20071843 Ver 1_Mitigation Info_20090107

REPLY TO
ATTENTION OF:
Regulatory Division
Action ID. 2003-00682
Ms. Virginia Williamson
Ocean Isle Investment Co.
11 Causeway Drive
Ocean Isle Beach, North Carolina 28469
Dear Ms. Williamson:
DENR - WATER QUALITY
WETLANDS AND STORMWATER BRANCH
Enclosed is one copy of the executed Mitigation Banking Instrument (MBI) establishing the
Stone Farm Regional Mitigation Bank located north of Georgetown Road (SR 1163) and east of
Seaside Road (SR 1165), adjacent to the Little Caw Caw Canal/Creek and Drowned Bay, just
east of Calabash, Brunswick County, North Carolina.
Please be reminded that credits will not be available until Item 19 on page (7) of the MBI
has been executed, specifically (c) and (d). Once this item has been completed, a copy of the
documents must be provided to our office for confirmation.
If you have any questions or comments, please contact Mr. Mickey Sugg at the Wilmington
Regulatory Field Office, telephone [phone].
Sincerely,
Samuel K. Jolly, Chi
Wilmington Regulatory Division
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
January 5, 2009 El§ k-L:7 U?- o?LS D
JAN 7 2009
Enclosure

Copies Furnished (with enclosure):
Mr. DeCarol Williamson
Ocean Isle Investment Co.
2618 New Village Way
Wilmington, North Carolina 28405
Ms. Ladane Williamson
Ocean Isle Investment Co.
Post Office Box 2588
Shallotte, North Carolina 28459
Messrs. Brent Manning and Christian Preziosi
Land Management Group, Inc.
Post Office Box 2522
Wilmington, North Carolina
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636-3726
Ms. Tammy Hill
Division of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626-0535
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Wetlands Regulatory Section- Region IV
109 T.W. Alexander Drive
Durham, North Carolina 27711
-2-
Mr. Jim Gregson
Division of Coastal Management
Department of Environment
and Natural Resources
400 Commerce Avenue
Morehead City, North Carolina 27699-1638
Ms. Molly Ellwood
N.C. Wildlife Resources Commission
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Copies Furnished (without enclosure):
Ks ndi Karoly
n of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626-0535
Mr. Tom C. Welborn, Chief
Wetlands Section - Region IV
Water Management Division
Environmental Protection Agency
61 Forsyth Street
Atlanta, Georgia 30303-8960
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636-3726
Mr. Steve Everhart
Division of Coastal Management
Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF:
Regulatory Division
Action ID. 2003-00682
Ms. Virginia Williamson
Ocean Isle Investment Co.
11 Causeway Drive
Ocean Isle Beach, North Carolina 28469
Dear Ms. Williamson:
January 5, 2009 D
ID
? AN •? 2009
Sr? ???RBRt??H
S00
B
*100
Enclosed is one copy of the executed Mitigation Banking Instrument (MBI) establishing the
Stone Farm Regional Mitigation Bank located north of Georgetown Road (SR 1163) and east of
Seaside Road (SR 1165), adjacent to the Little Caw Caw Canal/Creek and Drowned Bay, just
east of Calabash, Brunswick County, North Carolina.
Please be reminded that credits will not be available until Item 19 on page (7) of the NMI
has been executed, specifically (c) and (d). Once this item has been completed, a copy of the
documents must be provided to our office for confirmation.
If you have any questions or comments, please contact Mr. Mickey Sugg at the Wilmington
Regulatory Field Office, telephone [phone].
Sincerely,
(1?1-1v? 14?
Samuel K. Jolly, Chi
Wilmington Regulatory Division
Enclosure
-2-
Copies Furnished (with enclosure):
Mr. DeCarol Williamson
Ocean Isle Investment Co.
2618 New Village Way
Wilmington, North Carolina 28405
Mr. Jim Gregson
Division of Coastal Management
Department of Environment
and Natural Resources
400 Commerce Avenue
Morehead City, North Carolina 27699-1638
Ms. Ladane Williamson
Ocean Isle Investment Co.
