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HomeMy WebLinkAbout20141149 Ver 1_Mitigation Bank Information_20170404r 4 04 April 2017 Mr. David Bailey Regulatory Project Manager U.S. Army Corps of Engineers 3331 Heritage Trade Drive, Suite 105 Wake Forest, North Carolina 27587 @[� b 70�0 6 2017 RE: SUBMITAL OF PROPOSED FINAL CAPE FEAR 02 UMBRELLA MITIGATION BANK (2014 -SAW -00657) MITIGATION BANKING INSTRUMENT AND PHASE I BANK SITE MITIGATION PLANS Dear Mr. Bailey: Restoration Systems (Sponsor) is pleased to submit the accompanying proposed final versions of the Umbrella Mitigation Banking Instrument (UMBI) and its associated Phase I Bank Site Mitigation Plans (Mitigation Plans) for our Cape Fear 02 Umbrella Mitigation Bank (Bank; 2014 -SAW -00657). As you will notice, the UMBI and the Mitigation Plans were edited according to IRT comments provided by you on February 24 and March 13, 2017. Please note that we have provided hardcopies of this submission to all project IRT members. With each set of copies, we have provided "tear away" signature pages so that each IRT member can sign and return to your agency, following the receipt of the U.S. Army Corps of Engineers' Notification of Intent to sign the accompanying UMBI. 1101 Haynes St., Suite 211 • Raleigh, NC 27604 • www.restorationsystems.com • Ph 919.755.9490 • Fx 919.755.9492 If you have any questions or require any additional information, please do not hesitate to contact Adam Riggsbee (512-970-3062), Worth Creech (919-389-3888) or me. Thank you for working with us on this project. We sincerely appreciate your efficient and professional review of our submissions. Sincerely, C John Preyer President cc: Todd Tugwell, USACE Andrea Hughes, USACE Todd Bowers, EPA Kathy Matthews, USFWS Karen Higgins, NCDWR Sue Homewood, NCDWR Virginia Baker, NCDWR Mac Haupt, NCDWR Olivia Munzer, NCWRC Ken Riley, NMFS Doug Huggett, NCDCM Worth Creech, Restoration Systems, LLC Grant Lewis, Axiom Environmental, Inc Adam Riggsbee, RiverBank Conservation, LLC Enclosures (5) 11'01 Haynes St., Suite 211 • Raleigh, NC 27604 • www.restorationsystems.com • Ph 919.755.9490 • Fx 919.755.9492 Cape Fear 02 Umbrella Mitigation Bank St esdale- m S__ field �I - N a Ridgo �r_rNrmlN eutnel I, rmrmTTMA6 ).Mb rwn.Peeatr &wingsorr `Greensboro 'mac - i¢auiarow � .ur�rciRaarwARRr- IgRA.r High l'Olnl* A•a! 54 ch&W Hill, .ORMMRDANLfK IA/[ ni Y� A J, 1,eh.vo F"M bw0 _ It FrRnrr Jard- r:kR HOPY MITIGATION BANKING INSTRUMENT & PHASE I BANK SITE MITIGATION PLANS March 2017 Prepared for: Prepared by: RiverBank CONSERVATION Axiom Environmental, Inc. AGREEMENT TO ESTABLISH THE CAPE FEAR 02 UMBRELLA MITIGATION BANK WITHIN THE STATE OF NORTH CAROLINA U.S. Army Corps of Engineers (Corps) approval of this Instrument constitutes the regulatory approval required for the CAPE FEAR 02 UMBRELLA MITIGATION BANK to.be'used to provide compensatory mitigation for Department of the Army permits pursuant to 33 CFR 332.8(a)(1). This Instrument is not a contract between the Sponsor or Property Owner and Corps or any other agency of the federal government. Any dispute arising under this Instrument will not give rise to any claim by the Sponsor or Property Owner for monetary damages. This provision is controlling notwithstanding any other provision or statement in the Instrument to the contrary. This Umbrella Mitigation Banking Instrument (UMBI) is made and entered into on the day of , 2016, by Restoration Systems, LLC (Sponsor) and the Corps, and each of the following agencies, upon its execution of this UMBI, the Environmental Protection. Agency (EPA),, the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), the North Carolina Wildlife Resources Commission (NCWRC), the State Historic Preservation Office (SHPO) and the North Carolina Division of Water Resources (NCDWR). The Corps, together with the State and Federal agencies that execute this UMBI, are hereinafter collectively referred to as the Interagency Review Team (IRT). WHEREAS the purpose of this agreement is to establish an umbrella mitigation bank (Bank) providing compensatory mitigation for unavoidable wetland and/or stream impacts separately authorized by Section 404 Clean Water Act permits and /or Section 10 of the Rivers and Harbors Act permits in appropriate circumstances; WHEREAS the agencies comprising the IRT agree that the Bank Sites are suitable mitigation sites, and that implementation of the Mitigation Plans are likely to result in net gains in wetland and/or stream functions at the Bank Sites, and have therefore approved the Mitigation Plans; THEREFORE, it is mutually agreed among the parties to this agreement that the following provisions are adopted and will be implemented upon signature of this UMBI. Section I: