Re: Flat Swamp MBI
Dear Eric,
Telephone: [phone]
Facsimile: 919-832-0301
bryan@,attvbryanbrice.com
Pursuant to our previous meetings and discussions with you, other DWQ personnel and EEP,
please find enclosed our draft mitigation banking instrument (MBI) for the 386 acre Flat Swamp
mitigation bank in Craven County outside Dover, NC. As you know, we wish to establish and offer
nutrient and/or buffer credits to meet both private sector and State/DENR needs from this large scale
restoration project/mitigation bank.
Through this MBI process, we are initially seeking approval for 551,661.95 pounds of
nitrogen offsets for applicable needs in the Neuse Basin. We would like to reserve the right to add
State Neuse Buffer Credits in accordance with the pending stream determination in process by the
Washington Regional Office. However, we do not want to delay the review and approval process on
the nitrogen offset portion of the bank as the Regional Office is backlogged and will likely not be
able to perform the stream determination until late July or early August. Per our conversations with
you and Cyndi Karoly, we are sensitive to the fact that there will be NO double dipping of credit
values, as Flat Swamp is also an approved 404/401 wetland and stream restoration bank, which has
been fully approved through the MBRT process (of which DENR is a signatory member). In
summary, any State nutrient offset or buffer credits assigned will be accounted for by allotting
acreages specific to each credit value. These values will be tracked in an accounting ledger that will
appropriately debit values as they are purchased from the federal MBI ledger and/or State ledger,
which is provided herein.
In essence, Flat Swamp is a regionally significant, large scale restoration project providing
exceptional water quality, environmental and ecological values. All of the regulators who have
reviewed the project believe it will provide exceptional water quality enhancement within the Neuse
basin. The project sponsors will convert the current agricultural fields back to its natural, forested
wetlands state, restoring the historic stream corridors and connection to Flat Swamp Creek and its
headwaters, which flows into the Neuse. We believe that Flat Swamp represents a model water
quality enhancement project including nitrogen reduction and buffer restoration pursuant to the
Neuse River rules.
JUL T 0 2008
WETLANDS AND STORMWATER BRANM

July 9, 2008
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We look forward to finalizing the plan review and MBI with DWQ. Please do not hesitate to
call if you have any questions or concerns.
Sincerely,
i�BranBrice, Jr.
cc: Mr. Bill Gilmore, EEP

09-0? ?j
T H E FLAT SWAM P M I T1 GAT I ON BAN K
FLATS WAMP RIPARIAN BUFFER AND NUTRIENT
MITIGATIONBANKING INSTRUMENT
Cra?en County, North Carolina
PrWai By.
GreenVest/Flat Swamp, L.L.C.
1001 Capability Drive, Suite 312
Raleigh, NC 27606
July 2008
[-- R-Pi D?
J U L 1 0 2008
DENR -'WAfEk UUAU I ?
yWErLANDS AND SToRMWATER BRANCH

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Table of Contents
1. PREAMBLE .................................................................................................................................... 3
II. AUTHORITIES .............................................................................................................................. 3
III. ESTABLISHMENT OF BANK PARCEL(S) ............................................................................3
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S) .......................................... 5
V. OPERATION OF BANK ..............................................................................................................6
VI. OTHER PROVISIONS ...............................................................................................................7
Appendix A- Bank Parcel Development Package ................................................................................10
Appendix B - Ledger .......................................................................................................................... I l
Appendix C - Conservation Easement ............................................................................................... 12
Appendix D - 2002 MBI .................................................................................................................... 13
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FLAT SWAMP RIPARIAN BUFFER AND NUTRIENT
MITIGATION BANKING INSTRUMENT
' I. PREAMBLE
This Nitrogen Offset Mitigation Banking Instrument, regarding the
' establishment, use, operation, and maintenance of the Flat Swamp Riparian
Buffer and Nitrogen Offset Mitigation Bank (Bank) is made and entered into
by and among GreenVest/Flat Swamp, L.L.C. (GV) and the North Carolina
' Department of Environment and Natural Resources -Division of Water
Quality (DWQ).
' The purpose of the Bank is to improve water quality through the restoration
of an historic coastal plain, headwater stream system and forested riparian
buffer habitat within the Neuse River Basin in the State of North Carolina,
' United States Geological Survey (USGS) including Hydrologic Unit Code
(HUC) 030202. The goal of improving water quality will be achieved by 1)
restoring an historic headwater stream system 2) restoring hydrologic
' connectivity to Flat Swamp Creek and the Neuse River and 3) restoring 386
acres of agricultural fields to their former wetland condition inclusive of
15,985 linear feet of stream channel and 242.7 acres of forested buffer area
' dedicated to nitrogen offset credits. This project was approved as a wetland
and stream mitigation bank (see Appendix D) within a mitigation banking
instrument (MBI) approved August 16, 2002.
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ocuments o
ject
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s to establish nitrogen offset credits, provide
mitigation for nutrient offset payments within the Neuse River Basin, and/or
' to sell resulting credits to third parties public or private.
' II. AUTHORITIES
The Bank will be used to provide nitrogen offset mitigation in accordance
' with the requirements of 15A NCAC 2B .0234 (Wastewater Discharge
Requirements), 2B .0235 (Basinwide Stormwater Requirements), 15A
NCAC 2H .0506(h) (NC Stream, Wetland and Buffer Mitigation), 15A
NCAC 2B .0233 (Meuse Buffer Rule), 15A NCAC 2B .0235 (Meuse
' Nutrient Sensitive Water Management Plan) 2B .0240 (Nutrient Offset
Payments) under such authority as established in SL 2007-438 and any
amendments thereto. All activities will be consistent with rules adopted by
' the Environmental Management Commission and all other applicable
authorities.

III. ESTABLISHMENT OF BANK PARCEL(S)
' A. The aforementioned tract of land will be subject to a conservation easement
or restrictive covenant as described in Section III-E ('Parcel") included
herein as Appendix C. Appendix A contains the Bank Parcel Development
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' Package (BPDP), including detailed information concerning site location,
existing conditions, proposed restoration activities, monitoring and
maintenance plans, financial assurances (III(D)), and associated mitigation
' potential (including credit generation, service area, and accounting as
appropriate for each regulatory authority cited above).
' B. GV agrees to perform all necessary work, in accordance with the provisions
of this Banking Instrument, to establish and/or maintain riparian buffer and
nitrogen offset buffer until it is demonstrated to the satisfaction of the DWQ
' that the restored property complies with all conditions contained herein, or
until all credits are sold, whichever is later.

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C. GV will obtain all appropriate environmental documentation, permits or
other authorizations needed to establish and maintain the Bank. This
Banking Instrument does not qualify or substitute for such authorization.
D. Financial Assurance Requirements: Following approval of the BPDP,
GreenVest/Flat Swamp, LLC shall provide a Performance Bond, Letter of
Credit or other form of financial assurance acceptable to DWQ from a
surety that is rated no less than an "A-" as rated by A.M. Best. The Financial
Assurance amount shall be 125% the estimated cost for implementation of
the restoration plan included in the BPDP, but no less than $100,000.00.
After completion of the construction, a Monitoring Bond will be substituted
for the initial assurance vehicle. The Penal Sum of said Monitoring Bond
shall be for two times the estimated cost to implement the monitoring and
maintenance plan but no less than $100,000.00 in amount. The Monitoring
Bond shall be in effect for a period of five (5) years.
E. Real Estate Provisions: Prior to the certification of any credits, GV shall
record a permanent conservation easement(s), or record restrictive covenants
to the deed(s) on all Bank Parcels to provide protection to the restored
riparian buffer from activities that would impair its ability to provide
nutrient abatement to waters of the Neuse River Basin. The form of the
conservation easement or restrictive covenants shall be consistent with the
standards employed by the State of North Carolina in the protection of
restored riparian buffers and shall be approved by the DWQ prior to the
certification of any credits. GV shall not grant additional easements, right of
way, or any other property interest in or to the project areas without the
written consent of the DWQ or its designee. In the case of a conservation
easement, GV will hold the easement until all credits are released
from the Bank Parcel. At the conclusion of Bank activities, the conservation
easement(s) may be permanently transferred to a DWQ approved land trust
or non-profit group to be held in perpetuity. Please refer to Appendix C for
a sample conservation easement.
F. As-Built Reports: GV agrees to submit an as-built report for each Parcel
within 30 days after completing the establishment of the buffer. The as-built
report will describe in detail any deviation from the BPDP. In addition, the
as-built report will document finished grades, and surface and groundwater
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t elevations, as appropriate.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)

' A. Maintenance Provisions: GV agrees to perform all necessary work to maintain
the Parcel(s) consistent with the maintenance criteria established in this
instrument. GV shall continue with such maintenance activities until all credits

' are sold or the Parcel is closed. Deviation from the approved BPDP is subject to
review and written approval by DWQ or its designee
.
B. Monitoring Provisions: GV agrees to perform all necessary work to monitor the
' Bank to demonstrate compliance with the Success Criteria established in this
Banking Instrument specific to the conditions of the attached BPDP.
' C. Vegetative Success Criteria: Vegetative Success Criteria will be based upon the
density and growth of character tree species. "Character Trees" are defined as
planted or volunteer species identified from a survey of local vegetation on less
' degraded sections of the specified stream and from reference literature that
details native species. A list of Character Tree species for this project is detailed
in a planting plan and planting schedule within the BPDP. Vegetative Success
' Criteria will be based upon guidelines set forth in the Guidelines for Riparian
Buffer Restoration prepared by the North Carolina Ecosystem Enhancement
Program (or subsequent updated versions of this Guidance in place at the date of
acceptance of a BPDP). Success is defined as the survival of an average density
of 320 Character Trees per acre. Planted species must account for a minimum of
30 percent of the above densities. If vegetative success criteria are not achieved
based on acreage density calculations from combined monitoring plots over the
entire restoration area, supplemental planting may be performed with tree
species approved by DWQ. Supplemental planting may be performed as needed
' until vegetative success criteria are met. No quantitative measurements of herb
assemblages will be required to meet the vegetative success criteria. The
quantity of monitoring plots will be determined in accordance with The
' Carolina Vegetative Sampling Protocol (Levels I & II), such that no more than 2
percent of any one Parcel is encompassed in monitoring plots. Visual estimates
of the percent cover of herbaceous species and photographic evidence will be
' reported for informational purposes. Visual observation of streambank stability
will also be made. Areas of significant bank erosion will be repaired through
matting and/or vegetative planting.
' D. Monitoring Reports: GV shall submit to the DWQ an annual monitoring report,
no later than December 31 each year for five (5) years after the first full growing
season, describing the conditions of each Bank Parcel and relating those
' conditions to the success criteria. Reports will be submitted annually and shall
contain the following:
1. A U.S. Geological Survey map showing location of the Bank;
' 2. A detailed narrative summarizing the condition of the Bank and all
regular maintenance activities;
' 3. Appropriate topographic maps showing location of sampling plots,
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' permanent photo points, location of transects, etc.;
4. Monitoring data, including specific vegetative counts and photographs;