Post Office Box 2588
Shallotte, North Carolina 28459
Messrs. Brent Manning and Christian Preziosi
Land Management Group, Inc.
Post Office Box 2522
Wilmington, North Carolina
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636-3726
e ammy Hill
ivision of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626-0535
Mr. Ron Sechler
National Marine Fisheries Service
Pivers Island
Beaufort, North Carolina 28516
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Wetlands Regulatory Section- Region IV
109 T.W. Alexander Drive
Durham, North Carolina 27711
Ms. Molly Ellwood
N.C. Wildlife Resources Commission
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Copies Furnished (without enclosure):
Ms. Cyndi Karoly
Division of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, North Carolina 27626-0535
Mr. Tom C. Welborn, Chief
Wetlands Section - Region IV
Water Management Division
Environmental Protection Agency
61 Forsyth Street
Atlanta, Georgia 30303-8960
Mr. Howard Hall
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh North Carolina 27636-3726
Mr. Steve Everhart
Division of Coastal Management
Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
MITIGATION BANKING INSTRUMENT
STONE FARM REGIONAL MITIGATION BANK
IN BRUNSWICK COUNTY, NC
1.0 PREAMBLE
This Mitigation Banking Instrument (MBI) is made and entered into on the 5th day of January
2009, by Ocean Isle Investment Co., hereinafter Sponsor, and the U.S. Army Corps of Engineers
(USACE), 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 (USFWS), the
North Carolina Wildlife Resources Commission (NCWRC), North Carolina Division of Water
Quality (NCDWQ), and the North Carolina Division of Coastal Management (NC DCM). The
USACE, 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 the Stone Farm Regional Mitigation
Bank as a general-use bank site providing compensatory mitigation of unavoidable wetland and
stream impacts separately authorized by Section 404 Clean Water Act (CWA) permits and/or
Section 401 Water Quality Certifications in appropriate circumstances; and
WHEREAS the Sponsor is the record owner of fee simple title to that certain tract of land
encompassing 962 total acres (comprising 911 acres of compensatory mitigation and 51 acres of
upland buffer) located in Brunswick County, North Carolina, described in the Stone Farm
Regional Mitigation Bank Wetlands and Stream Mitigation Plan (Mitigation Plan) (Dated March
20, 2008), and as shown on the attached survey (Exhibit A).
WHEREAS the agencies comprising the MBRT agree that the Stone Farm Regional Mitigation
Bank site is a suitable mitigation bank site, and that the implementation of the Mitigation Plan is
likely to result in net gains in wetland and stream functions at the Bank site, and have therefore
approved the Mitigation Plan;
THEREFORE, it is mutually agreed among the parties to this agreement that the following
provisions are adopted and will be implemented upon signature of this NMI.
2.0 GENERAL PROVISIONS
1. The goal of the Stone Farm Regional Mitigation Bank is to restore, enhance, and
preserve pocosin/Carolina bay wetland, headwater swamp wetland, small stream swamp
wetland, and Coastal Plain stream systems and their functions and values to compensate for
unavoidable wetland and stream impacts authorized by Section 404 of the CWA permits or
Water Quality Certifications deemed appropriate by the USACE or NCDWQ after consultation,
through the permit review process, with members of the MBRT.
2. Use of credits from the Bank to offset wetland and stream impacts authorized by CWA
permits or 401 Water Quality Certifications must be in compliance with the CWA 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 "Federal
Guidance for the Establishment, Use and the Operation of Mitigation Banks", 60 Fed. Reg.
58605, November 28, 1995 (Guidance).
3. The MBRT shall be chaired by the representative from the USAGE, Wilmington
District. The MBRT shall review monitoring and accounting reports more fully described in
Section 3.0 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 & 6 of the Guidance. The MBRT will
work to reach consensus on its actions.