General Provisions A. The Sponsor is responsible for assuring the success of the restoration, enhancement and preservation activities at the Bank Sites, and for the overall operation and management of the Bank. The Sponsor assumes the legal responsibility for providing the compensatory mitigation once a permittee secures credits from the Sponsor and the District Engineer (DE) receives documentation that confirms the Sponsor has accepted responsibility for providing the required compensatory mitigation. B. The goal of the Umbrella Bank is to restore, enhance and preserve perennial and intermittent stream systems, and associated riparian wetland systems, and their functions to compensate in appropriate circumstances for unavoidable wetland and/or stream impacts authorized by Section 404 of the Clean Water Act permits and/or Section 10 of the Rivers and Harbors Act permits in circumstances deemed appropriate by the Corps after consultation, through the permit review process, with members of the IRT. C. Use of credits from the Bank to offset wetland and/or stream impacts authorized by Clean Water Act permits must be in compliance with the Clean Water Act and implementing regulations, including but not limited to the 4.04(b)(1) Guidelines, the National Environmental Policy Act, and all other applicable Federal and State legislation,. rules and regulations. This agreement has been drafted in accordance with the regulations for Compensatory Mitigation for Losses of Aquatic Resources effective June 9, 2008 (33 CFR Parts 325 and 332) (Mitigation Rule). D. The IRT shall be chaired by the DE of the Corps, Wilmington District (District). The IRT shall review documentation for the establishment of Bank Sites. The IRT will also advise the DE in assessing monitoring reports, recommending remedial measures, approving credit releases, and approving modifications to this instrument. The IRT's role and responsibilities are more fully set forth in Sections 332.8 of the Mitigation Rule. The IRT will work to reach consensus on its actions. E. The DE, after consultation with the appropriate Federal and State review agencies through the permit review process, shall make final decisions concerning the amount and type of compensatory mitigation to be required for unavoidable, permitted wetland and/or stream impacts, and whether or not the use of credits from the Bank is appropriate to offset those impacts. In -the case of permit applications and compensatory mitigation required solely under the Section 401 Water Quality Certification rules of North Carolina, the NCDWR will determine the amount of credits that can be withdrawn from the Bank. Any credits used to offset impacts solely authorized by Section 401 cannot be used for other impacts authorized under Section 4.04 of the Clean Water Act or Section 10 of the Rivers and Harbors Act. F. The parties to this agreement understand that a watershed approach to establish compensatory mitigation must be used to the extent appropriate and practicable. Where practicable, in-kind compensatory mitigation is preferred. Section II: Geographic Service Area The Geographic Service Area (GSA) is the designated area within which the Bank is authorized to provide compensatory mitigation required by DA permits. The GSA for this Bank shall be comprised of all areas contained within the Haw River basin, or Hydrologic Unit Code (HUC) 03030002 in North Carolina (Appendix A). Credits must be used in the same 8 -digit HUC in which they were generated, and credits should be tracked on separate ledgers for each Bank, Site. Use of a Bank Site to compensate for impacts beyond the GSA may be considered by the Corps or the permitting agency on a case-by-case basis. Section III: Mitigation Plans Any Mitigation Plan submitted pursuant to this LIMBI must contain the information listed in 332.4(c)(2) through (14) of the Compensatory Mitigation Rule. A. The Sponsor will perform work described in all approved Mitigation Plans. B. The Sponsor shall monitor Bank Sites as described in the approved Mitigation Plan(s), until such time as the IRT determines that the performance standards described in the Mitigation Plan(s) have been met. C. Mitigation Plans submitted for inclusion in this bank (Appendix B) must meet the requirements of any District guidance that is current at the time the proposed Bank Site is submitted to the District and determined complete, including any updates made to monitoring requirements, credit releases, long term management, or any other provisions that are required and/or specifically addressed in the Mitigation Plan. The addition of any site to this instrument shall be considered as a modification to this instrument, and processed in accordance -with the procedures set