' and
5. A copy of the Bank credit/debit led
er
g
.
E. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
' success criteria described in this instrument, GV shall develop necessary
contingency plans and implement appropriate remedial actions for the Bank in
coordination with the DWQ or designee. If the DWQ determines that the Bank
' is operating at a deficit (i.e., GV is selling or transferring credits not yet
available), the sale/transfer of credits will immediately cease, and the DWQ, in
consultation with GV, will determine what remedial actions are necessary to
correct the situation.
' V. OPERATION OF BANK
A. Nitrogen Abatement of Restored Riparian Buffer: GV and DWQ
' agree that the pounds of nitrogen offset per acre of restored riparian
buffer shall be two thousand two hundred and seventy three point two
(2,273.2 lbs/acre) as established by the DWQ and applied to existing
' riparian buffer-based nitrogen abatement sites across the State of
North Carolina.
' B. Establishment and Release of Credits: Upon submittal of all
appropriate documentation by GV, and subsequent approval by DWQ
or its designee and unless sooner approved by DWQ, it is agreed that
' the mitigation credits associated with this Bank will become available
for sale to a third party in accordance with the following schedule.
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Table 1 -Credit Release Schedule
Task Project Milestone % Credit
Available
for Sale
1 Bank Parcel Development Package Approved by DWQ, Conservation
Easement or Restrictive Covenants Recorded and Performance Bond
Purchased 20
2 Mitigation Site Earthwork, Planting and Installation of Monitoring
Devices Completed 20
3 Approval of As-Built Report and Monitoring Bond Purchased 10
4 Submit Monitoring Report #1 to DWQ (meets success criteria) 10
5 Submit Monitoring Report #2 to DWQ (meets success criteria) 10
6 Submit Monitoring Report #3 to DWQ meets success criteria 10
7 Submit Monitoring Report #4 to DWQ (meets success criteria) 10
8 Submit Monitoring Report #5 to DWQ (meets success criteria 10
Total 100%
C. Projects Eligible to Use the Bank. Projects eligible for utilization of
the credits are those requiring authorization under the requirements of
15A NCAC 2B .0234 (Wastewater Discharge Requirements), 213
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' .0235 (Basinwide Stormwater Requirements), and 02B .0242
(Mitigation Program for Protection and Maintenance of Existing
' Riparian Buffer) 15A NCAC 2H .0506(h) (NC Stream, Wetland and
Buffer Mitigation), 15A NCAC 2B .0233 (Meuse Buffer Rule), 15A
NCAC 2B .0235 (Meuse Nutrient Sensitive Water Management Plan)
213 .0240 (Nutrient Offset Payments) under such authority as
' established in SL 2007-438 and any amendments thereto provided
such use has met all applicable requirements and is authorized by the

' appropriate authority.
D. Procedure for Debiting or Crediting the Bank: GV shall maintain
three credit ledgers: 1) one accounting for nitrogen offset credits (in
' square feet), which are generated by buffer areas both < 50 feet in
width; and >51 feet in width, 2) one for non-riverine wetland
mitigation units (WMU) and 3) one for stream mitigation units
' (SMU). The ledgers (Appendix B) shall record the area of available
area for each credit value and all associated debits and credits. GV
reserves the right to amend this MBI to recognize and reflect State
' Neuse Buffer Credits consistent with the pending State stream
determination by the Washington Regional DWQ office. Thus if
Neuse Buffer credits are established at a later date GV will develop
th
' and add a 4
ledger that will track buffer values and account for them
in conjunction with nitrogen offset credits, WMU's and SMU's. No
debits or credits to the ledger shall be made without the written
' concurrence of the DWQ, MBRT or its designee, and GV. All written
concurrences shall be kept in the ledger. The accounting and tracking

' presented in the ledgers and overseen by DWQ and the MBRT will 1)
compartmentalize all state and federal bank values, 2) allow for
accurate tracking of sales and drawdown's, and 3) prevent "double-
dipping" of the same.

' VI. OTHER PROVISIONS
A. GV will allow, or otherwise provide for, access to the Parcel(s) b the DW
Y Q
or other parties authorized by the DWQ, as necessary, for the purpose of
' inspection and compliance with the terms and conditions of this Banking
Instrument and the conservation easement or restrictive covenants.
Inspecting parties shall provide reasonable notice, of not less than 24 hours,
' to GV, prior to inspection of Bank.
B. Force Majeure: GV will not be responsible for Bank failure that is attributed
' to natural catastrophes such as flood, drought, disease, regional pest
infestation, etc. that are beyond the control of GV. DWQ must concur in
writing that a. force majeure event has occurred.
' C. Validity, Modification, and Termination of the Banking Instrument: This
Banking Instrument will become valid on the date of the last party's
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signature. This Banking Instrument may be amended or modified only with
the written approval of all signatory parties.
D. Specific Language of Banking Instrument Shall Be Controlling: To the extent
that specific language in this document changes, modifies, or deletes terms
and conditions contained in those documents that are incorporated into the
Banking Instrument by reference, and that are not legally binding, the
specific language within the Banking Instrument shall be controlling.
E. Dispute Resolution. Any disputes between the Bank Sponsor and the DWQ
regarding the attainment of success criteria and release of credits from a
specific site and appropriate monitoring, maintenance and/or remedial onsite
activities shall first be addressed among the field staff of DWQ and GV field
personnel and then, if not settled, raised to the level of the individual
signatories to the Banking Instrument or their designees.
F. Notices: Unless otherwise provided herein, all notices and other
communications which may be or are required to be given or made by any
party to the other in connection herewith shall be in writing and shall be
deemed to have been properly given and received on the date delivered in
person or deposited in the United States mail, registered or certified, return
receipt requested, to the addresses setut below, or at such other addresses as
specified by written notice delivered in accordance herewith.
If to GV: 1001 Capability Drive, Suite 312
Raleigh, North Carolina 27604
If to DWQ:
G. Entire Agreement: This Agreement constitutes the sole and entire agreement
among the parties hereto and no modification of this Agreement shall be binding
unless in writing and signed by all parties hereto.
H. Applicable Law: This Agreement shall be construed under the laws of the State
of North Carolina.
GreenVest/Flat Swamp, LLC:
By:
Name: Douglas Lashley
Title: Managing Member
North Carolina Department of Environment
and Natural Resources: Division of Water
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Quality:
By:
Name:
Title:
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Appendix A- Bank Parcel Development Package

THE FLAT SWAMP MITIGATION BANK
Nutrient Offset Mitigation Plan
Bank Parcel Development Package
Craven County, North Carolina
Prepared By:
rw
Quality Woods LLC
4405 DeWees Court
Raleigh, NC 27612
July 2008

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Table of Contents
Site Location, H UC, Existing Conditions ................................................................................... 3

' Proposed Restoration Activities ................................................................................................... 4
M onitori rig and M ai ntenance Plans ............................................................................................ 5
Mitigation Potential ...................................................................................................................... 6
Credit Generation .......................................................................................................................... 6
Servioe Area .................................................................................................................................... 6
Accounting .................................................................................................................................... 6
' Appendix I -Figures. ...............1

Figure 1. Project Vicinity Map . 2
.....................................................................................................
Figure2. Protect Boundaries ........................................................................................................ 3
' Figure 3. Project D ra nage Area ................................................................................................... 4
Figure 11 a Proposed Wearn Design and Nutrient Offset Buffers .............................................. 5
Figure 13. Proposed Vegetative Communities .............................................................................. 6
' Appendix I I -Photos .................................................................................................................... 7
Photo 1 ........................................................................................................................................ S
Photo 2 ........................................................................................................................................ 9
t Photo 3 ......................................................................................................................................
Photo 4 ...................................................................................................................................... 10
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Si
te Location, H UC, Existing Conditions
The FM is located in North Carolina Division of Water Quality (N CDWQ) subbaasin 03-04-08 of the Nam
' River Basin. More specifically, the site is located within US Geologic Survey (UBGbj 8-digit hydrologic unit
code (HUC) 03020202 and 14-digit HUC 03020202080020. Flat Swamp creek originates approximately 3.2
miles southwest of Fort Barnwell and 4.5 miles northeast of Dover in Craven County, North Carolina Flat
' SNarnp Creek is a tributary of the Neuse River and flows east from the project site intersecting Core Creek
before emptying into the south side of the Nam Rver. The FM is located in the headwaters of Flat Swamp
Creek (Latitude 35 degrees 15 minutes 10.96 seconds N and Longitude 77 degrees 22 minutes 04.05 seconds
' E). The site is bounded by Dover Fort Barnwell Road (8R 1262) to the north and west, lonestown Road (SR
1258) and Camp Oak Road (521261) to the east, and Dover Bay to the south (Appendix A-Figure 1).
' The FS is located entirely on two adjoining parcels in Craven County, NC (Appendix A-Figure 2). The site
encompasses extensive areas of deered and drained wetlands currently in agriculture and forestry production.
Total area of the site is approximately 386 acxeswhich includes 360 acres of prior-converted (PC) bicultural
land and approximately 26 acres of partially drained forested wetlands based on a March 2006 survey. Quality
' Woods holds an option to purchase both parcels in their entirety to encompass all of the stream restoration
and associated buffer requirements at the site Approval has already been received by Quality Woods for Flat
Snarp Mibgticn Banc Ptasel bland Re craticn and Enl a wre on 366 acres in 1999.
' Land adjacent to the FM is being managed for timber production by timber corporations and private
individuals Based on the characteristics of remaining forested wetlands both on-site and on adjacent land,
the site once supported a rich diversity of habitats including wet flat hardwoods and pine swamp hardwoods,
' as well as cypress and riverine hardwoods along the historic Flat Swamp Creek system. Much of this habitat,
inducting the origi nal Flat Swamp Creek has been destroyed or altered during the past 3040 years as a result
of ditching, draining, channdization, and road building associated with the conversion of the land to
' agiculturai production. It is estimated that the watershed to the Flat Snianp Creek is approximately 250%
cultivated crop or pasture land, 70% forested/ wetland, and 4% urban/ residential. Only 1% of thewatersined
is estimated to beimpevious
' The FM exhibits characteristics of a riparian headwater system as described in guidance set forth by the
United Rates Army Corps of Engineers (USACE) and NCDWQ titled I, (an icn REgrdrtgRream Fkdcratim
with Errpnass cn theCcestai Rain (2007). All streams on-site exist as zero order or first order jurisdictional
' streams Zero order streams are referred to as "jurisdictional waterways that do not appear on a county Soil
Slrvey' and a first order stream is "that portion of a waterway from its identified origin downstreern to the
first intersection with another waterway' (USACE, 2005). The original Flat Swamp Creek system no longer
' exists, having been obliterated by land dewing for agricultur4 ditching and road building What was once a
natural stream network now exists in the form of zero order bicultural stream ditches located along gravel
farm roads on the project site These man-made ditches are now direct unnamed tributaries (UTs) to Flat
Swamp Creek and are potentially jurisdictional under the Clean Water Ad (CWA). The combined drainage
' area of these tributaries isapproximately 1.8 square mile (1,141 axes) which ismorethan adequateto develop
stream features in this area of the coastal plain (Appendix A-Figure 3).
' Topography at the site has very minimal variation, as would be expected on the lower coastal plain. Ground
elevations of the F58 range from approximately 16 fed above mean see level to approximately 17.5 feat
above mean sea level, with elevations around the manmade ditdx s being slightly lower.
I The Flat Swamp watershed has been extensively impacted by dewing, ditching and road building over the
past 50 to 100 years (Appendix &Photos 1-4). These activities have obliterated many of the historical strewn