4. The USACE, 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 stream impacts,
and whether or not the use of credits from the Banks site is appropriate to offset those impacts.
2
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.
The parties to this agreement understand that, where practicable, on-site, in-kind
compensatory mitigation may be preferred. However, it is recognized that in many instances use
of a mitigation bank may be considered to be environmentally preferable.
3.0 MITIGATION PLAN
6. The Stone Farm bank site is composed of approximately 911 acres (ac) of former
Carolina bay, headwater swamp forest, small stream swamp wetland communities and 20,355
linear feet (If) of degraded Coastal Plain streams. An additional 50-ft upland buffer (totaling 51
acres) around the perimeter of the restored, enhanced, and preserved wetlands will be restricted
as part of the conservation easement. The purpose of project is to provide riverine and
nonriverine wetland restoration, enhancement and preservation and stream restoration. A more
detailed description of existing site conditions is contained in the Mitigation Plan.
7. The Sponsor will complete all work as described in the Mitigation Plan. The bank site
will include 415 acres of wetland restoration (157 ac of riverine wetlands and 258 acres of
nonriverine wetlands), 157 acres of wetland enhancement, and 339 acres of wetland
preservation. Site modifications will be done in accordance with the approved Mitigation Plan.
8. The Sponsor shall monitor the Bank Site as described in the monitoring section of the
Mitigation Plan and as amended in Exhibit B (Revisions to the Mitigation Plan). The Bank Site
will be monitored for a five (5) year period after implementation is completed or until such time
as the MBRT determines that the Success Criteria have been met, whichever occurs later.
9. The Sponsor is responsible for assuring the success of the restoration, enhancement and
preservation activities at the Stone Farm site, and for the overall operation and management of
the Bank.
10. The Sponsor shall provide the reports described in the monitoring section of the
Mitigation Plan to each member of the MBRT.
11. USACE 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 Site. Remedial
action required by USACE shall be designed to achieve the success criteria specified in the
monitoring section of the Mitigation Plan and Exhibit B. All remedial actions required under
this paragraph shall include monitoring criteria and a work schedule that will take into account
physical and climatic conditions.
12. The Sponsor shall implement any remedial measures required pursuant to the above
paragraph.
13. In the event the Sponsor determines that remedial action may be necessary to achieve
the required monitoring and maintenance 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 USACE, in consultation with the MBRT.
14. The members of the MBRT will be allowed reasonable access to the Property for the
purposes of inspection of the Property and compliance monitoring of the Mitigation Plan.
4.0 USE OF MITIGATION CREDITS
15. The Geographic Service Area (GSA) is the designated area wherein a bank can
reasonably be expected to provide appropriate compensation for impacts to wetland and/or other
stream or aquatic resources. The Stone Farm Regional Mitigation Bank is situated on the
boundary of the Coastal Carolina unit of the Lumber River Basin (USGS Hydrologic Unit
03040207) and the Waccamaw Unit (USGS Hydrologic Unit 03040206). Since the Stone Farm
site is situated on the boundary of two 8-digit cataloging units, the GSA of this Bank shall
include a subset of 14-digit RUCs occurring within the vicinity of the Stone Farm site as listed in
4
Table 1 of this document. Refer to Figure 2 for the location and extent of the GSA. Use of a
Bank Site 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 and amounts (in acres or linear
feet) of wetland and stream compensatory mitigation as depicted in Table 2. Successful
implementation of the Mitigation Plan will result in the establishment of 20,335 if of stream
restoration, 157 ac of riverine wetland restoration, and approximately 258 acres of nonriverine
wetland restoration, 157 acres of nonriverine enhancement, and 339 acres of nonriverine
preservation.