forth in the Mitigation Rule. D. Authorized representatives of the IRT agencies will be allowed reasonable access to Bank Site properties for the purposes of inspection and monitoring compliance for all.Mitigation Plans associated with this instrument. Section IV: Reporting A. The Sponsor shall submit to the DE, for distribution to each member of the IRT, an annual report describing the current condition of the Bank Sites and the condition of the Bank Sites in relation to the performance standards in the Mitigation Plan(s). The Sponsor shall provide to the DE any monitoring reports described in the Mitigation Plan(s). B. As part of each annual monitoring report, the Sponsor shall also provide ledger reports documenting credit transactions as described in Section VIII of this LIMBI. C. Each time an approved credit transaction occurs, the Sponsor shall provide notification to the DE within 30 days of the transaction. This notification shall consist of a summary of the transaction and a full ledger report reflecting the changes from the transaction. Additionally, signed copies of the Compensatory Mitigation, Transfer of Responsibility Form shall be submitted to the Corps Project Manager for the permit and the Corps Bank Manager for the Bank Site. Section V: Remedial Action A. The DE shall review the monitoring reports, as required in the Mitigation Plan(s), and may, at any time, after consultation with the Sponsor and the IRT, direct the Sponsor to take remedial action at the Bank Site(s). Remedial,action(s) required by the DE shall be designed to achieve the performance standards as specified in the Mitigation-Plan(s). All remedial actions required under this section shall include a work schedule and monitoring criteria that will take into account physical and climactic conditions. B. The Sponsor shall implement any remedial measures required pursuant to the above. C. In the event the Sponsor -determines that remedial action may be necessary to achieve the required performance standards, it shall provide notice of such proposed remedial action to all members of the IRT. No remedial actions shall be taken without the concurrence of the DE, in consultation with the IRT. Section VI: Use of.Mitigation Credits A. Description of credit classifications and provisions pertaining to the use of those credits shall be provided in the Mitigation Plan(s) to be included in this Bank. Credit classifications (e.g., cold water stream, cool water stream, warm water stream, coastal wetlands, non -riparian wetlands, riparian non-riverine wetlands, and riparian riverine wetlands) will be in accordance with current District guidance at the time the Mitigation Plan is submitted to the District. In general, these classifications will be used to determine if a particular credit qualifies as "In - Kind" mitigation. Exceptions to the use of "In -Kind" mitigation may be allowed at the discretion of the permitting agencies on a case-by-case basis. B. Wetland and stream compensation ratios are determined by the DE on a case-by-case basis based on considerations of functions of the wetlands and/or streams impacted, the severity of the wetland and/or stream impacts, the relative age of the Bank Site, whether the compensatory mitigation is in-kind, and the physical proximity of the wetland and/or stream impacts to the Bank Site. C. Notwithstanding the above, all decisions concerning the appropriateness of using credits from the Bank Sites to offset impacts to waters and wetlands, as well as all decisions concerning the amount and type of such credits to be used to offset wetland and stream impacts authorized by Department of the Army permits, shall be made by the DE, pursuant to Section 404 of the Clean Water Act and implementing regulations and guidance. These decisions may include notice to and consultation with the members of the IRT through the permit review process if the DE determines this to be appropriate given the scope and nature of the impact. Section VII: Credit Release Schedule A. All credit releases must be approved in writing by the DE, following consultation with the IRT; based on a determination that required performance standards have been achieved. B. A credit release schedule shall be provided in the site-specific Mitigation Plan(s) that are included in the Bank. The credit release schedule will list all of the proposed credit releases and any performance standards associated with those releases. C. In general, the initial allocation of credits from any site included as part of this bank shall be available for sale only after the completion of all of the following: 1. Execution of this UMBI by the Sponsor, the DE, and other agencies eligible for membership in the IRT who choose to execute this