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and wetland systems, including the riverine and nonriverine wEtlands, as well as small coastal plan first and
second order streams that flow to the Neuse Rive. The project area is in the upper reaches of the Flat
SNa l lp Creek watershed and therefore has a large influence on the water quality and habitat in Flat Sovamp
Creek, Core Creek, and ultimately the Neuse River.
Proposed Restoration Activities
Restoration of the riparian buffer using strategic vegetation planting practices will provide stream bank
stability, stream shading, water quality improvements through nutrient uptake and sediment filtering, as well
as providing wildlife habitat. The riparian buffers will be restored by planting appropriate naive species,
trees, shrubs, and herbaceous vegetation in zones specific to landscape position, topography and hydrology.
' Vegetation datawaseollected from the UT to Brice Creek reference sitefor use in development of
preliminary planting plans for the FEB. Dominant specieswithin the canopy were recorded and their percent
of canopy ooverage documented. Data recorded for species present in the canopy is as follows black gum
(400/6), red maple (200/6), swamp chestnut oak (15%), willow oak (101/6), swestgum (50/6), green ash (<5%),
' holly (<5%), black willow (<5%), and bays (<5%). Additionally, dominant understory specieswere recorded
asvMl astheir abundanoewithin therefereneesite Understory speciesin order of abundance areasfollows
giant cane; dog hobble(LeiafhoeraHn*, netted chain fern, poison ivy, royal fern (Osnndsr%dio, spieebush
' (Lindaabe>zaln), arrow arum (Ntardavirdrio cinnamon fern (Oan.rch dnnarmn*, false nettle (Bosyreia
)indri(a), and miscellaneous sedges. Quality Woods has also identified two significant natural areas (SNA)
proximal to the FM to use as additional reference plant communities if necessary. Thesetwo SNAs are
recorded in the North Carolina Natural Heritage Program (N H P) database (2008). Both sites are located
' within 20 miles of the FSB and contain applicable reference quality plant communities should additional
vegetative information berequired.
Tree and shrub species will be planted in specific planting zones. These planting zones will accommodate
plant species which have specific requiremerts for growth. Hydrology and topography are the main factors
that dictate a plants ability to survive and to thrive following planting. These planting zones will be created
around these requirenents and will include the following zones Zone 1 (Bottomland Vegetation), Zone 2
(Riverine Buffer), and Zone 3 (Non-Riverine Buffer). Thetotai width for Zones 1, 2, and 3 is 200 feet, which
equates to approximately 242.7 ac for all ditches connecting to surface waters and restored streams within the
project area (Appendix A -Figure 11 a). A list of spades recommended for each Zonecan befound in Table
3. A proposed vegetation plan is shown on Figure 13 in Appendix A.
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Betula nigra River birch
Celtis occidentalis Hackberry
Riverine Fraxinus pennsylvanica Green ash
2 TBD** Buffer Quercus michauxii Swamp Chestnut Oak
Quercus pagoda Chenybark Oak
Quercus nigra Water oak
Quercus phellos Willow oak
Gordonia lasianthus Loblolly bay
Persea borbonia Red bay
3 TBD*** Non-Riverine Quercus michauxii Swamp Chestnut Oak
Buffer Quercus pagoda Cherrybark Oak
Quercus nigra Water oak
Quercus phellos Willow oak
Hreacacuaea nasea on azonewdth of btr(tinal Zonewidth not yet determined)
Area calculated based on aZonewidth of 75=(final Zonewidth not yet determined)
*** Area calculated based on aZone width of 125 (totai width: Zones 1,2, & 3= 2001
' Any non-native exotic vegetation species will be removed or treated with appropriate herbicides in order to
promote the establishment and protection of desired native species vegetation. All vegetation related design
and construction implementation services, including exotic vegetation removal, as well as site planting and
associated sitepreparation will be led and coordinated under thesupevision of Quality Woods.
' Monitoring and Maintenance Plans
Re n counts will be conducted within strategically placed 10m x 10m plots When choosing the location for
each plot, the primary goal will be to obtain a representative sample of the entire area of disturbance
' Therefore; plots will be scattered throughout the project and will capture all habitat variations The total area
of sample plots will equal a minimum of 5% of the total mitigation type area Based on the preliminary
planting areas shown in Table 3, Phase I I of the FM will require 37 sarnple plots spaced throughout Ranting
Zone land 56 sample plots spaced throughout Ranting Zone 2. The minimum density of plant stem within
' each sample plot established during construction will be 460 steps per acre
Vegetation success will be measured for survivability over afive year monitoring period. Survivability will be
' based on achieving at lead 320 stems per axe after five yeas A survey of vegetation during the growing
season (mid-Mach to early November) will be conducted annually over the five year monitoring period in
order to verify survivability of the installed plantings, This survey will track the total mortality on an annual
basis and be used to calculate survivability at the end of three and five years Survivability of less than 320
' stems per acre at the end of the three and five year monitoring periods may require the installation of
additional plantings as replacement for the mortality.
' Note the stem count procedure only applies to planted and transplanted woody vegetation. For shrubby
species with multiple branching stems, the base will be considered one stem. Trees with two or more main
stems branching from the base or near the ground will be considered one stem. Ranted individuals will be
kept separate from volunteers by loosely tied flagging All flagging material will be designed to degrade within
' a couple yea's and will not be tied tightly or in a manner that would inhibit plant growth.
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Mitigation Potential
The project design as proposed allows for the buffering of ditches oonnected with surfacewaters as well as
restored stream threads up to 200 feet. Figure 11 a illustrates the proposed 200 foot buffers and equates to
approximately 242.7 acres availablefor nutrient offset credits
Credit Generation
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set credits will be generated through the restoration of 242.7 acres of riparian buffer equating to
approximately 551,661.95 lbs of nutrient offset credits using established DWQ guidelinesfor determining
nutrient removal efficiencies by vegetated buffers
Service Ar
ea
NeuseBasin including USGeologc,%rvey (USGS) 8-digit hydrologic unit code(HUC) 03020202-Middle
N euse

Accounting
' See Ledger in MBI (Appendix B)
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PROJECT VICINITY MAP
FLAT SWAMP MITIGATION BANK
CRAVEN COUNTY, NORTH CAROLINA
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I 'I Prepared For:
PROJECT BOUNDARIES
FLAT SWAMP MITIGATION BANK
usACE CRAVEN COUNTY, NORTH CAROLINA
Figure
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' I Prepared For:
PROJECT DRAINAGE AREA
FLAT SWAMP MITIGATION BANK
usACE CRAVEN COUNTY, NORTH CAROLINA
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Appendix C - Conservation Easement
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November 25, 2003
Wilmington District Processfor Preservation of Mitigation Property
The Wilmington District Regulatory Branch (District), consistentwith Corpsof
Engineers guidance, often accepts or requires the preservation of property, primarily
wetlands or other waters, as compensatory mitigation to offset impacts to waters or
wetlands authorized by permits issued pursuant to Section 404 of the Clean Water Act.
Property preserved may be either existing, high quality wetlands or other waters, or
property on which work is performed to restore, enhance, or createwaters or wetlands.
I n addition, property preserved may be high ground, preserved in order to enhance or
protect adjacent wetlands or other waters (e.g., stream buffers). The purpose of this
document is to outline what the District generally considers necessary to adequately
preserve property offered as compensatory mitigation. It does not address issues of when
preservation is necessary, or what types, quality, or quantity of compensatory mitigation
is adequate to offset authorized impacts.
As an i nitial matter, unless the proposed mitigation is a mitigation bank or use of
an in-lieu fee program (e.g., the North Carolina Wetlands Restoration Program (NCWRP)
or the Ecosystem Enhancement Program (EEP)), the permittee must have a sufficient
interest in the mitigation property to implement the mitigation plan, including
preservation of property. Fee ownership is preferred.
The District generally considers preservation of property for compensatory
mitigation purposes to consist of maintaining the property in its natural condition, or, if
restoration, creation, or enhancement work has been performed on the property, in its
mitigated condition. The District generally expects that (other than District- approved
construction to enhance, restore, or create waters or wetlands) prohibited activities on the
property wi I I i ncl ude al I constructi on, gradi ng, f i I I i ng, excavati ng, di tchi ng, drai ni ng, as
well as the removal, cutting, mowing, burning or harming of vegetation. Some activities
on the property will generally be allowed, such as hiking, fishing, and hunting. Model
preservation documents at Attachments A-C providea more detailed explanation of what
the District considers to be adequate preservation.
Preservation of property is a component of a complete mitigation plan.
Preparation of acceptable mitigation plans is the responsibility of the applicant.
Mitigation plans should include an adequate description of the property to be preserved
and a description of the activities that will be limited and allowed on the property. The
plan should also identify the type of preservation mechanism proposed to be used;
identify the owner of the mitigation property; and identify the proposed recipient of the
preservation interest, if applicable. Although it is not required that the proposed
document implementing the preservation of the property be submitted with the mitigation
plan, permitswill generally not be issued until the proposed document has been approved
by the Corps.

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Permits wi I I general ly requi re that the approved preservation mechanism be
properly executed and recorded within 30 days of permit issuance. The District may
exercise flexibility here where it appears there is no immediate threat to the property; the
terms of the preservation mechanism have been agreed to by all necessary parties; and
I egi ti mate reasons for a limited extension of ti me exist.
There are several preservation mechanisms applicants may propose to use to
preserve mitigation property, including, in general order of preference, conservation
easements, restrictive covenants, and conservation declaration of restrictions. Fee
conveyance to an acoeptabl a conservati on organi zati on may ad so be acc eptabl e.
Subj ecti ng property to any of the preservati on mechani sms outl i ned i mpacts the property
owner's rights, and the preservation document should be drafted by an attorney
representing the property owner, using the appropriate model document. Other
preservation mechanisms may be proposed by applicants, working with their attorney.
Preservation property must be adequately described in the preservation document.
This can be achieved by means of a metes and bounds description taken from a recent
survey of the property, or a recorded survey identifying the property. Where practicable,
the survey should show the location of any easements or rights of way on the property, as
wel I as the I ocati on of any features or faci I lies the grantor deli res to reserve ri ghts to use,
mai ntai n, repai r, or repl ace.
Other than an appropriate fee conveyance, the District considers conservation
its to be the most effective form of property preservation, and will require them
for all mitigation sites of any appreci able size, for those of particular value regardless of
size for which awiIIing acceptable holder can be found, and for all mitigation banks. A
model conservation easement is provided as Attachment A. Conservation easements
proposed by applicants must comply with the model, unlessthe District approves
modifications. To request a modification from the model, the appl i cant must submit the
model with the modifications requested highlighted, and reasons for the requested
changes explained in writing. Any request for modification should be sent to both the
District's project manager for the proposed activity, and the District's Office of Counsel,
P.O. Box 1890, W I mi ngton, North Carol i na 28402.
Conservation easerrients require an approved holder. It i s the responsibility of the
' appl i cant to I ovate an acceptabl a and wi I I i ng hol der; the Di stri ct wi I I not be the hol der of
such an easement. Approved holders must be qualified pursuant to N.C. Gen. Stag. §
121-35, and § 170(h) of the Internal Revenue Code. In addition, the District will require
' that the holder be either a recognized conservation organization, or a governmental entity
that intends to enforce the conditions of the conservation easement. The District will not
approve any holder unless it has some degree of confidence that the holder will monitor
' the preservation site, and enforce the terms of the easement. The District may consider
such factors as the experience of the holder in managing preservation property; the
purpose of the proposed holder, as reflected in its corporate charter or other
' organizational documents, the relationship of the proposed grantor, or permit applicant,
to the proposed holder; and the plans of the holder i n managing the property.

