20001024 Ver 1_More Info Received_20080922

-DWQ * 2000 10-2-4
AGREEMENT TO ESTABLISH THE BEAR CREEK-MILL BRANCH MITIGATION
BANK IN LENOIR AND CRAVEN COUNTIES, NORTH CAROLINA
This Mitigation Banking Instrument (MBI) is made and entered into on the day of
, 2002, by Restoration Systems, LLC (the Sponsor), and the U.S. Army Corps of
Engineers (Corps), and each of the following agencies, upon its execution of this MBI: the U.S.
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),
and the North Carolina Division of Water Quality (NCDWQ). The Corps, together with the State
and Federal agencies that execute this MBI, are hereinafter collectively referred to as the Mitigation
Bank Review Team (MBRT).
WHEREAS the purpose of this agreement is to establish a mitigation bank (Bank) providing
compensatory mitigation for unavoidable wetland impacts separately authorized by Section 404
Clean Water Act permits in appropriate circumstances; and
WHEREAS the Sponsor is the record owner of, or has entered into contracts to purchase,
certain parcels of land containing approximately 448 acres located in Lenoir and Craven Counties,
North Carolina, described in the Bear Creek-Mill Branch Wetlands Mitigation Plan, dated September
1999 (Mitigation Plan; referenced in this MBI as Appendix A - Title Page only), as shown on the
attached survey, and as supplemented by Regional Wetland Preservation Areas described in
Appendix B of this MBI (collectively, the Bank Property).
WHEREAS the agencies comprising the Mitigation Bank Review Team agree that the Bank
Property is a suitable mitigation bank site, that implementation of the Mitigation Plan is likely to
result in net gains in wetland functions at the Bank Property, and have therefore approved the
Mitigation Plan;
THEREFORE, it is mutually agreed among the parties to this MBI that the following
provisions are adopted and will be implemented upon signature of this MBI.
General Provisions
1. The goal of the Bank is to restore, enhance, and preserve nontidal, riverine forested, shrub-
scrub, and emergent wetland systems and their functions and values to compensate in appropriate
circumstances for unavoidable riverine wetland impacts authorized by Section 404 of the Clean
Water Act in circumstances deemed appropriate by the Corps after consultation, through the permit
review process, with members of the MBRT.
2. Use of credits from the Bank to offset wetland impacts authorized by Clean Water Act
permits must be in compliance with the Clean Water Act and implementing regulations, including
but not limited to the 404(b)(1) Guidelines, the National Environmental Policy Act, and all other
applicable Federal and State legislation, rules and regulations. This agreement has been drafted
following the guidelines set forth in the proposed "Federal Guidance for the Establishment, Use and
the Operation of Mitigation Banks," 60 Fed. Rea. 58605, November 28, 1995 (Guidance).
3. The MBRT shall be chaired by the representative of the Corps, Wilmington District. The
MBRT shall review monitoring and accounting reports as described below. In addition, the MBRT
will review proposals for remedial actions proposed by the Sponsor, or any of the agencies
represented on the MBRT. The MBRT's role and responsibilities are more fully set forth in Sections
II.C.3 and 6 of the Guidance. The MBRT will work to reach consensus on its actions.
4. The Corps. 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 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, NCDWQ will determine the amount of credits that can be
withdrawn from the Bank.
5. The parties to this MBI 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.
Mitigation Plan
6. The Bank is comprised of 448 acres of riverine floodplains located along Bear Creek (fourth
order stream) and the Neuse River (fifth order stream) in Lenoir and Craven Counties, North
Carolina. The Bank includes a 145-acre Core Wetland Restoration Area situated on the farmed
floodplains of Bear Creek and Mill Branch. The Bank also includes preservation of 303 acres of
Regional Wetland Preservation Areas within the wetland and wildlife corridor designed to augment
regional functions associated with the Core Wetland Restoration Area. The selected Regional
Wetland Preservation Areas are depicted and described in Appendix B and C. A more detailed
description of the baseline conditions of the Bank is contained in the Mitigation Plan. In the event
that statements in the Mitigation Plan are not consistent with this MBI, this MBI shall take
precedence over the Mitigation Plan.
7. The Sponsor will perform the work described in the Mitigation Plan, in compliance with
Nationwide Permit #27 authorization, Action ID 199910581, issued on January 11, 2001 (the
Permit). Protection of the Regional Wetland Preservation Areas is also proposed. The purpose of
the work, and the objective of the Bank, is to restore 88 acres of former wetlands to riverine forested
wetlands, to enhance 34 acres of existing riverine forested wetlands; to preserve 303 acres of riverine
forested wetlands, and to restore 23 acres of upland buffers located immediately adjacent to restored
wetlands.