UMBI, to include the approval of any modifications to this agreement when new sites are added to it; 2. Approval of a final Mitigation Plan(s); 3. Confirmation that the Bank Site(s) have been secured; 4. Delivery of executed financial assurances as specified in the site-specific Mitigation Plan(s); 5. Delivery of a copy of the recorded long-term protection mechanism as described in the site-specific Mitigation Plan(s), as well as a title opinion covering the property acceptable to the DE; and 6. Issuance of any DA permits necessary for construction of the Bank Site(s). The Sponsor must initiate construction of the physical and biological improvements proposed in the approved Mitigation Plans no later than the end of the first full growing season following the initial sale of credits from each Bank Site. This provision does not apply to preservation -only sites that do not include any physical or biological improvements. Subject to the Sponsor's continued satisfactory completion of all required performance standards and monitoring, additional restoration mitigation credits will be available for sale by the Sponsor as specified in the final Bank Site Mitigation Plan(s). Section VIII: Accounting Procedures A. The Sponsor shall develop accounting procedures acceptable to the DE for maintaining accurate records of debits made from the Bank Sites. Such procedures shall include the generation of a ledger for each Bank Site, by the Sponsor, detailing credits used at the time they are debited from the Bank. All ledger reports shall identify credits debited and remaining by type of credit and shall include for each reported debit the Corps ORM ID number for the DA permit for which the credits were utilized and the permitted impacts for each resource type. B. Each time an approved credit transaction occurs, the Sponsor shall notify the DE within 30 days of the transaction with a summary of the transaction and a full ledger report showing the changes made. Signed copies of the Transfer of Mitigation Responsibility form shall also be submitted to the Corps permit Project Manager -and the Corps Bank Manager for the Bank Site. C. The Sponsor shall prepare an annual ledger report, on each anniversary of the date of execution of this agreement, showing all credits used, any changes in credit availability (e.g., additional credits released, credit sales, suspended credits, etc.), and ,the beginning and ending balance of remaining credits. The Sponsor shall submit the annual report to the DE, for . distribution to each member of the IRT, until such time as all of the credits have been utilized, or this agreement is otherwise terminated. Section IX: Financial Assurances A. Financial assurances for the Bank Sites will be detailed in the site-specific Mitigation Plan(s). The Sponsor shall provide financial assurances in a form acceptable to the DE, sufficient to assure completion of all mitigation work, required reporting and monitoring; and any remedial work required pursuant to this UMBI. The financial assurance value should be based on the cost of doing the mitigation work, including costs for land acquisition (if applicable), planning and engineering, legal fees, mobilization, construction, and monitoring. For preservation only Bank Sites, no financial assurances will generally be required unless there are specific activities necessary to ensure the successful preservation of resources on the site, in which case appropriate financial assurances may still be required. B. All financial assurances shall be made payable to a standby trust or to a third -party designee, acceptable to the Corps, who agrees to complete the project or provide alternative mitigation. Financial assurances structured to provide funds to the Corps in the event of default by the Bank Sponsor are not acceptable. C. The form and amount of financial assurances must be stated in the Mitigation Plan for each Bank Site in order for the Mitigation Plan to be approved. This must include the name of the specific provider of those assurances and the method by which the financial assurances will be provided in the event that they must be utilized. Original copies of the financial assurance documents must be provided to the DE prior to the initial release of credits. D. A financial assurance must be in the form that ensures that the DE receives notification at least 120 days in advance of any termination or revocation. Section X: Site Protection A. The Sponsor shall grant a Conservation Easement (CE) in a form acceptable to the DE, sufficient to protect the Bank Site(s) in perpetuity. The CE shall be perpetual, preserve all natural -areas, and prohibit all uses of the property inconsistent with its use as mitigation property, including any