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Property to be subject to a conservation easement should be free and clear of any
pri or I i ens or encumbrances that couI d adversel y i mpact i is val ue as mi ti gati on property,
i ncl udi ng, but not I i mi ted to, ti mber or mi neral ri ghts vested i n a t h i rd party; access,
utility, or other easements that could allow a physical alteration of the property, and
deeds of trust. Any deeds of trust on the property should be subordinated to the
conservation easement. A prel i mi nary title opinion will be required prior to issuance of
the permit, and the permit will be conditioned to require a final title opinion upon
recording of the conservation easement. This requirement maybe satisfied if the grantee
of the easement has a mechanism in place to assure it obtains good title to the
conservation easement.
The District recognizes that there will be smaller mitigation sites for which it may
be impractical to require a conservation easement; primarily where no acceptable holder
i s wi I I i ng to accept the easement. That maybe the case for single project mitigation
required to compensate for impacts authorized by nationwide or regional permits. In the
absence of other suitable thi rd party holders, however, NCWRP wi I I often agree to hold
conservation easementsfor small sites. Wherethe District requires a conservation
easement for NWP's and NCWRP agrees to be the holder, NCWRP' s model
conservation easement is acceptable to the Corps.
Where the District f i nds that a conservation easement is not practicable, it may
accept another form of preservation; either a restrictive covenant associated with a
subdivision of property, or a conservation declaration. Before accepting a preservation
mechanism other than a conservation easement, the applicant may be required to provide
a written description of what efforts it has made to locate an acceptable holder for a
conservation easement.
Language for restrictive covenants for subdivisions, as well as a conservation
declaration for property that will not be subdivided, can be found at Attachments B & C,
respectively. Again, the District must approve any modification of this language;
modification should be requested by showing proposed changes on the District's model
language, with a written explanation of the reason for the requested modification.
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LIST OF ATTACHMENTS
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Model Conservation Est; Attachment A ............ Page 5

Restrictive Covenant Guidance; Attachment B .............Page 13

M odel Ded arati on of Restri cti ons; Attachment C ............. Page 15
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ATTACHMENT A; MODEL CONSERVATION EASEMENT
January 18, 2001
Rev' d October 16, 2002
' Rev' d August, 2003
Model Conservation Easement for use in preserving mitigation property. Language in
' italics is instructional, and should be deleted when site-specific Conservation Easement
is prepared.
' PERMANENT CONSERVATION EASEMENT
' THIS CONSERVATION EASEMENT ("Conservation Easement") made this
day of 200 by and between ,
("Grantor") and (Grantee).
' The designation Grantor and Grantee as used herein shall include said parties,
their heirs, successors and assigns, and shall include singular, plural, masculine, feminine
' or neuter as required by context.
RECITALS
' WHEREAS, Grantor owns in fee simple certain real property situated, lying and
being in County, North Carol i na, more particularly
' described in Exhibit A attached hereto and incorporated herein (" Property" );
WHEREAS, Grantee is [either a public body of this state, an agency of the United
States, or a nonprofit corporation or trust whose purpose is the conservation of property],
' and is qual ified to be the Grantee of a conservation easement pursuant to N. C. Gen. Stat.
§ 121-35;
t WHEREAS, Grantor and Grantee recognize the conservation, sonic, natural, or
aesthetic value of the property in its natural state, which includes the following natural
communities: [describe by wetland and/or stream type, as well as any associated buffers
' or upland communities]. The purpose of this Conservation Easement is to maintain
wetl and and/or ri pari an resources and other natural val ues of the Property, and prevent
the use or development of the Property for any purpose or i n any manner that would
' conflict with the maintenance of the Property in its natural condition.
[ For use when the mi ti gati on is offered for irrpactsof a si ngl e i ndi vidual or
' general permit use] WHEREAS, the preservation of the Property is a condition of
Department of the Army permit Action I D i ssued by the Wi I mi ngton
District Corps of Engineers, required to mitigate for unavoi dab[ e stream and/or wedand
' impacts authorized by that permit. Grantor and Grantee agree that third-party rights of
enforcement shall be held by the U.S. Army Corps of Engineers, Wilmington District

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(Corps, to include any successor agencies), and that these rights are in addition to, and do
not limit, the rights of enforcement under said permit.
[Alternate paragraph for use when the conservation easement supports a
mitigation bank] WHEREAS, the preservation of the Property is required by a Mitigation
Banking Instrument for the [Name of Bank], Department of the Army Action ID [Action
I D number for the mitigation bank]. The Mitigation Bank is intended to be used to
compensate for unavoidable stream and/or wetland impacts authorized by permits issued
by the Department of the Army. Grantor and Grantee agree that third-party rights of
enforcement shall be held by the U.S. Army Corps of Engineers, Wilmington District
(Corps, to include any successor agencies), and that these rights are in addition to, and do
not limit, the ri ghts of the parti es to the Mitigation Banking Instrument.
NOW, THEREFORE, for and inconsideration of the covenants and
representati ons contai ned herei n and for other good and val uabl a consi derati on, the
receipt and legal sufficiency of which is hereby acknowledged, Grantor hereby
unconditionally and irrevocably grants and conveys unto Grantee, its heirs, successors
and assigns, forever and in perpetuity a Conservation Easement of the nature and
character and to the extent herei nafter set forth, over the Property descri bed on Exhi bit A,
together wi th the ri ght to preserve and protect the conservati on val ues thereof, as fol I ows:
ARTICLE I.
DURATION OF EASEMENT
This Conservation Easement shal I be perpetual. This conservation Easement is an
arnent in gross, runs with the land and isenforceableby Grantee agai nst Grantor,
Grantor's personal representatives, heirs, successors and assigns, lessees, agents and
i c ensees.
ARTICLE II.
PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purpose of this
Conservation Easement is prohibited. The Property shall be preserved in its natural
condition and restricted from any development that would impair or interfere with the
conservation values of the Property.
Without I i miti ng the general ity of the foregoi ng, the fol Iowi ng activities and uses
are expressly prohibited, restricted or reserved as indicated hereunder:
A. Disturbance of Natural Features. Any change disturbance, alteration or
' impairment of the natural features of the Property or any introduction of non-native
plants and/or animal species is prohibited.
' B. Constructi on. There shal I be no constructi ng or pl aci ng of any bui I di ng,
mobile home, asphalt or concrete pavement, bi I I board or other advertising display,
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antenna, utility pole, tower, conduit, line, pier, landing, dock or any other temporary or
permanent structure or facility on or above the Property.
C. Industrial. Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passagefor such purposes are prohibited.
D. Agricultural. Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting
or mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trai Is. There shad I be no construction of roads, trai Is or wal kways
on the property; nor end argement or modi f i cati on to exi sti ng roads, trai I s or wad kways.
G. Siignage. No signs shat I be permitted on or over the Property, except the
posting of no trespassing signs, signs identifying the conservation vadues of the Property,
signs giving directions or proscribing rules and regulations for the use of the Property
and/or signs identifying the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machi nery or hazardous substances, or toxic or
hazardous waste, or any placement of underground or aboveground storage tanks or other
materials on the Property is prohibited.
1. Excavati on, D redgi ng or M i neral Use. There shal I be no gradi ng, f i I I i ng,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
mi neral s or other mated ad s, and no change i n the topography of the I and i n any manner
on the Property, except to restore natural topography or drainage patterns.
1 J. Water Quad ity and D rai nage Pattern. There shat I be no di ki ng, drai ni ng,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
altering or tampering with water control structuresor devices, or disruption or alteration
of the restored, enhanced, or created drainage patterns. In addition, diverting or causing
or permitting the diversion of surface or underground water into, within or out of the
easement area by any means, removal of wetlands, polluting or discharging into waters,
springs, seeps, or wetlands, or use of pesticide or biocides is prohibited.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Easernent shall be transferred pursuant to a
transferabl a devel opment ri ghts scheme or cl uster devel opment arrangement or
otherwise.
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L. Vehicles. The operation of mechanized vehicles, i nd udi ng, but not I i mi ted to,
motorcycles, dirt bikes, ail-terrain vehicles, cars and trucks is prohibited. [The Corps
will generally allow the use of vehicles on existing roads provided those roads are
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identified by reference to a recorded map showing their location, configuration, and
' size.]
M. Other Prohibitions. Any other use of, or activity on, the Property which is or
' may become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
' ARTICLE I I I
GRANTOR'S RESEVERED RIGHTS
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The Grantor expressly reserves for himself, his personal representatives, heirs,
successors or assigns, the right to continue the use of the property for all purposes not
inconsistent with this Conservation Easement, including, but not limited to, the right to
quiet enjoyment of the Property, the rights of ingress and egress, the right to hunt, fish,
and hike on the Property, the right to sell, transfer, gift or otherwise convey the Property,
in whole or in part, provided such sale, transfer or gift conveyance is subject to the terms
of, and shall specifically reference, this Conservation Easement.
[For use when mitigation work (approved or required restoration, creation, or
enhancement) i s to be done on the property] Notwithstandi ng the foregoi ng Restricti ons,
Grantor reserves for Grantor, its successors and assigns, the right to construct wetland
and stream mitigation on the Property, in accordance with the [describe mitigation plan
by title, dateand permit action id if a single mitigation site, if a mitigation bank, include
the language" detailed mitigation plan approved in accordance wi th the Mitigation
Banking Instrument for the Mitigation Bank.]
ARTICLE IV.
GRANTEE' S RI GHTS
The Grantee or its authorized representatives, successors and assigns, and the
Corps, shat I have the right to enter the Property at al I reasonable times for the purpose of
inspecting said property to determine if the Grantor, or his personal representatives, heirs,
successors, or assigns, iscomplying with the terms, conditions, restrictions, and purposes
of this Conservation Easement. The Grantee shad I also have the right to enter and go
upon the Property for purposes of making scientific or educational observations and
studies, and taking samples. The easement rights granted herein do not include public
access rights.
ARTICLE V
EN FORCEM ENT AND REMEDIES
A. To accomplish the purposes of this Easement, Grantee is allowed to prevent
any activity on or use of the Property that is inconsistent with the purposes of this
Easement and to requi re the restoration of such areas or features of the Property that may
be damaged by such activity or use. Upon any breach of the terms of this Conservation
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Est by Grantor that comes to the attention of the Grantee, the Grantee shal I notify
the Grantor i n wri ti ng of such breach. The Grantor shal I have 30 days after recei pt of
such notioeto correct the conditions constituting such breach. If the breach remains
uncured after 30 days, the Grantee may enforce this Conservation Easement by
appropriate legal proceedings including damages, injunctive and other relief.
Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice,
to obtain a temporary restraining order, injunctive or other appropriate relief if the breach
of the term of this Conservation Easement is or would irreversibly or otherwise
materi al I y impair the benefits to be derived from this Conservation Easement. The
Grantor and Grantee acknowledge that under such circumstances damage to the Grantee
woul d be i rreparabl a and rernedi es at I aw wi I I be i nadequate. The ri ghts and rernedi es of
the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights
and remedies available to Grantee in connection with this Conservation Easement. The
costs of a breach, correction or restoration, including the Grantee' s expenses, court costs,
and attorneys' fees, shad l be paid by Grantor, provided Grantor is determined to be
responsible for the breach. The Corps shat I have the same right to enforce the terms and
conditions of this easement as the Grantee.
B. No fai I ure on the part of the Grantee to enforce any covenant or provi si on
hereof shad I di scharge or i nval i date such covenant or any other covenant, condi ti on, or
provi si on hereof or affect the right to Grantee to enforce the same i n the event of a
subsequent breach or default.
C. Nothing contained in this Conservation Easement shall be construed to entitle
Grantee to bri ng any acti on agai nst Grantor for any i nj ury or change i n the Property
resulting from causes beyond the Grantor's control, including, without limitation, fire,
f I ood, storm, war, acts of God or thi rd parti es, except Grantor's I essees or i nvi tees; or
from any prudent action taken in good faith by Grantor under emergency conditions to
prevent, abate, or mi ti gate si gni f i cant injury to life, damage to property or harm to the
Property resulting from such causes.
ARTICLE VI
MISCELLANEOUS
' A. Warranty. Grantor warrants, covenants and represents that it owns the
Property i n fee si mple, and that Grantor either owns al I i nterests i n the Property which
may be impaired by the granting of this Conservation Easement or that there are no
' outstanding mortgages, tax I i ens, encumbrances, or other interests in the Property which
have not been expressly subordinated to this Conservation Easement. Grantor further
warrants that Grantee shall have the use of and enjoy all the benefits derived from and
arising out of this Conservation Easement, and that Grantor will warrant and defend title
to the Property agai nst the cl ai ms of al I persons.
9