Table 1. List of 14-digit watersheds within Geographic Service Areal
14 -Digit Hydrologic Unit Code (HUC)
3040206060020
3040206060030
3040206060040
3040206060010
3040206060060
3040206060050
3040206040010
3040206102010
3040206050010
3040206090010
3040207020060
3040206090020
3040207020090
3040207020070
3040207020110
3040207020080
3040207020100
3040207020120
1 Based upon standard mitigation guidelines (including those set forth by NCDENR and the NC EEP, the Bank may
be suitable for providing compensatory mitigation for wetland impacts occurring anywhere within the same 8-digit
hydrologic unit (03040207 - Lumber River Coastal Carolina). Therefore, use of the Bank for compensatory
mitigation will also be considered outside of the 14-digit units listed above upon review and analysis of other
mitigation alternatives at the time of permit issuance.
Table 2. Mitigation Credit - Stone Farm Regional Mitigation Bank
Area/Distance Mitigation Replacement Credit
Mitigation Type (acres/If) Credit Ratio (acre credits)
Nonriverine
Pocosin/Carolina Bay 145 1:1 145
Restoration
Nonriverine Swamp 113 1:1 113
Forest Restoration
Riverine Small Stream 157 1:1 157
Swam Restoration
Nonriverine Wetland 157 2:1 78
Enhancement
Nonriverine Wetland 339 7.1:1 48
Preservation
TOTAL WETLAND
9 ll
?4 1
AREA AND CREDITS
TOTAL STREAM
DISTANCE AND 20,355 1:1 20,335
CREDITS
17. It is anticipated by the parties to this Agreement that in most cases in which USACE,
after consultation with members of the MBRT, has determined that mitigation credits from the
bank may be used to offset wetland impacts authorized by Department of the Army permits, for
every acre of impact, 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 USACE
during its permit process. Additionally, for use of stream credits, it has been determined that for
every linear foot of proposed stream impact, two stream credits will be debited from the Bank.
Deviations from both the wetland and stream compensation ratio may be authorized by the
USACE on a case-by-case basis where justified by considerations of function and/or quality of
the wetland and/or stream impacted, the severity of the impacts to wetlands and/or streams,
whether the compensatory mitigation is in-kind, and physical proximity of the wetland and/or
stream impacts to the Bank site. Except that in all cases, a minimum of a one-to-one ratio of
impact acres and/or linear feet to restoration mitigation credits must be met.
18. 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 waters and wetland impacts authorized by
6
Department of the Army permits, shall be made by USACE, 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.
The release of credits will occur pursuant to the credit release schedule. Given the duration of
construction, credit release will follow two schedules. One schedule will include only the
restoration credits associated with the Carolina Bay (145 ac.) which will be completed in 2008.
Year 1 monitoring for this phase will also take place in 2008. The second schedule will include
the stream and remaining wetland credits which will be completed in 2009. Year 1 monitoring
for this phase will also take place in 2009. The credit release schedule for the Bank, as depicted
in Tables 3a-c, will be based upon successful completion of the following tasks:
19. Fifteen percent (15%) of the Bank's total restoration credits shall be released
immediately upon completion of all of the following:
(a) Execution of this MBI by the Sponsor, the USACE, and other agencies on the
MBRT who choose to execute this agreement;
(b) Approval of the final Mitigation Plan;
(c) Delivery of the financial assurances as described in Section 6 of this NMI;
(d) Recordation of the preservation mechanism described in Section 5 of this MBI, as
well as a title opinion covering the property acceptable to the USACE;
Additionally, the Sponsor must complete the initial physical and biological improvements to the
Bank site pursuant to the Mitigation Plan no later than the first full growing season following
initial debiting of the Bank.
20. Completion of Task 1 is a prerequisite for release of any credits from the bank site, not
withstanding completion of other tasks described below.
Task 2: Task 2 includes completion of all mitigation implementation activities at the Bank site
as specifically identified in the Mitigation Plan. Such activities will include required grading and
7
planting of the site and establishment of monitoring stations. Documentation (including `as-
built' drawings) will be submitted to the MBRT certifying completion of Task 2. Upon
completion of Task 2, 15% of the wetland and stream Bank credits will be released (30%
cumulative).