8. The Sponsor shall monitor the Bank Property as described in Section 6.0 (pages 75-80) of
the Mitigation Plan, for a minimum of 5 years or until success criteria are met, whichever is longer.
9. The Sponsor is responsible for assuring the success of the restoration, enhancement and
preservation activities at the Bank Property, and for the overall operation and management of the
Bank.
10. The Sponsor shall provide to each member of the MBRT the reports described on page 80
of the Mitigation Plan.
11. The Corps shall review said reports, and may, at any time, after consultation with the Sponsor
and the MBRT, direct the Sponsor to take remedial action at the Bank Property. Remedial action
required by the Corps shall be designed to achieve the success criteria specified above. All remedial
actions required under this paragraph shall include a work schedule and monitoring criteria that will
take into account physical and climactic conditions,
12. The Sponsor shall implement any remedial measures required pursuant to the above.
13. In the event the Sponsor determines that remedial action may be necessary to achieve the
required success criteria, it shall provide notice of such proposed remedial action to all members of
the MBRT. No remedial actions shall be taken without the concurrence of the Corps, in consultation
with the MBRT.
14. The members of the MBRT will be allowed reasonable access to the Bank Property for the
purposes of inspection of the Bank Property and compliance monitoring of the Mitigation Plan.
Use of Mitigation Credits
15. The Geographical Service Area (GSA) is the designated area wherein a bank can reasonably
be expected to provide appropriate compensation for impacts to wetland or other aquatic resources.
The GSA for this Bank shall include the Neuse River Basin Hydrologic Unit 03020202 in North
Carolina (Appendix D). Use of the Bank to compensate for impacts beyond the geographic service
area may be considered by the Corps or the permitting agency on a case-by-case basis.
16. The Mitigation Plan is intended to result in the forms, amounts and types, in acres, of
compensatory mitigation depicted in Table 1.
17. Successful implementation of the Mitigation Plan will result in the establishment of the
number of mitigation credits categorized by form and type as depicted in Table 1. It is anticipated
by the parties to this agreement that use of mitigation credits shall be "in-kind;" that is, riverine
wetland credits will be used to offset riverine wetland impacts.
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18. It is anticipated by the parties that in most cases in which the Corps, after consultation with
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 impacts, two credits will be debited
from the Bank. One of those credits must be a restoration credit; the remaining credit will be made
up of any combination of restoration, enhancement, or preservation credits, as selected by the
Sponsor and approved by the Corps during its permit process. Deviations from this compensation
ratio may be authorized by the Corps on a case-by-case basis where justified by considerations of
functions of the wetlands impacted, the severity of the wetland impacts, whether the compensatory
mitigation is in-kind, and the physical proximity of the wetland impacts to the Bank Property, except
that in all cases, a minimum of a one-to-one ratio of impact acres to restoration mitigation credits
(acres) must be met.
19. 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 Section 404 of the Clean Water Act
and implementing regulations and guidance, after notice of any proposed use of the Bank to the
members of the MBRT, and consultation with the members of the MBRT concerning such use.
Notice to and consultation with the members of the MBRT shall be through the permit review
process.
20 Fifteen percent (15%) of the Bank's total 165.6 credits shall be available for sale immediately
upon completion of all the following:
Execution of this MBI by the Sponsor, the Corps, and other agencies eligible for
membership in the MBRT who choose to execute this agreement which shall
constitute approval of the Mitigation Plan. as modified by this MBI;
b. Delivery of the financial assurances described in paragraph 24 of this MBI;
Recordation of the preservation mechanism described in paragraph 23 of this MBI,
as well as a title opinion covering the property acceptable to the Corps.
Additionally, the Sponsor must complete the initial physical and biological improvements to the
Bank Property pursuant to the Mitigation Plan no later than the first frill growing season following
initial debiting of the Bank.
21. Subject to the Sponsor's continued satisfactory completion of all required success criteria and
monitoring, additional restoration mitigation credits will be available for sale by the Sponsor on the
following schedule:
- 10% after first year, if interim success measures are met (total 25%);
- 10% after second year; if interim success measures are met (total 35%);
- 10% after third year; if interim success measures are met (total 45%);
- 15% after fourth year; if interim success measure are met (total 60%);
- 15% after fifth year; if Success Criteria are met (total 75%); and
- 25% after fifth year, if the Bank meets the overall objectives and Success Criteria set
forth in mitigation plan (total 100%).
The above schedule applies only to the extent the Sponsor is able to document acceptable survival
and growth ofplanted vegetation, and attainment of acceptable wetland/stream hydrology is achieved
as described under the success criteria. in the monitoring section of the Mitigatiori?Plan. The-f nal
25% of credits will be available for sale only upon a determination by the MBRT~of functional
success as defined in the Mitigation _-Plan.