B. Subsequent Transfers. The Grantor agrees to i noorporate the terms of this
' Conservation Easement in any deed or other legal instrument that transfers any interest in
all or a portion of the Property. The Grantor agrees to providewritten notice of such
transfer at least thi rty (30) days prior to the date of the transfer. The Grantor and Grantee
' agree that the terms of thi s Conservati on Easement shad I survi ve any merger of the fee
and easement interests in the Property or any portion thereof and shall not be amended,
modified or terminated without the prior written consent and approval of the Corps.
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C. Assignment. The parties recognize and agree that the benefits of this
Conservation Easement are in gross and assignable provided, however that the Grantee
hereby covenants and agrees, that in the event it transfers or assigns this Conservation
Easement, the organization receiving the interest will be a qualified holder under N.C.
Gen. Stat. § 121-34 et seq. and § 170(h) of the I nternal Revenue Code, and the Grantee
further covenants and agrees that the terms of the transfer or assignment wi I I be such that
the transferee or assignee wi I I be requi red to continue i n perpetuity the conservation
purposes described in this document.
D. Entire Agreement and Severabi I itv. This instrument sets forth the entire
agreement of the parties with respect to the Conservation Easement and supersedes all
prior discussions, negotiations, understandings or agreements relating to the Conservation
Easement. If any provision is found to be void or unenforceable by a court of competent
jurisdiction, the remainder shall continue in full force and effect.
E. Obligations of Ownership. Grantor is responsible for any real estate taxes,
assessments, fees, or charges levied upon the Property. Grantor shadI keep the Property
free of any liens or other encumbrances for obligations incurred by Grantor. Grantee shat[
not be responsible for any costs or liability of any kind related to the ownership,
operation, insurance, upkeep, or maintenanceof the Property, except as expressly
provided herein. Nothing herein shall relieve the Grantor of the obligation to comply with
federal, state or local laws, regulations and permits that may apply to the exercise of the
Reserved Rights.
F. Extinguishment. In the event that changed conditions render impossible the
continued use of the Property for the conservation purposes, this Conservation Easement
may onl y be exti ngui shed, i n whol a or i n part, by j udi ci al proceedi ng.
G. Eminent Domain. 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 shat I join i n 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 taki ng.
H. Proceeds. This Conservation Easement constitutes a read property interest
immediately vested in Grantee. In the event that all or a portion of this Property is sold,
exchanged, or involuntarily converted following an extinguishment or the exercise of
eminent domad n, Grantee shall be entitled to the fair market vadue of this Conservation
10

Easement. The parties stipulate that the fair market value of this Conservation Easement
' shat I be determined by multiplying the fair market value of the Property unencumbered
by this Conservation Easement (minus any i ncrease i n value after the date of this grant
attributable to improvements) by the ratio of the value of this easement at the time of this
' grant to the value of the Property (without deduction for the value of this Conservation
Easement) at the time of this grant. The values at the time of this grant shad I be the values
used, or which would have been used, to calculate a deduction for federal income tax
purposes, pursuant to Section 170(h) of the Internal Revenue Code (whether eligible or
ineligible for such a deduction). Grantee shal I use its share of the proceeds in a manner
consistent with the purposes of this Conservation Easement.
' I. Notification. Any notice, request for approval, or other communication
required under this Conservation Easement shall be sent by registered or certified mail,
' postage prepaid, to the fol lowi ng addresses (or such address as may be hereafter specified
by notice pursuant to this paragraph):
To Grantor:
' [ Name, address and fax number]
To Grantee.
' [ Name, address and fax number]
To the Corps:
' [ Name, address and fax number]
'
J. Fai I ure of Grantee. I f
at any time Grantee is unable or fads to enforce this
Conservati on Easement, or i f Grantee ceases to be a qual i f i ed grantee, and i f wi thi n a
' reasonable period of time after the occurrence of one of these events Grantee fails to
make an assignment pursuant to this Conservation Easement, then the Grantee's interest
shall become vested in another qualified grantee in accordance wi th an appropriate
' proceeding in a court of competent jurisdiction.
K. Amendment. This Conservation Easement may be amended, but only in a
' writing signed by all parties hereto, and provided such amendment does not affect the
qualification of this Conservation Easement or the status of the Grantee under any
applicable laws, and is consistent with the conservation purposes of this grant.
' L. [For use if there is a document describing the current condition of the
property. The language provided is applicable if there is a mitigation plan that
' accurately describes the current condition and uses of the property. If there is not such a
plan, another document we agree is accurate and can be identified and is in our files can
be referenced.] Present Condition of the Property. Thewetlands, sonic, resource,
environmental, and other natural characteristics of the Property, and its current use and
state of improvement, are described in Section , Appendix B of the Mitigation Plan,
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dated , prepared by Grantor and acknowledged by the Grantor and
' Grantee to be complete and accurate as of the date hereof. Both Grantor and Grantee
have copies of this report. It will be used by the parties to assure that any future changes
in the use of the Property will be consistent with the terms of this Conservation
' Easement. However, this report is not intended to preclude the use of other evidence to
establish the present condition of the Property if there is a controversy over its use.
' TO HAVE AND TO HOLD the said rights and easements perpetually unto Grantee for
the aforesaid purposes.
' IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day
and year first above written.

n
[Signatures of the Grantor and Grantee inappropriate form]
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ATTACHMENT B- RESTRICTIVE COVENANT GUIDANCE

August, 2003
' Often, developersof residential or commercial subdivisions subject the property on
which the subdivision is built to restrictive covenants, that include provisions such as
setbacks, types of homesstbui l di ngs that can be built, etc. If the District has determi ned
' that restrictive covenants are acceptable as a means of preserving mitigation property, the
following language can be added to those restrictive covenants:
"The areas shown on the recorded plat (identify the plat by title, date, and
di
d
recor
ng
ata) as conservati on areas shad I be mai ntai ned i n perpetuity i n thei r
natural or mitigated condition. No person or entity shadI perform any of the
' following activities on such conservation area
a. fill, grade, excavate or perform any other land disturbing activities
b. cut, mow, burn, remove, or harm any vegetation
' c. constructor place any roads, trails, walkways, buildings, mobile
homes, signs, utility poles or towers, or any other permanent or temporary
structures
d. drain or otherwise disrupt or alter the hydrology or drainage ways of
the conservation area
' e. dump or store soi I, trash, or other waste
f. graze or water animals, or use for any agricultural or horticultural
purpose
This covenant is intended to ensure continued compliance with the mitigation
condition of a Clean Water Act authorization issued by the United States of
America, U.S. Army Corpsof Engineers, Wilmington District, Action ID
and therefore may be enforced by the United States of America This covenant

is to run with the land, and shal I be bi ndi ng on the Owner, and al I parties claiming

' under it."
Usually, restrictive covenants have a provision that the property owners either all of
them or some percentage of them) can amend or modify the restrictive covenants. If that
' isthecase, that provision needsto provide that our required paragraph (usually identified
by paragraph number) cannot be amended without the express written consent of the U.
S. Army Corps of Engineers, Wilmington District.
'
Thepermit condition should statethat thepermitteewill record restrictive covenants,
acceptable to the Corpsof Engineers, for the purpose of maintaining the mitigati on areas
' in their natural state i n perpetuity, prior to the sale or conveyanceof any lots or other
property within the subdivision. It is important that the restrictions be recorded prior to
the sale of any property within the subdivision (or phase, if it is being developed by
' phase). If they are not, then any property sold prior to the recording of the restrictive
covenant are not subject to those covenants. Suggest the following:
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" Permittee shat I execute and cause to be recorded i n the County
Register of Deeds restrictive covenants acceptable to the Corps of Engineers for
the purpose of maintaining the conservation areas, as shown on the recorded
' plat* (identify by title, date, and recording data), in their natural state in
perpetuity, prior to the sale or conveyance of any lots or other property within the
subdivision. The permittee shall enforce the terms of the restrictive covenants
and, prior to conveyance of the property, shad I take no action on the property
described in the covenants inconsistent with the terms thereof. The permi ttee
shall provide a copy of the recorded restrictive covenants to the Corps of
Engi neers withi n 15 days of recordi ng."
* It is possible and acceptable that the plat may not be recorded at the ti me of the
issuance of the permit. If that is the case, delete the word" recorded" and be sure you
have a copy of a plat showing the conservation arms in the file, and identify it in the
permit condition by title and date. The plat, however, must be recorded at the time the
restrictive covenants are recorded, and prior to the sale of any lots in the subdivision.

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ATTACHMENT C -- MODEL DECLARATION OF RESTRICTIONS
August, 2003
' STATE OF NORTH CAROL I NA
COUNTY
' CONSERVATION DECLARATION
' This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS (" ") is made on this day of
' 200 by [NAME AND AD DRESS OF DECLARANT] "Declarant").
RECITALS& CONSERVATION PURPOSES
' A. Declarant is the sole owner in fee simple of the certain Conservation
Property (Property) being approximately acres, more particularly described in
' Exhibit A attached hereto and by this reference incorporated herein [reference to a
recorded map showing a survey of the preserved area may be required]; and
' B. The purpose of this Conservation Declaration is to maintain wetland and/or
riparian resources and other natural values of the Property, and prevent the use or
development of the Property for any purpose or in any manner that would conflict with
' the maintenance of the Property in its natural condition. The preservation of the Property
in its natural condition is a condition of Department of the Army permit Action ID
issued by the Wi I mi ngton District Corps of Engineers (Corps), required
' to mitigate for unavoidable impacts to waters of the United States authorized by that
permit, and this Conservation Declaration may therefore be enforced by the United States
of America.

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NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that
the Property shall be held and subject to the following restrictions, covenants and
conditions as set out herein, to run with the subject real property and be binding on all
parties that have or shall have any right, title, or interest in said property.
ARTI CL E 1. PROH I BI TED AND RESTRI CTED ACTI VI TI ES
Any activity on, or use of, the Property inconsistent with the purposes of this
Conservation Declaration is prohibited. The Property shall be maintained in its natural,
sceni c, and open condi ti on and restri cted f rom any devel opment or use that woul d i mpai r
15

or interfere with the conservation purposes of this Conservation Declaration set forth
' above.
Without limiting the generality of the foregoing, the following activities and uses are
' expressly prohibited or restricted.
A. Disturbance of Natural Features. Any change disturbance, alteration or
' impairment of the natural features of the Property or any introduction of non-native
plants and/or animal species is prohibited.
B. Constructi on. There shal I be no constructi ng or placi ng of any bui Idi ng,
' mobile home, asphalt or concrete pavement, bi I I board or other advertising display,
antenna, utility pole, tower, conduit, line, pier, landing, dock or any other temporary or
' permanent structure or facility on or above the Property.
C. Industrial, Commercial and Residential Use. I ndustri al , residential and/or
' commercial activities, including any right of passagefor such purposes are prohibited.
D. Agricultural. Grazing and Horticultural Use. Agricultural, grazing, animal

' husbandry, and horticultural use of the Property are prohibited.
E. V etation. There shall be no removal burnin destruction harmi
eg g, ng, cutting

' or mowi ng of trees, shrubs, or other vegetation on the Property.
F. Roads and Trai Is. There shal I be no construction of roads trai Is or wad kw
ays