Task 3: Task 3 involves implementation of the monitoring plan and submittal of annual reports
to the MBRT for a five-year monitoring period, or until success criteria have been fulfilled,
whichever period is longer. Hydrology and vegetation sampling will be completed near the end
of each growing season (between September 1 and October 31). The data will be compiled and
success/failure documented within the Bank. The data will be submitted to the MBRT as an
Annual Wetland Monitoring Report (AWMR). Upon submittal of the AWMR demonstrating
that success criteria are being fulfilled, wetland and stream credits will be released. Information
regarding the release schedules for the different AWMR phases and stream restoration
component of the project are provided in Tables 3a-c.
Table 3a. Mitigation Credit Release Schedule - Stone Farm Regional Mitigation Bank
(Phase 1- Carolina Bay, 145 ac.)
Task Projected Percentage Credits Cumulative
Completion of Credits Released Credits
Date Released (% Released
cumulative
1.0 Signing of the NMI; 2/2008 15 (15) 21.8 21.8
Recordation of Conservation
Easement Deed; Delivery of
financial assurances
2.0 Completion of all 3/2008 15(30) 21.8 43.6
Restoration Activities
3.0 Monitoring Plan ___ ___ ___ ---
3.1 Year 1: Fulfill Success 1/2009 10(40) 14.5 58.1
Criteria
3.2 Year 2: Fulfill Success 1/2010 10(50) 14.5 72.6
Criteria
3.3 Year 3: Fulfill Success 1/2011 20(70) 29 101.7
Criteria
3.4 Year 4: Fulfill Success 1/2012 10(80) 14.5 116.2
Criteria
3.5 Year 5: Fulfill Success 1/2013 10(90) 14.5 130.5
Criteria
4.0 Final Approval 2/2013 10(100) 14.5 145
TOTAL 100 145
8
Table 3b. Mitigation Credit Release Schedule - Stone Farm Regional Mitigation Bank
(Phase 2 - Riverine and Non-riverine Wetlands)
Task Projected Percentage Credits Cumulative
Completion of Credits Released Credits Released
Date Released (%
cumulative
1.0 Signing of the MBI; 2/2008 15 (15) 59.4 59.4
Recordation of Conservation
Easement Deed; Delivery of
financial assurances
2.0 Completion of all 3/2009 15(30) 59.4 118.8
Restoration Activities
3.0 Monitoring Plan --- --- --- ---
3.1 Year 1: Fulfill Success 1/2010 10(40) 39.6 158.4
Criteria
3.2 Year 2: Fulfill Success 1/2011 10(50) 39.6 198
Criteria
3.3 Year 3: Fulfill Success 1/2012 20(70) 79.2 277.2
Criteria
3.4 Year 4: Fulfill Success 1/2013 10(80) 39.6 316.8
Criteria
3.5 Year 5: Fulfill Success 1/2014 10(90) 39.6 356.4
Criteria
4.0 Final Approval 2/2014 10(100) 39.6 396
TOTAL 100 396*
*Represents 113 ac. Nonriverine restoration credits, 157 Riverine restoration credits, 78.5
enhancement credits, and 48 preservation credits
Table 3c. Mitigation Credit Release Schedule - Stone Farm Regional Mitigation Bank
(Phase 2 - Stream Restoration)
Task Projected Percentage Credits Cumulative
Completion of Credits Released Credits Released
Date Released (%
cumulative
1.0 Signing of the MBI; 2/2008 15(15) 3,050 3,050
Recordation of Conservation
Easement Deed; Delivery of
financial assurances
2.0 Completion of all 3/2009 15(30) 3,050 6,100
Restoration Activities
3.0 Monitoring Plan --- --- --- ---
3.1 Year 1: Fulfill Success 1/2010 10(40) 2,033 8,133
Criteria
3.2 Year 2: Fulfill Success 1/2011 10(50) 2,033 10,166
Criteria
9
3.3 Year 3: Fulfill Success
Criteria 1/2012 10(60) 2,033 12,199
3.4 Year 4: Fulfill Success
Criteria 1/2013 10(70) 2,033 14,232
3.5 Year 5: Fulfill Success
Criteria 1/2014 15 (85) 3,050 17,282
4.0 Final Approval 2/2014 15(100) 3,050 20,335
TOTAL 100 20,335
Credit releases for Task 3 will occur only if success criteria are fulfilled as stipulated in Section
V of the Mitigation Plan. The above schedule applies only to the extent the Sponsor documents
acceptable survival and growth of planted vegetation, and attainment of acceptable wetland
hydrology as described under the success criteria in the monitoring section of the mitigation
plan. The final 15% of stream credits and 10% of phase 1/phase 2 wetland credits will be
available for sale only upon a determination by the MBRT of functional success as defined in the
mitigation plan.