22. The Sponsor shall develop accounting procedures acceptable to the MBRT for maintaining
accurate records of debits made from the Bank. Such procedures shall include the generation of a
report by the Sponsor showing credits used at the time they are debited from the Bank, which the
Sponsor shall provide within 30 days of the debit to each member of the MBRT. In addition, the
Sponsor shall prepare an annual report, on each anniversary of the date of execution of this
agreement, showing all credits used, and the balance of credits remaining, to each member of the
MBRT, until such time as all of the credits have been utilized, or this agreement is otherwise
terminated. All reports shall identify credits debited and remaining by type of credit (e.g. riverine
wetland), and shall include for each reported debit the Corps Action ID number for the permit for
which the credits were utilized.
Property Disposition
23. Upon signing of the MBI, the Sponsor will grant Conservation Easements for all Bank
Property (including Regional Wetland Preservation Areas) to the North Carolina Coastal Land Trust
(NCCLT), in a form acceptable to the MBRT (Appendix G), sufficient to protect the Bank Property
in perpetuity, or shall fund the acquisition of such an easement or fee simple ownership of Bank
Property by NCCLT. The Conservation Easements shall be perpetual, preserve all natural areas, and
prohibit all use of the Bank Property inconsistent with its use as a mitigation property, including any
activity that would materially alter the biological integrity or functional and educational value of
wetlands within the Bank Property, consistent with the Mitigation Plan. However, it is recognized
that limited silvicultural activity may be conducted on Bank Property to maintain the continued
health and integrity of the Bank Property, with review and approval of the MBRT. Efforts will be
undertaken to maintain densities of non-pines greater than 10 inches in diameter at or greater than
60 square feet basal area per acre in order to provide adequate foraging potential for mast-consuming
wildlife.
The Sponsor shall deliver a title opinion acceptable to the Corps covering the Bank Property. The
property shall be free and clear of any encumbrances that would conflict with its use as mitigation,
including, but not limited to, any liens that have priority over the recorded preservation mechanism.
6
Financial Assurances
24. The Sponsor shall provide financial assurances in a form acceptable to the MBRT sufficient
to assure completion of all remaining mitigation work, required reporting and monitoring, and any
remedial work required pursuant to this MBI. The Sponsor shall establish the following assurances:
a) The Sponsor has provided a construction performance bond in the amount of
$2,258,050.00 to the N.C. Department of Transportation (NCDOT). The
construction performance bond for the Bank is included in Appendix H. To the
extent necessary, the Sponsor shall extend or renew the construction performance
bond in an amount sufficient to insure that any uncompleted construction activities
called for in the Mitigation Plan will be performed. and NCDOT shall, during the
term of its contract with the Sponsor, require the Sponsor to effect any necessary
extension or renewal. NCDOT has entered into a contractual agreement to purchase
wetland credits generated by the Bank. Therefore, NCDOT represents the State
agency that holds the construction performance bond. The construction bond will be
held by NCDOT until as-built plans are submitted and approved by the MBRT and
NCDOT. Following NCDOT and MBRT approval of the as-built plans, the
construction bond shall be returned to the Sponsor.
b) The Sponsor has provided a monitoring, maintenance, and remediation bond to
NCDOT in the amount of $536,000.00. The monitoring, maintenance, and
remediation bond is included in Appendix H. The bond ensures that the Bank will
be monitored, maintained, and, if necessary, remediated by the Sponsor as stated in
the Mitigation Plan for 5 years or until success criteria are achieved. The Sponsor
shall renew or extend such bond in an amount sufficient to ensure that all monitoring,
maintenance, and remediation activities required by the Mitigation Plan are
performed, and NCDOT shall; during the term of its contract with the Sponsor,
require the Sponsor to effect any necessary extension or renewal.
In the event that the Sponsor defaults on its obligations to perform construction activities called for
in the Mitigation Plan, NCDOT agrees to exercise its rights underthe construction performance bond
to ensure, to the maximum extent possible consistent with the terms of the construction performance
bond, that the construction activities called for by the Mitigation Plan are completed.
In the event that the Sponsor defaults on its obligations to perform monitoring, maintenance, and
remediation activities called for in the Mitigation Plan, NCDOT agrees to exercise its rights under
the monitoring, maintenance, and remediation bond to ensure, to the maximum extent possible
consistent with the terms of the monitoring, maintenance, and remediation bond, that the monitoring,
maintenance and remediation activities called for by the Mitigation Plan are completed.
7
Long-Term Management
25. The Sponsor will provide a trust fund of $35,000.00 to NCCLT for long-term maintenance,
management, and remedial actions within the Bank, after the minimum, five-year monitoring period.