' on the property.
G. Signage. No signs shal I be permitted on or over the Property, except the
posti ng of no trespassi ng signs, signs identifyi ng the conservati on val ues of the Property,
' signs giving directions or proscribing rules and regulations for the use of the Property
and/or signs identifying the Grantor as owner of the property.
' H. Dumpi ng or Storage. Dumpi ng or storage of soi 1, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or
hazardous waste, or any pl acement of underground or aboveground storage tanks or other
' mated al s on the Property i s prohi bi ted.
1. Excavation. Dredging or Mineral Use. There shall be no grading, filling,
' excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
minerals or other materials, and no change in the topography of the land in any manner
on the Property, except to restore natural topography or drainage patterns.
' J
W
.
ater Quality and Drainage Pattern. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
' altering or tampering with water control structuresor devices, or disruption or alteration
of the restored, enhanced, or created drainage patterns. In addition, diverting or causing
'
16

or permitting the diversion of surface or underground water into, within or out of the
' easement area by any means, removal of wetlands, polluting or discharging into waters,
spri ngs, seeps, or wed ands, or use of pesti ci de or bi oci des i s prohi bi ted.
' K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Declaration shall be transferred pursuant to a
transferable development rights scheme or cluster development arrangement or
' otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
' motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or
' may become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
' ARTI CL E 11. ENFORCEMENT & REM EDI ES
A. This Declaration is intended to ensure continued compliance with the
' mitigation condition of authorizations issued by the United States of America, U.S. Army
Corps of Engineers, Wilmington District, and therefore may be enforced by the United
States of America. This covenant is to run with the land and shall be binding on all
' parties and all persons cl ai mi ng under the Declarant.
B. Corps, its employees and agents and its successors and assigns, have the
right, with reasonable notice, to enter the Property at reasonable times for the purpose of
inspecting the Property to determine whether the Dedarant, Declarant's representatives,
or assigns are complying with the terms, conditions and restrictions of this Conservation
' Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to
' entitle Corps to bring any action against Declarant for any injury or change in the
Conservation Property caused by third parties, resulting from causes beyond the
Decl arant' s control, including, without limitation, fire, flood, storm, and earth movement,
' or from any prudent action taken in good faith by the Declarant under emergency
conditions to prevent, abate, or mitigate significant injury to life, damage to Property or
harm to the Property resulting from such causes.
¦ ARTI CL E 111. PUBL I C ACCESS
' A. This Conservation Declaration does not convey to the public the right to
enter the Property for any purpose whatsoever.
17

ARTICLE IV. DOCUMENTATION AND TITLE
' A. Conservation Property Condition. The Declarant represents and
acknowledges that the Property is currently undeveloped land, with no improvements
' other than any existing utility lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the
' sole owner and is seized of the Property in fee simple and has good right to make the
herein Decl aration; that there is legal access to the Property, that the Property is free and
clear of any and all encumbrances, except Declarations of record.
' ARTI CL E V. M I SCEL LANEOUS
' A. Conservation Purpose.
(1) Declarant, for itself, its successors and assigns, agrees that this
' Conservation Property shall be held exclusively for conservation purposes.
B. Enti re Agreement. Thi s i nstrument sets forth the enti re agreement of the
' parties with respect to the Conservation Declaration and supersedes all prior discussions,
negotiations, understandings or agreements relating to the Conservation Declaration. If
any provision i s f ound to be i nvadi d, the remainder of the provisions of this Conservation
Declaration, and the application of such provision to persons or circumstances other than
' thoseastowhich it isfound to beinvalid, shall not beaffected thereby.
C. Recording. Declarant shall record this instrument and any amendment
' hereto i n ti mel y fashi on i n the off i ci al records of County, North Carolina,
and may re-record it at any time as may be required to preserve its rights.
' D. Environmental Condition of Conservation Property. The Declarant
warrants and represents that to the best of its knowledge after appropriate inquiry and
investigation: (a) the Property described herein is and at all times hereafter will continue
' to be in full compliance with all federal, state and local environmental laws and
regulations, and (b) as of the date hereof there are no hazardous materials, substances,
wastes, or environmentally regulated substances (including, without limitation, any
' materials containing asbestos) located on, in or under the Property or used in connection
therewith, and that there is no environmental condition existing on the Property that may
prohibit or impede use of the Property for the purposes set forth in the Recitals.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and
year first above written.
[Signature of Declarant in proper form]
? ,a
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Appendix D - 2002 MBI
t Agreement to Establish the Flat Swamp Wetland Mitigation
and Stream Restoration Bank in Craven County, North Carolina
' This Mitigation Banking Instrument Agreement ("MBI") is made and entered into on the
day of , 2000, by The Triangle Group, Inc. (TTG) (collectively, "Sponsor");
and the U.S. Army Corps of Engineers ("Corps"), Environmental Protection Agency ("EPA"),
U.S. Fish and Wildlife Service ("FWS"), National Marine Fisheries Service ("NMFS"), North
Carolina Wildlife Resources Commission ("NCWRC"), North Carolina Division of Water
t Quality ("NCDWQ"), and North Carolina Division of Coastal Management ("NCDCM"),
collectively, the Mitigation Bank Review Team ("MBRT").
' WHEREAS, the purpose of this MBI is to establish the Flat Swamp Wetland Mitigation and
Stream Restoration Bank ("the Bank") providing compensatory mitigation for unavoidable
wetland impacts separately authorized by Section 404 Clean Water Act permits in appropriate
circumstances;
WHEREAS, Sponsor is the record owner of that certain parcel of land containing approximately
' 386 acres located in Craven County, North Carolina, more fully described in the Flat Swamp
:Mitigation Bank Plan - Phase I - Nonriverine Wetland Restoration and Enhancement and
Flat Swamp Mitigation Bank - Phase II - Flat Swamp Stream Restoration (proposed) as
' shown on the attached survey. The Mitigation Plan for Phase I and survey will be attached and
incorporated herein by reference as Appendices A and B respectively; and
WHEREAS, the agencies comprising the MBRT agree that the Bank Site is a suitable mitigation
bank site, and that implementation of the Mitigation Plan should result in net gains in wetland
functions at the Bank Site.
' NOW THEREFORE, it is mutually agreed among the parties to this MBI that the '
g following
provisions are adopted and will be implemented upon signature of this MBI.
1 General Provisions
' 1. The goal of the Bank is to restore, enhance, and preserve forested wetland systems and
their functions and values to compensate in appropriate circumstances for unavoidable
wetland impacts authorized by Section 404 Clean Water Act permits in circumstances
deemed appropriate by the Corps after consultation with the other members of the
MBRT.
' ?. The parties to this MBI recognize and understand that, where practicable, on-site, in-kind
compensatory mitigation is preferred, unless use of the Bank is determined by the Corps
to be environmentally preferable.
' 3. Use of credits from the Bank to offset wetland impacts authorized
by Clean Water Act
Section 404 permits shall be in compliance with the Clean Water Act and implementing
' regulations, in addition to the following statutes, regulations, and policies:

F
A. Federal
a. Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251,
et seg., including specifically Section 401(a);
' b. Rivers and Harbors Act of 1899, 33 U.S.C. § 403, et M.;
C. Fish and Wildlife Coordination Act (16 U.S.C., 661 et M.);
d. National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et M.,
including the Council on Environmental Quality's implementing
' regulations, 40 C.F.R. Parts 1500-1508;
C. Executive Order 11990, Protection of Wetlands (May 24, 1977);
' f. Federal Guidance for the Establishment, Use and Operation of Mitigation
Banks, 60 Fed. Reg. 58605 (Nov. 28, 1995);
' g. Department of the Army, Section 404 Permit Regulations, 33 C.F.R.
Parts 320-330), and policies for evaluating permit applications to
' discharge dredged or fill material;
h. Department of Transportation, Federal Highway Administration
' Regulations, 23 C.F.R. Part 777, concerning Mitigation of Environmental
Impacts to Privately Owned Wetlands;
' i. U.S. Environmental Protection Agency, Section 404 Regulations,
40 C.F.R. Parts 230-233 (guidelines for specification of disposal sites for
dredged and fill material);
'
j. Memorandum of Agreement between the Environmental Protection
Agency and the Department of the Army concerning the Determination of
' Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines
(February 6, 1990);
' B. North Carolina
a. N.C. Admin. Code tit. 15A, r. 02H.0500;
'
b. N.C. Admin. Code tit. 15A, r. 02B.0100 and r. 02B.0200; and
' c. North Carolina Wetlands Restoration Program, N.C. GEN. ST,4T.
§ 143-214.8 et M.
' 4. The Corps is responsible for making final permit decisions pursuant to Section 10 of the
Rivers and Harbors Act and Section 404 of the Clean Water Act, including final
determinations of compliance with the Corps' permit regulations and the
Section 404(b)(1) Guidelines. The Corps has been responsible for conducting all

11

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meetings with state and federal resource/regulatory agencies and Sponsor for establishing
the Bank. Tile Corps will determine the amount of compensation needed for a given
Department of the Army Section 404 permit, including permits under the Nationwide
Permit program. In this MBI, the MBRT has established the total number of restoration-
equivalent credits which may become available for sale from the Bank upon
implementation of all activities as described in this MBI, including but not limited to the
terms of Appendix A. In the case of permit applications and compensatory mitigation
required solely under the Section 401 Water Quality Certification rules of North
Carolina, the NC Department of Water Quality (NCDWQ) will determine the amount of
credits that can be withdrawn from the Bank.
5. Modifications to this MBI may be proposed by any MBRT member or by Sponsor. Any
proposed modification shall be made in writing and submitted to all MBRT members and
Sponsor. All MBRT members and Sponsor must approve, in writing, the proposed
modification for it to take effect.
6. Any MBRT member can withdraw from this MBI with ten (10) days advance written
notice to all other MBRT members and Sponsor. Member withdrawal shall not affect
any prior sale of credits and all remaining parties shall continue to implement and enforce
the terms of this MBI. Any independent review authority as to specific Section 404
permit applications possessed by a withdrawing party will, however, remain in full force
and effect.
7. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of
the parties hereto and their respective heirs, successors, assigns, and legal representatives.
8. This MBI constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior agreements or undertakings.
9. 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.
10. This MBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.
11. 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.
12. Any delay or failure of the Sponsor shall not constitute a default hereunder to the extent
that such delay or failure is primarily caused by any act, event or condition beyond the
Sponsor's reasonable control and significantly adversely affecting its ability to perform
its obligations hereunder including: (i) acts of God, lightning, earthquake, fire, landslide,
drought, hurricane, storm, flood, 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
3