activity that would materially alter the biological integrity or functional. and educational value of wetlands or streams within the Bank Site(s), consistent with the Mitigation Plan(s). The purpose of the CE will be to assure that future use of the Bank Site(s) NI will result in the restoration, protection, maintenance and enhancement of wetland and/or stream functions described in the Mitigation Plan(s). The name and contact information for the Corps approved easement holder and a copy of the CE template will be provided in the Bank Site Mitigation Plans(s). B. The Sponsor shall deliver a title opinion acceptable to the DE covering the Bank Site property. The property shall be free and clear of any encumbrances that would conflictwith .its, use as mitigation, including, but not limited to, any liens that have priority over the recorded CE. C. Subsequent to the recording of the CE, the Sponsor may convey the Bank Site property either in fee or by granting an easement to a qualified land trust, state agency, or other appropriate nonprofit organization approved by the Corps. The Sponsor is responsible f6r ensuring that the CE is re-recorded so that it remains within the chain of title. The terms and conditions of this conveyance shall not conflict with the intent and provisions of the CE nor shall such conveyance enlarge or modify the uses specified in the easement. The CE must contain a provision requiring 60 day advance notification to the DE before any action is taken to void or modify the CE, including transfer of title to, or establishment of any other legal claims over, the Bank Site. Section XI: Long-term Management A. The Sponsor shall implement the long-term management plan as described in each site- specific Mitigation Plan. The name and contact information for the party responsible for long- term management will be included in all Bank Site Mitigation Plans. B. The long-term management plan will include a list of annual maintenance, monitoring, and/or repair activities for the Bank Site(s), the associated annual cost for each activity, and the required total amount necessary to provide all future site management. The long-term. management plan should explain how the funds will be managed and provided to the designated long-term manager (e.g., an endowment managed through a separate account holder). The long- term management plan should include a contingency section that addresses how the responsibility and funding for the long-term site management will be passed on to a new manager in the event that the selected long-term management entity is no longer able to provide for management of the site. Section XII: Default and Closure A. The Sponsor shall establish and/or maintain Bank Sites until (i) credits have been exhausted or banking activity is voluntarily terminated with written notice by the Sponsor provided to the DE and other members of the IRT; and (ii) it has been determined and agreed upon by the DE and IRT that the debited Bank Site has satisfied all the conditions herein and in the associated Bank Site Mitigation Plan. If the DE determines that the Bank Site is not meeting performance standards or complying with the terms of this LIMBI, appropriate action will be taken. Such actions may include, but are not limited to, suspending credit sales, adaptive management, decreasing available credits, utilizing financial assurances, and terminating the instrument. B. Any delay or failure of Sponsor shall not constitute a default.hereunder if and to the extent that such delay or failure is primarily caused by any act, event or conditions beyond the Sponsor's reasonable control and significantly adversely affects its ability to perform its obligations hereunder including: (i) acts of God, lightning, earthquake, Are, landslide, or interference by third parties; (ii) condemnation or other taking by any governmental body; (iii) change in applicable law, regulation, rule, ordinance or permit condition, or the interpretation or enforcement thereof; (iv) any order, judgment,. action or determination of any federal, state or local court, administrative agency or government body; or (v) the suspension or interruption of any permit, license, consent, authorization or approval. If the performance of the Sponsor is affected by any such event, Sponsor shall give written notice thereof to the IRT as soon as is reasonably practicable. If such event occurs before the final availability of all credits for sale, the Sponsor shall take remedial action to restore the property to its condition prior to such event, in a manner sufficient to provide adequate mitigation to cover credits that were sold prior to such delay or failure to compensate for impacts to waters, including wetlands, authorized by Department of the Army permits. Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate, as determined by the IRT. C. At the end of the Bank Site monitoring period, upon satisfaction of the performance standards, the Sponsor may submit a request to the DE for Bank Site close out. The DE, in consultation with the IRT, shall use best efforts to review and comment on the request within 60 days of such submittal. If the DE determines the Sponsor has achieved the performance standards in accordance with the Bank Site Mitigation Plan and all obligations under this LIMBI, the DE shall issue a close out letter to the Sponsor. Section XIII: Miscellaneous A. Any agency participant may terminate its participation in this agreement with notice in writing to all other parties to this agreement. Termination shall be effective seven (7) days from placing written notices in the United States mail. Member withdrawal shall not affect any prior sale of credits and all remaining parties shall continue to implement and enforce the terms of this UMBI. B. Modification of this UMBI shall be in accordance with the procedures set forth in 332.8 of the mitigation rule. C. 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. D. This UMBI constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements or undertakings. E. In the event any one or more of the provisions contained in this UMBI are held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceablility will not affect any other provisions hereof; and this UMBI shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. F. This UMBI shall be governed by and construed in accordance with the laws of North Carolina and the. United States as appropriate. ,G. This UMBI may be executed by the parties in any combination, in one or more counterparts; all of which together shall constitute but one and the same instrument. H. The terms and conditions of this UMBI shall be binding upon, and inure to the benefit of the parties hereto and their respective successors. I'All notices and required reports shall be sent by regular mail to each of the parties at their respective addresses, provided below. Sponsor: Mr. John Preyer Restoration Systems, LLC President 1101. Haynes Street, Suite 211 Raleigh, North Carolina 27604 Corps: Mr. David Bailey US. Army Corps of Engineers Regulatory Division 3331 Heritage Trade Drive, Suite 105 Wake Forest, North Carolina 27587 USEPA:: Mr. Todd Bowers Wetlands Section - Region IV Water Management Division U.S. Environmental Protection Agency 61 Forsyth Street, SW Atlanta, Georgia 30303 USFWS: Ms. Kathryn Matthews U.S. Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636-3726 NCWRC: Ms. Olivia Munzer North Carolina Wildlife Resources Commission Sykes Depot, 2430 Turner Road Mebane, North Carolina 27302 NCDWR: Mac Haupt Division of Water Resources North Carolina Department of Environment and Natural Resources Post Office Box 29535 Raleigh, North Carolina 27626-0535 NCSHPO State Historic Preservation Office Renee Gledhill -Earley 4617 Mail Service Center 109 E. Jones Street Raleigh, North Carolina 27699-4617 NMFS: Mr. Ken Riley National Marine Fisheries, NOAA Habitat Conservation Division Pivers Island . Beaufort, North Carolina 28516 NCDCM: Mr. Doug Huggett North Carolina Division of Coastal Management North Carolina Department of Environment and Natural Resources 400 Commerce Avenue Morehead City, North Carolina 28557 Le IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled "Agreement'To Establish The Cape Fear 02 Umbrella Mitigation Bank within the State of North Carolina": Sponsor: L-A U.S. Army Corps of Engineers: Date: By Date: II IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled "Agreement To Establish The Cape Fear 02 Umbrella Mitigation Bank, within the State of North Carolina": U.S. Environmental Protection Agency: By: Date: U.S. Fish and Wildlife Service: By: Date: N.C. Division of Water Resources: By: Date: N.C. Wildlife Resources Commission: By: Date: NC State Historic Preservation Office: By: Date: National Marine Fisheries Service: By: Date: N.C. Division of Coastal Management: By: Date: IN List of Appendices Appendix A: Geographic Service Area Map Appendix B: Bank Site Mitigation Plans 13 a' j 1 ��a. �'v + YET 'iy � � •� ��� •• i �� • � � `�r fF'l j I i► W + ''� a 1 i I .. I `p tW WS or, k 4( PO Fa 1616 lk At 2"1 ►_�i► �� � •���~ �r;u -� �lot PA mn MR, pw OF Ath f It 1 1� � / � . � ��' 'rte• � ��� ��- i F*� ) _ �" �� � . �y # y � 4 a � _ t _tea .� � ►. CT7 S <_ FM Ilk Ur A � 00 41k, t y 100 Ad, IS Legend iL Eq A 4 1 c� .71 •� i ., a ! ` ' Mss _;j� • , I" USGS Hydrologic 03030002 - 4 ~ * + f �-•► • �` �/• I,j• ` -(. • t t A r t • •i%s i� . .■ �4 �. /fir � J. moi• -� �� ��+10� .'I _. . ♦ / i r [�7��