Miscellaneous
26. Any agency participant may terminate its participation in the MBRT with notice in writing
to all other parties to this agreement. Termination shall be effective seven (7) days from placing said
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 MBI. Except for
termination as described above, this agreement may be modified only with the written agreement of
all remaining parties to this agreement at the time of the modification.
27. Any delay or failure of the 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, 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 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, the Sponsor shall give written notice thereof to the MBRT as soon as it is reasonable
and 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 MBRT.
28. 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.
29. This MBI constitutes the entire agreement between the parties concerning the subject matter
hereof and supersedes all prior agreements or undertakings.
30. 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.
31. This MBI shall be governed by and construed in accordance with the laws of North Carolina
and the United States as appropriate.
32. 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.
33. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of the
parties hereto and their respective successors.
34. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below:
Sponsor:
Mr. George Howard, President
Restoration Systems
1101 Haynes Street, Suite 203
Raleigh, North Carolina 27604
[phone]
Corps:
Mr. David Lekson
U. S. Army Corps of Engineers
Post Office Box 1890
Washington, NC 27889-1000
[phone]
EPA:
Ms. Kathy Matthews
Environmental Protection Agency
980 College Station Road
Athens, GA 3 0605
[phone]
FWS:
Mr. Howard Hall
U. S. Fish and Wildlife Service
Fish and Wildlife Enhancement
P. 0. Box 33726
Raleigh, NC 27636
[phone]
NMFS
Mr. Ron Sechler
National Marine Fisheries, NOAA
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
9
NCWRC:
Mr. Bennett Wynne
North Carolina Wildlife Resources Commission
901 Laroque Ave.
Kinston, NC 28501
[phone]
NCDWQ:
Mr. John Dorney
North Carolina Division of Water Quality
1621 Mail Service Center
Raleigh, NC 27699-1621
[phone]
10
,ECF1VED

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Bear Creek-Mill Branch Mitigation Bank In Lenoir and
Craven Counties, North Carolina":
Restoration Systems, LLC:
By:
U.S. Army Corps of En 'neers:
By, a,
Charles R. Alexande Jr.
Colonel, U.S. Army
District Engineer
Date: ti+ti C, ,.
--T
Date: Z? L-
11

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Bear Creek :Mill Branch Mitigation Bank In Lenoir and
Craven Counties, North Carolina":
U.S. Environmental Protection
By Date: Z
U.S. Fi Wild ife Service:
By: Date:
National Marine Fisheries Service:
By: Date:
N.C. Division of Water Quality:
By: Date:
N.C. Wildlife Resources Commission:
By: Date:
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Bear Creek-Mill Branch Mitigation Bank In Lenoir and
Craven Counties, North Carolina":
U--S- Environmental Protection Agency:
By:
Date:
U.S. Fish and Wildlife Service:
By:
National Marine Fisheries Service:
Date: r /8- d2
By:
N.C. Division of Water Quality:
Date:
By:
Date:
N.C. Wildlife Resources Commission:
By:
Date:
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Bear Creek-Mill Branch Mitigation Bank In Lenoir and
Craven Counties, North Carolina":
U.S. Environmental Protection Agency:
By: Date:
U.S. Fish and Wildlife Service:
By: Date:
National Marine Fisheries Service:
By: Date:
N.C. Division of Water Quaiity:
By: Date:
N.C. Wildlife Resources Commission:
By: Date: Qp
S?
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement to Establish The Bear Creek-Mill Branch Mitigation Bank in Lenoir and Craven
Counties, North Carolina":
Restoration Systems, LLC:
By: Date:
U. S. Army Corps of Engineers:
By: Date:
U. S. Environmental Protection Agency:
By: Date:
U. S. Fish and Wildlife Service:
By: Date:
National Marine Fisheries Service:
By: Date:
N. C. Division of Water Quality:
By: Date:
N. C. Wildlife Resources Commission:
By: Date:
With respect to paragraphs 24 and 28-34 only,
N.C. Department of Transportation:
By: ?? J
Date:
y ?,? J g A00 2

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Bear Creek-Mill Branch Mitigation Bank In Lenoir and
Craven Counties, North Carolina":
Restoration Systems, LLC:
By:
Date: e- ? O
U.S. Army Corps of Engineers:
By:
Charles R. Alexander, Jr.
Colonel, U.S. Army
District Engineer
Date:
11
Opk, ?1 0)--
IN WITNESS WHEREOF, the pa/Creek-Mill to have executed this Agreement entitled
"Agreement To Establish The BeBranch Mitigation Bank In Lenoir and
Craven Counties, North Carolina'
U.S. Environmental Protection Agency:
By:
J.S. Fish and Wildlife Service:
Date:
By: Date:
National Marine Fisheries Service:
By: Date:
N.C. D* ision of Water Quality:
B Date: ? 2" 0
2-
N.C. ildlife Resources Com mizinn
By: Date:
12