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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 Sponsor is
affected by any such event, Sponsor shall give written notice thereof to the MBRT as
soon as is reasonably practicable and to the extent necessary and appropriate as
determined by the MBRT, the Sponsor shall provide adequate mitigation acceptable to
the Corps or permitting agency to compensate for credits that have been debited from the
Bank in the event that restoration or enhancement acreage sufficient to make up debited
credits is adversely impacted by any condition or conditions referenced in this paragraph.
13. 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. No
party or third party other than Sponsor shall have any property rights to the Bank Site,
except as otherwise expressly provided herein.
14. The MBRT shall be chaired by the representative from the Corps' Wilmington District.
The MBRT shall review monitoring and accounting reports as more fully described
herein below. In addition, the MBRT will review proposals for remedial actions
proposed by Sponsor or any of the agencies represented on the MBRT. The MBRT's
role and responsibilities are more fully set forth in Sections Q(C)(3&6) of the Federal
Guidance on Mitigation Banking [See 60 Fed. Reg. 58605 (Nov. 28, 1995)]. The MBRT
will work to reach consensus on all required actions.
Mitigation Plan
15. The Bank will be developed in two (2) phases: Phase I - Nonriverine Wetland
Restoration and Enhancement and Phase II - Flat Swamp Stream Restoration. Each
phase will be developed separately with Phase I being implemented first. Plans for Phase
I and Phase II will be approved separately by the MBRT.
16. The Bank Site is located in the Neuse River watershed in the headwaters of Flat Swamp
Creek east ofDover and south of Fort Barnwell in Craven County, NC. A more detailed
description of the baseline conditions on the site is contained in the Mitigation Plan.
17. Sponsor will perform the work described in the Proposed Action Section of the
Mitigation Plan, including hydrologic and soil modifications and plantings. The purpose
of the work, and the objective of the Bank, is to (Phase I) restore natural wetland
community types in areas of prior converted (PC) agricultural fields, enhance existing
wetland community types and (Phase II) restore sections of Flat Swamp Creek which
historically originated on the Bank site.
18. Sponsor is responsible for assuring the success of the restoration and enhancement
activities as specified in the Mitigation Plan, and for the overall operation and
management of the Bank. Sponsor shall monitor the Bank Site for at least 5 years as
described in the Monitoring Section of the Mitigation Plan, or until such time as the
MBRT determines that the performance criteria described in the Mitigation Plan have
been met, whichever period is longer.
4
19. Sponsor shall implement any remedial measures required pursuant to the terms of this
MBI.
20. Sponsor shall provide to each member of the MBRT the reports described in the
Monitoring Section of the Mitigation Plans.
21. The Corps shall review said reports and provide a written response. At any time, after
consultation with Sponsor and the MBRT, the Corps may direct Sponsor to take remedial
action at the Bank Site. Remedial action required by the Corps shall be designed to
achieve the performance criteria specified in the Mitigation Plan. All remedial actions
required shall include an implementation schedule, which shall take into account physical
and climatic conditions.
22. When all performance criteria as described in the Mitigation Plan have been met, as
reasonably determined by the MBRT, the MBRT shall provide written notice to that
effect to Sponsor stating that: (a) all required performance criteria have been met; (b)
Sponsor permanently is released from all ffirther monitoring, remedial measures or the
ecological performance obligations with regard to the Bank Site; and (c) Sponsor's
security obligations as specified in this MBI fully have been satisfied. Thereafter,
Sponsor shall have no further obligations whatsoever with regard to the Bank Site except
that, if any credits remain unsold or otherwise finally accounted for, Sponsor shall
continue to have sole control over the sale of any such remaining mitigation credits, and
likewise shall continue to be required to provide all related mitigation credit accounting
reports as specified in this MBI until all such credits are sold or otherwise finally
accounted for. Notwithstanding the above, the parties to this agreement understand that
if all credits are not sold within one year of the bank meeting performance criteria, the
Corps, in its discretion, may require additional information on the current condition of the
bank prior to agreeing to the utilization of credits from the bank.
23. At any time prior to the completion of all performance criteria as defined in Paragraph 21
above, Sponsor may determine voluntarily that remedial action may be necessary to
achieve the required performance criteria. In such instance, Sponsor shall provide notice
of its proposed remedial action to all members of the MBRT. No significant remedial
actions shall be undertaken by Sponsor without the express concurrence of the Corps, in
consultation with the MBRT.
' 24. The mitigation site may be used for research purposes pending approval of any such
plans by the MBRT.
' Use of Mitigation Credits
' 25. The Geographic Service Area (GSA) is the defined area wherein the Bank can reasonably
be expected to provide appropriate compensation for impacts to wetland and/or other
aquatic resources. The GSA for the Bank shall include the Neuse hydrologic Unit
' (03020202) in North Carolina west of New Bern along the Neuse River. The location
map of the Neuse Hydrologic Unit (03020202) is attached and incorporated herein by
reference as Appendix C. Adjacent service areas may be considered for use by the
' MBRT on a case-by-case basis.

26. The Mitigation Plan is intended to result in the following forms and amounts in acres, of
compensatory mitigation.
Summary of proposed restoration and enhancement activities within the
Flat Swam Wetland Miti ation and Stream Restoration Bank
Existing plant Mitigation Proposed Area
community e T e Activities
Agricultural fields a/
(PC) and Flat Swamp Wetland and Plug ditches, site prepare by ripping, 339.0 ac
Creek Stream construct ephemeral ponds, and plant
Restoration wetland vegetation
Wet Pine Flatwoods
Enhancement Plug ditches 8.0 ac
Nonriverine Wet
Hardwood Forest Enhancement Plug ditches 39.0 ac
Total Area 386.0 ac
a / Nonriverine Wet Pine Flatwoods and Wet Hardwood Forest (Phase I) = 318.34 acres
Riverine Small Coastal Plain Stream Swamp (Phase II) = 20.66 acres
27. Successful implementation of the Mitigation Plan will result in the creation of the
following number of mitigation credits:
Wetlands:
• 165.05 credits of Nonriverine Wetland Community Types
Based on formulas developed by the WRP, the credit calculations are as follows:
Restoration (R) = 318.34 acres
Enhancement (E) = 47 acres
# of credits = R/2 + (E/4R x R/2) = 318.34/2 + [47/(4 x 318.34) x 318.34/2]
= 159.17 + (0.037 x 159.17) = 165.05 credits
Given the number of credits calculated above (165.05), the credit makeup for Phase I of the Flat
Swamp Bank is:
1 credit = 1.93 acres or restoration and 0.285 acres of enhancement
318.34 acres restoration i 165.05 total credits = 1.93 acres of restoration per credit
47 acres enhancement / 165.05 total credits = 0.285 acres enhancement per credit
6
Total Wetland Credits Available from the Bank: 165.05 credits
¦ Note: The propose 20.66 acres of Riverine Small Coastal Plain Swamp (9000 linear ft X 100 ft)
are not included in the above calculations. This area is reserved for Phase II - Flat Swamp
' Stream Restoration and will be developed at a later date. The amount of stream restoration will
be determined following field investigations and will be approved separately by the MBRT.
Streams:
• The number of stream restoration credits generated at Flat Swamp have yet to be determined
' but will be approved separately by the MBRT as a part of the final mitigation plan for this
phase of the bank. Generally, it is anticipated that one stream credit will compensate for one
foot of stream impact unless special circumstances require a higher ratio as determined by a
' permitting agency.
28. It is anticipated by the parties that use of mitigation credits shall be "in-kind;" that is, that
' the above described types of wetland and stream restoration credits will be used to offset
the same type of wetland and stream impacts.
29. It is anticipated by the parties that in most cases in which the Corps, after consultation
with members of the MBRT, has determined that mitigation credits from the Bank may
be used to offset wetland impacts authorized by Section 404 permits, for every one acre
of impact, one mitigation credit will be debited from the Bank. Deviations from the one-
to-one compensation ratio may be required by the Corps on a case-by-case basis where
justified by considerations of functions of the wetlands impacted, the severity of the
impacts to wetlands, whether the compensatory mitigation is in-kind, and physical
proximity of the wetland impacts to the Bank Site. For stream impacts, stream credits
from this bank will generally only be used to compensate for impacts to same order or
lower streams.
30. 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 water
impacts authorized by Department of the Army permits shall be made by the Corps,
pursuant to the Clean Water Act, and implementing regulations and guidance, after notice
of any proposed use of the Bank to Sponsor and all members of the MBRT, and
consultation with same regarding such use. In the case of compensatory mitigation
required solely under Section 401, water quality certification, the NCDWQ will notify
Sponsor and the MBRT of such use and the proposed credit withdrawal.
31. The Bank Sponsor shall be entitled to sell fifteen percent (15%) of the Bank's total
restoration credits (24.76 credits) and fifteen percent (15%) of the Bank's stream
restoration credits (to be determined and approved by the MBRT - Phase II) immediately
upon completion of all of the following:
a.) Recordation of a conservation easement offering permanent, perpetual conservation
use of the Bank Site.
b.) Execution of this MBI by all partners whose names appear as signatories.
' c.) Delivery of the security required in Paragraph 37 of this MBI.
' d.) Final mitigation plan approval
No credits will be released until an easement approved by the MBRT is placed on the
t entire site and financial assurances for both phases are in place.
32. Subject to Sponsor's continued satisfactory completion of all required performance
' criteria and monitoring, additional restoration mitigation credits will be available for sale
by Sponsor on the following schedule:
Milestone Percent Wetland
Release Restoration
Credits
MBRT approval of Plan, execution 15% 24.76
of MBI, recordation of conservation
easement, and posting of acceptable
financial assurance
Following project implementation, 10% 16.50
Year 1 monitoring and MBRT
approval of Annual Report
Following year 2 of monitoring 10% 16.50
phase and MBRT approval of
Annual Report
Following year 3 of monitoring 10% 16.50
phase and MBRT approval of
Annual Report
Following year 4 of monitoring 15% 24.76
phase and MBRT approval of
Annual Report
Following year 5 of monitoring 15% 24.76
phase and MBRT approval of
Annual Report
Final approval of project by MBRT 25% 41.27
TOTALS 100% 165.05
The above schedule assumes acceptable survival and growth of planted vegetation,
' attainment of wetland hydrology and stream restoration performance criteria as described
under the performance criteria in the Monitoring Section of the Mitigation Plan, and
further assumes a determination by the MBRT of functional success as defined in the
' Mitigation Plan prior to release of the final 25% of wetland and stream restoration
credits.
? e

Sponsor shall develop accounting procedures for maintaining accurate records of debits
made from the Bank that is acceptable to the MBRT. Such procedures shall include the
' generation of a debit report by Sponsor documenting all credits used at the time they are
debited from the Bank. Debit reports shall be provided to each member of the MBRT
within 30 days of the date of credit use. In addition, Sponsor shall prepare an Annual
' Report, to be provided to each MBRT member within thirty (30) days of each
anniversary of the date of execution of this MBI, showing all credits used and the balance
of credits remaining. Sponsor's reporting obligations hereunder shall end upon the sale of
' all credits or termination of this MBI, whichever event first occurs.
34. Sponsor may request addition of other properties to the Bank. In such event, the terms
and conditions of any proposed property addition shall be set forth in an amended
mitigation banking instrument that will be subject to separate review and, if appropriate,
approval by the MBRT.
' 35. If monitoring of the Bank under this MBI establishes that mitigation and restoration as
required under the MBI has failed or only partially succeeded, corrective measures shall
' be required to assure that performance standards are being met. If, as a result of
maintenance and monitoring reports, it is determined that performance standards are not
being met, the MBRT shall provide notice to Sponsor who then shall prepare an analysis
' of the cause of the failure, propose corrective actions and specify a time frame for
implementing corrective actions. Minor corrective measures do not require a formal
notification process and may be accomplished as a part of routine maintenance; such
' measures shall be identified in the next subsequent monitoring report. If satisfactory
corrective actions are not taken by Sponsor after formal written notice from the MBRT,
then the MBRT is entitled to give notice that the agreed-upon corrective actions have not
' been satisfied and trigger the use of the financial assurances. Under such circumstances
the MBRT also is entitled to, in its sole discretion, notify Sponsor of the immediate
suspension of further sale of credits from the Bank. Upon completion of required
' remedial action(s) to the satisfaction of the MBRT, as documented in written notice from
the MBRT to Sponsor, credit sales automatically shall be allowed to resume, subject to
any additional requirements reasonably specified by the MBRT in the written notice.
If there are repeated failures by Sponsor in complying with the performance standards for
success under the terms of this MBI, the MBRT reserves the right to declare a material
' default under the terms of Sponsor's security and said security shall be used to replace
lost wetland functions and otherwise fulfill the terms of the wetland restoration plan
' required by this MBI.
Final release of Sponsor's obligations hereunder shall occur when the MBRT reasonably
determines that all performance standards have been met and all restoration credits have
' been debited from the Bank.