Transfer of Mitigation Credits: The Sponsor intends to use the mitigation credits to be released
in accordance with paragraph 19 and 20 of this Agreement to offset impacts of future permitted
projects for which USACE authorization for utilization of such credits is obtained. The
remaining credits, if any, will be held by Sponsor for investment purposes. The credits held by
the Sponsor for investment purposes may be transferred, in one or more transfers, to a third party
(the "Transferee"). The Transferee may have all rights and assume all obligations under this
agreement as it relates to the credits, including, without limitation, the accounting and reporting
procedures set forth in Section 4, paragraph 21 below, and shall be required to execute an
amendment to this agreement confirming its assumption of such obligations. No transfer of
mitigation credits shall be deemed to create, nor be construed to make, the Sponsor and the
Transferee partners, joint venturers or agents of each other.
21. The Sponsor shall develop accounting procedures for maintaining accurate records of
credits made to the Bank and 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
10
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. headwater swamp wetland), and shall include for each reported debit the
USACE Action ID Number for the permit for which the credits were utilized.
5.0 PROPERTY DISPOSITION
22. A Conservation Easement Deed will be recorded and conveyed to Cape Fear River
Watch, Inc. (a non-profit 501 (c) (3) corporation) upon execution of this Agreement. As the
grantee of this easement, Cape Fear River Watch will be responsible for maintaining the Bank in
strict accordance with the provisions expressed therein and will be responsible for protection of
the Bank Site in perpetuity. The Conservation Easement Deed shall be perpetual, preserve all
natural areas, and prohibit all use of the 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 site, consistent with the Mitigation Plan.
Provided, however, if, prior to the release and use of mitigation credits in the Bank,
circumstances or conditions arise that render the property unsuitable or infeasible as a mitigation
bank site, as determined by Sponsor, in its sole discretion, this easement shall terminate. In such
event, the Sponsor and the Grantee shall join in the execution of such documentation as may be
necessary to evidence such termination. The purpose of the Conservation Easement Deed will
be to assure that future use of the Bank site will result in the restoration, protection, maintenance,
and enhancement of wetland and stream functions as described in the Mitigation Plan. The
Sponsor shall deliver a title opinion for the mitigation property. A copy of the Conservation
Easement Deed to be used for the protection of the site in perpetuity is attached as Exhibit C.
6.0 FINANCIAL ASSURANCES
23. The Sponsor has secured a $500,000 irrevocable letter of credit with Citigroup as a
financial assurance of completing construction of the Bank site. This total includes $100,000 for
monitoring and maintenance to cover contingency actions in the event of Bank default or failure.
11
This portion of the letter of credit will be left in place for the duration of the monitoring period.
The remainder of the letter of credit will be released upon completion of construction of the
Bank site. Documentation of this letter of credit will be provided prior to the 15% credit release
associated with Task 1.
7.0 LONG TERM MANAGEMENT
24. The Sponsor will be providing a separate endowment to Cape Fear River Watch, Inc.
(Grantee) for the long-term management and maintenance of the site. The Grantee will be
responsible for ensuring protection of the site in a natural state consistent with the provisions of
the conservation easement deed.
8.0 MISCELLANEOUS
25. 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.
