20081143 Ver 1_USACE Correspondence_20090203

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 No. SAW-200701188
Mr. Randy Turner
Restoration Systems, LLC
1101 Haynes Street, Suite 211
Raleigh, North Carolina 27604
Dear Mr. Turner:
February 3, 2009
COPY
08- 1 1 4 3
Reference is made to the Mitigation Banking Instrument (MBI), revised prospectus, final
mitigation plan, and final design sheets for the Cripple Creek Mitigation Bank received on
September 30, 2008. The MBI indicates that you propose to restore approximately 6.9 acres of
wetlands and 4,265 linear feet of stream channel and enhance 1.9 acres of wetlands and 633
linear feet of stream channel within the proposed bank boundaries of 19.6 acres. The proposed
mitigation bank is located east of Roney-Lineberry Road, north of Woodbrooke Drive, south of
Deep Creek Church Road and west of North Fonville Road, in northeast Alamance County,
North Carolina, within the Cape Fear River Basin, Hydrologic Unit Code (HUC) 03030002.
Upon review, your MBI is considered incomplete, as you and I discussed via telephone on
November 20, 2008. Currently, the U.S. Army Corps of Engineers, Wilmington District
(USACE) has a Model Mitigation Banking Instrument posted on-line. You used this model for
the proposed Cripple Creek Mitigation Bank; however, many of the sections were modified.
Therefore, the document was reviewed by the USACE, Office of Counsel and results in the
following comments:
1) Throughout the document you substituted the term Corps for DE, which refers to the
District Engineer. You must keep the term Corps within the document as indicated in
the Model Mitigation Banking Instrument. Also, you should not refer to the
Interagency Review Team (IRT) chair as the DE.
2) Throughout the document you substituted the term Mitigation Bank Review Team
(MBRT) for IRT. As the team is now referred to as the IRT, this substitution is
acceptable.
3) Under the General Provisions, Section 5, you deleted portions of the sentence. This
has been determined to be acceptable.
4) Each section (6-14) of the Mitigation Plan has been reviewed and determined to be
acceptable, with the exception of the substitution mentioned in 1 above.
5) Under the Mitigation Plan, Section 19, please provide a detailed explanation
regarding the deleted sections and an explanation of the sequence of the execution of
the MBI, approval of the final mitigation plan, delivery of financial assurances and
the recordation of the preservation mechanism. Additionally, under Section 19c and
19d you have transposed the paragraph numbers.
6) Under Use of Mitigation Credits, Section 20, the credit release schedule for forested
wetlands should be for 7 years. This schedule was determined by the NC-IRT in
October of 2008 and was provided to you via email on November 24, 2009., Also,
please provide a detailed explanation of the phrase "delivery of title option to the
MBRT".
7) Under Use of Mitigation Credits, Section 21, please explain why the phrase "commits
to" was substituted for the word "shall".
8) Under Property Disposition, Section 22, please provide a detailed explanation of the
language used in this section, especially in relation to Section 23.
9) Under Financial Assurances, Section 23, the first phrase must be the same as is
provided in the model MBI. Also, please explain the reason for omitting references to
land acquisition, easement acquisition and preparation cost.
10) Under Long Term Management, Section 24, please provide specific information
regarding the entity to which the Sponsor will transfer the conservation easement.
11) Under Miscellaneous, Section 25, please provide a detailed explanation for the
language which states, "this agreement may be modified only with the written
agreement of the DE (and the IRT members, if they were signatories to the instrument
at the time of modification)".
Additionally, please note the following issues regarding the documents submitted for review:
1) The conservation easement does not follow the conservation easement model located on
the USACE, Wilmington District website.
2) The proposed wetlands credit release schedules shown in the MBI and the final mitigation
plan are inconsistent. Furthermore, the wetlands credit release schedule provided in the
final mitigation plan totals 105%.
3) Please provide a final stream/wetland delineation map for the site.
4) Please provide a larger scale map indicating the restoration, enhancement, etc. locations.
Figure 8C shows these areas; however, the scale should be such that the specific areas can
be located and distinguished during subsequent site visits.
5) Wetland Monitoring should include the herbaceous layer as there is currently fescue and
other pasture grasses on site.
6) As one of the objectives is to reconnect the bankfull stream flows to the abandoned
floodplain and therefore provide hydrology to the restored wetlands, please provide for
overbank flooding monitoring in the final mitigation plan.
Please provide the requested information within 30 days of the date of this letter. If you have
questions or comments, please contact me at my Raleigh Regulatory Field Office address, or
telephone [phone] ext. 26.
Sincerely,

Andrew Williams
Regulatory Project Manager
Raleigh Field Office
Enclosure
Copies Furnished:
Ms. Cyndi Karoly
North Carolina Department of Environment
and Natural Resources
Division of Water Quality
Wetlands/401 Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. Ronald J. Mikulak, Chief
Wetland Regulatory Section
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960
Mr. Pete Benjamin, Field Supervisor
U.S. Fish and Wildlife Service
Raleigh Field Office
P.O. Box 33726
Raleigh, NC 27636-3726
Ms. Shari Bryant
N.C. Wildlife Resources Commission
P.O. Box 129
Sedalia, North Carolina 27342-0129
Mr. Scott McLendon
U.S. Army Corps of Engineers
Wilmington District
69 Darlington Avenue
Wilmington, North Carolina 28403-1343