? 9
Propertv Disposition
36. Sponsor shall grant a conservation easement, in form acceptable to the MBRT, sufficient
to protect all of the Bank Site. The easement shall be perpetual, preserve all natural
areas, prohibit all construction, and prohibit any activity that would materially alter the
biological integrity or functional and education value of wetlands within the Bank Site,
consistent with the Mitigation Plan. The purpose of the easement will be to assure that
future use of the Bank Site will result in the restoration, protection, maintenance, and
enhancement of the functional values of the wetlands and wildlife habitat described in the
Mitigation Plan. The Coastal Land Trust is proposed to hold the easement and it has
tentatively agreed to accept the easement.
Financial Assurances
37. Sponsor shall provide the Corps, on behalf of the MBRT, with financial assurances, in a
form acceptable to the Corps, sufficient to assure completion of all remaining restoration
and enhancement activities, and required reporting and monitoring. Sponsor presently
proposes to satisfy this requirement by providing a Construction and Maintenance Bond
in an amount equal to the estimated cost of construction and completing all remaining
maintenance and monitoring costs required under this MBI as set forth on Appendices D
and E, attached and incorporated herein. Sponsor's final, executed security assurances
shall be provided to a party acceptable to the MBRT prior to the sale of any of the credits
from the bank. The Corps will not be the beneficiary of any financial assurance
mechanism. Sponsor's security obligations shall terminate and be released immediately
after the MBRT determines, in writing that all performance standards as stated in the
Mitigation Plan have been complied with.
Miscellaneous
38. All notices and required reports shall be sent by regular mail to each of the parties at their
1 respective addresses, provided below:
Sponsor:
The Triangle Group, Inc.
1001 Capability Drive
Research I - Suite 312
1 Centennial Campus
Raleigh, NC 27606
' Corps:
Mr. David Lekson P.W.S.
U.S. Army Corps of Engineers
' Washington Regulatory Field Office
10

Post Office Box 1000
Washington, NC 27889-1000
EPA:
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Wetlands Regulatory Section - Region IV
Sam Nunn Atlanta Federal Center
61 Forsyth St. , SW
Atlanta, GA 30303
FWS:
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, NC 27636-3726
NMFS:
Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Division
101 Pivers Island Road
Beaufort, NC 28516
NCWRC:
Mr. Bennett Wynne
N.C. Wildlife Resources Commission
901 Laroque Ave.
Kinston, NC 28501
NCDCM:
Mrs. Kelly Williams
N.C. Division of Coastal Management
1638 Mail Service Center
Raleigh, NC 27699-1638
NCDWO:
Mr. Mac Haupt
N.C. Division of Water Quality
Wetland Restoration Program
P.O. Box 29535
Raleigh, NC 27626
Flat Swamp Wetland and Stream Mitigation Bank
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
BY:
Date:
U.S. Fish and Wildlife Service
By:
U.S. Environmental Protection Agency
By: n'°_l' . i
71
National Marine FislYeries Service
Date:
Date:
By:
NC Division of Water Quality
By:
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Date:
Date:
Date:
Date:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
12
In witness whereof, the parties hereto have executed this Agreement
U.S. Army Corps of Engineers
By: Date:
U.S. Fish and Wildlife Service
By:' Date: "'-''Fy <sa
U.S. Environmental Protection Agency
By: Date:
National Marine Fisheries Service
By: Date:
NC Division of Water Quality
By:
NC Division of Coastal Management
Date:
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
Date:
Date:
12

1
1
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
By:
U.S. Environmental Protection Agency
By.
National Marine 'shenie.9. Service
By:
NC Division of Water Quality
By: - -
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
Date:
Date:
Date:
Date: - 7?L LSD
Date:
Date:
Date:
Date:
A.
12
1
' In witness whereof, the parties hereto have executed this Agreement.
U. S: Army Corps of Engineers
1
By:
' U
S
Fish and Wildlif
S
i
.
.
e
erv
ce
By:
U.S. Environmental Protection Agency
B
:
y
' National Marine Fisheries Service
By:
NC Di
i
i
f W
t
li
v
s
on o
a
er Qua
ty
1 By.
NC Division of Coastal Management
1 B
:
y
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' NC Wildlife Resources Commission
By:
B
k S
Th
T
l
G
i
an
ponsor -
e
e
ang
r
roup, Inc.
' By:

1
1
Date:
Date:
Date:
Date:
Date:
Date:
Date:
Date:
In witness whereof, the parties hereto have executed this Agreement.
U.S. Army Corps of Engineers
By:
U.S. Fish and Wildlife Service
Date:
By:
Date:
U.S. Environmental Protection Agency
By:
National Marine Fisheries Service
Date:
By:
NC Division of Water Quality
By:
NC Division of Coastal Management
By:
NC Wildlife Resources Commission
By:
Bank Sponsor - The Triangle Group, Inc.
By:
12
Date:
Date:
Date:
Date: ?U I/ay -?Oc ? 6
T
Date:
t
1
1
1
1
1
1
1
1
1
1
1
i
UWU NLWKr y'ly r53 7Oel 1e/Ud 'UU 16:33 N0.381 03/03
Flat Swamp Wetland Mitigation and Stream Restoration Bank - Final Mitigation
Banking Instrument
!? ra, AP, /vo
# Kerr T. tev 1s D
Directo Division of Water Quality
NC - Department of Environment and Natural Resources
1
In witness whereof, the parties hereto have executed this Agreement.
1
1
1
1
1
1
1
1
1
1
U.S. Army Corps of
By:
nsor - The Triangle Group, Inc.
By: - r
Vt'C PhlSi??
Date: 00
Date: I f ?? 2 00 Q
AUC' ? 20(??l
REU±;I A 11: ?,?,
List of Appendices
Appendix A: Flat Swamp Wetland Mitigation and Stream Restoration
Bank Plan -- Phase I (Pending approval)
Appendix B: Property Survey and Legal Description
Appendix C: Map - General Service Area
Appendix D: Construction Costs
Appendix E: Maintenance and Monitoring Costs
13
.iPPENDLX A
it
1
1

1

1
APPS M B
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
Jimmie and :-inn Davis Property
Tract 2 - 233.4 acres
Bearing
N 89 degrees 16 minutes 21 seconds W
S 00 degrees 32 minutes 59 seconds W
S 00 degrees 05 minutes 04 seconds W
S 88 degrees 57 minutes 24 seconds W
Ni 00 degrees 59 minutes 00 seconds E
N 00 degrees 48 minutes 26 seconds E
Ni 00 degrees 23 minutes 46 seconds W
S 89 degrees 16 minutes 21 seconds E
Distance
2025.40 ft.
2518.00 ft.
'_334.79 ft.
2091.66 ft.
2981.27 ft.
1249.1 ! ft.
687.07 ft.
59.16 ft.
I/'' 66
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PROPERTY MAP
M, n A . ?nJ s 0 ?[?Je
COUNTY: ?. _-.
.CAES: I S' 2 A SCALE:--
Include:
TRACT NO. _ I
q Cuiteno adjoining landowners 5? Hoodt (publlo or prtva(e) with No. and Marne
2) Property boundaries fin red) 6) olfaction and distance to nearest towns
91 Slreams (name, typo and direction of flow) I) aulIdings (numbarod to corteapond with Appre(ser's Report)
4) fences, topography, utility float, ponds, barrow pits. olc. 9) Govarnrnunl survey Haut should be Identified
e) North arruw, land Uas symbols. etc.
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he above map was prepared from surveyor's plat legal doscrlptl aortal photo .
1 le/propert app Ised on
cortliy this map Is an accurate representation of
Appraised: /Lr U?P
'(DA E) (SIGNATUREr
Reappraised: - No.
(DATE) (SIGNATUREI
No.
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030101
' 03020102
03020101
1
' 03020203
TO THE FLAT SWAMP WETLAND MITIGATION BANK
GENERAL SERVICE AREA
03010204
03010203
03010107
03020103
03010205
03020104
03020105
03020202
' 0303000]
?S
y 5
4
03030001
03020106
LEGEND:
¦ PORTION OF 03020104
¦ PORTION OF 03020105
¦ 03020204
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Appendix D
Construction Costs Cost
Engineering - topographic survey, hydrologic design, stream
restoration data collection, stream design $65,000
Implementation - site prep, grading, ditch plugs, stream channel $95,000
Planting - seedlings, transportation, labor, herbicide application,
oversight - 339 ac @$400/ac $135,600

TOTAL: $295,600
14
Appendix E
Maintenance and Monitoring Costs Cost
Maintenance: mowing, herbicides, precommercial thinning, ditch
plugs, stream channel, roads, erosion control, pest control
$15,000 / year X 5 years $75,000

Monitoring: vegetation, hydrology, soils data collection, analyses,
and Annual Reports, field tours $10,000 / year X 5 years $50,000

TOTAL: $125,000
15
IN PEPLV REFER TO
Regulatory Division
Action 11) No. 199911312
SEE DISTRIBUTION
Dear Dr Frederick
DEPARTM NT OF THE ARMY
WILMINGTON DISTPI?,T, CORPS OF ENGINEERS
W ashmgtor. RegulatoryField OHrce
P. Box 1000
Washmgton,19,11hCarolina 278891000
AU;Isl 16, 2002
This correspondence confirms my August 2, "002, telephone conversation with Dr. Douglas
Frederick regarding the-Flat Swamp Wetland I litigation and Stream Restoration Bank he is
developing on a 386 acre tract of land located 4f of Dover Road, near the community of Dover,
adjacent to Flat Swamp, in Craven County, Nc• th Carolina. Also reference Dr. Frederick's letter
of May 23. 2002, requesting modification of th Pltilase 1 wetland credit calculations and my
subsequent correspondence of Mine 19, 2002, tr you regarding this matter.

The purpose of this correspondence is to unudify the mitigation banking instrument (MBI)
entitled Agreement to Establish the Flat Swam > Wetland Mitigation and Stream Restoration
Bank in Craven County, North Carolina. Oncr all parties to the MBI have concurred in writing,
the MBI will be modified as follows
a. Paragraph 27 is modified to read:

1
t

1
1
Wetlands: Phase f, wetland credits within th barfk are calculated based upon the following
ratios: a) restoration (1:1); b) enhancement (2:'% c) creation (3:1); and d) preservation (5:1). The
bank contains 318.34 acres of restoration and 4'' acres of enhancement for a total of 341.84
nonriverine wetland credits,
Restoration = 318 34 (ti I 1 = :;18.3 :
Enhancement = 47.00 (n) 2 1 = 23.5(:
341.8^ Total Nonriverme Wetland Credits
Note. The proposed 20.66 acres of Riverine >mall Coastal Plain Swamp (9,000 feet long by
100 feet wide) are not included in the above cat• ulations.? This area is reserved for Phase 11, Flat
Swamp Stream Restoration, and will be developt:l at a later date. The amount of stream
restoration will be detemiined following field i. vestigations and will be approved separately by
the MBf2T.

-2-
Streams: The number of stream credits gene.ratet, at Flat Swamp have yet to be determined but
will be approved separately by the MBRT as a part f the final mitigation plan for this phase of
the bank. Generally, it is anticipated that one strear„ credit will compensate for one foot of
stream impact unless special circumstances re.quir, -i higher ratio as detemtined by a permitting
agency.
b. Paragraph 29 is modified to read:
"It is anticipated by the parties that in most cases in which the Corps, after consultation with
the MBRT, has determined that mitigation credits 'rum the Bank may be used to offset wetland
impacts authorized by Section 404 permits, for ev,,i y one acre of impacts, two credits will be
debited from the Bank. One of those credits rmust he a restoration credit: the remaining credit
will be made up of any combination of restoration, c rhancenrcnt, creation or preservation credits,
as selected by the Sponsor and approved by the Corl s during its permit process. Deviations trom
this compensation ratio may be authorized by the C, ps on a case-by-case basis where justified
by considerations of functions of the wetlands impa ted, the severity of the wetland impacts,
whether the compensatory mitigation is in-kuid. ai t the physical proximity of the wetland
impacts to the Bank site, except that in all cases, a minimum of a one-to-one ratio of impact acres
to restoration mitigation credits (acres) must be meat. '
All other terms and conditions of the original nut,,mtion banking instrument remain in full
force and effect.
6
The MBI requires that all MBRT members rs well as the Sponsor must approve, in
writing, any modification of the MBI. I am them ore providing you and each member of
the MBRT with a copy of this correspondence w. h a concurrence signature line, and
requesting that each sign on that line to indicate -oncurrence with this modification, and
return the correspondence to me. Once I have r eeeived a signed concurrence from you and.
each member of the MBRT, I will provide notifi,-ation to all parties that the MBI has been
modified,
CONCUR: Sponsor
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By: Date: T
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Thank you for your time and cooperation. If yo.: have any questions, please contact me at the
Washington Regulatory Field Office, telephone (9 i')) 975-1616, extension 22.
Sincere'v,
David .A LAson,P.W.S.
Chief, ? 'ashingtun Regulatoryy Field Office

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