26. 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, 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, Sponsor shall give written notice
12
thereof to the MBRT 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
MBRT.
27. 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.
28. This MBI constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior agreements or undertakings.
29. 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.
30. This MBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.
31. This MBI maybe executed by the parties in any combination, in one or more
counterparts, all of which together shall constitute but one and the same instrument.
32. The terms and conditions of this MBI shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors.
33. All notices and required reports shall be sent by regular mail to each of the parties at
their respective addresses, provided below:
13
0nd-%1krad-%n.
Ms. Virginia Williamson
Ocean Isle Investment Co.
11 Causeway Drive
Ocean Isle Beach, N.C. 28469
Ms. Ladane Williamson
Ocean Isle Investment Co.
Post Office Box 2588
Shallotte, N.C. 28459
Mr. DeCarol Williamson
Ocean Isle Investment Co.
2618 New Village Way
Wilmington, N.C. 28405
MBRT MEMBERS:
CORPS: Mr. Mickey Sugg
U.S. Army Corps of Engineers
Regulatory Division
P.O. Box 1890
Wilmington, N.C. 28402-1890
EPA: Ms. Kathy Matthews
U.S. Environmental Protection Agency
Wetlands Section- Region IV
109 T.W. Alexander Drive
Durham, N.C. 27711
14
FWS: Mr. Howard Hall
U.S. Fish and Wildlife Service
P.O. Box 33726
Raleigh, N.C. 27636-3726
NMFS: Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Division
101 Pivers Island Road
Beaufort, N.C. 28516
NCWRC: Ms. Molly Ellwood
N.C. Wildlife Resources Commission
127 Cardinal Drive Extension
Wilmington, N.C. 28405
NCDCM: Mr. Steve Everhart
Division of Coastal Management
N.C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, N.C. 28405
NCDWQ: Ms. Tammy Hill
Division of Water Quality
N.C. Department of Environment
and Natural Resources
2321 Crabtree Boulevard
Raleigh, N.C. 27604-2260
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement for the Stone Farm
Regional Mitigation Bank:
SPONSOR:
Ocean Isle Investment Co.
By: ?--
Virg' is Williamson
Vice-President
CORPS:
U.S. Army Corps of Engineers:
Xaft PLO
Date: /Or / 3- D ?
-< A a047/', Date:
?jguel K. Jolly
Wilmington Regulatory 'Vision,
Qief
U. S. Army Corps of Engineers
17
IN WITNESS WHEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
XMRT MEMBER:
N.C. Wildlife Reso ces ommission:
By:
se: 17 ,??rvra2
Name and Title
Date:
21
IN WITNESS WHEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
MSRT MEMBER:
N.C. Division of Water Quality:
By:
?vo ?` r L/`D l ?y?s??
Name ar(d Title
Date:
20
F OM :DOC/NOAA BEAUFORT,NC FAX NO. :252-728-8784 Sep. 22 20OU 11:42HI'I r 1
IN WTTNE-SS WHEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
MBRT MEMBER:
National Marine Fisheries Servicc:
By: Date: Z 0
Ronald S. Sechler, Fishery Biologist
IN WITNESS WHEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
WRT NIEMBER;
U.S. F' h . e Service:
By: Date:
myn ?/ ) I
game and Title
18
IN WUNES S WBEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
MBRT MEMBER:
RECEIVED
N.C. Division of Coastal Management:
By: t i --, . ?.,, ?c R 4,i2
Name and Title
OCT 14 2008
REGULATORY
Date: 10 1 Lo 8 /o E) WILM. FLD.OFC.
22
IN WITNESS WHEREOF, the undersigned party hereto has executed this Agreement for the
Stone Farm Regional Mitigation Bank:
MBRT MEMBER:
U.S. Environmental Protection Agency:
By: ? QDJ-? Date: Z LO
(Aoj? y. G k a r& 1 krS N a N p, ,2 S1.1
Name and Title $r.J-Cltif-
17