FINAL MITIGATION BANK INSTRUMENT

Transcription

1 FINAL MITIGATION BANK INSTRUMENT PROPOSED GREAT MIAMI (TROTWOOD) MITIGATION BANK FIVE RIVERS METROPARKS MONTGOMERY COUNTY, OHIO July 14, 2010 (Revised October 7, 2010) Prepared for: The Ohio Interagency Review Team (IRT) Ms. Denise M. Marmer, Chair United States Army Corps of Engineers McKelvey Road Cincinnati, OH Prepared by: 1375 East Siebenthaler Avenue Dayton, Ohio (Phone) (Fax)

2 BANKING INSTRUMENT Great Miami Mitigation Bank This Banking Instrument regarding the establishment, use, operation, and maintenance of the Great Miami Mitigation Bank (hereinafter, the Bank ) is made and entered into by and among (hereinafter, Owner and Sponsor ), and the U.S. Army Corps of Engineers (Corps), the U.S Environmental Protection Agency (USEPA), the U.S. Fish and Wildlife Service (USFWS), the Ohio Environmental Protection Agency (OEPA), the Ohio Department of Natural Resources (ODNR), and the Natural Resources Conservation Service (NRCS) (hereinafter, the Ohio Interagency Review Team, IRT ), with reference to the following: I. PREAMBLE A. Purpose: The purpose of this Banking Instrument is to establish guidelines and responsibilities for the establishment, use, operation, and maintenance of the Bank. The Bank will be used for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands and streams, which result from activities authorized under Section 404 of the Clean Water Act, Section 401 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and Section 6111 of the Ohio Revised Code for Isolated Wetland impacts, provided such use has met all applicable requirements and is authorized by the appropriate authority. B. Objectives Mitigation Bank Objectives: Institute an ecologically sound, well-developed and feasible wetland and stream restoration plan that would both fulfill new Metropark objectives and generate credits to be used as compensatory mitigation for activities authorized by the Department of the Army and Ohio EPA permits. Restore at a minimum 50 acres of forested and scrub-shrub wetlands with credits to be sold on a 0.10 credit (0.10 acre) basis and issued at a 1:1 ratio. Restore at a minimum 10 acres of emergent wetlands with credits to be sold on a 0.10 credit (0.10 acre) basis and issued at a 1:1 ratio.. Restore at a minimum 4000 linear feet (LF) of headwater streams with credits to be sold in +5 LF increments at a 1:1 ratio for stream impact debits calculated by the Corps and Ohio EPA during the authorization of qualifying stream impacts taken by applicants during the permit process. Restore at a minimum 75 acres of wetland and riparian buffer with credits to be sold on a 0.25 credit basis and issued at a 4:1 ratio. Restore at a minimum 220 acres of upland buffer, consisting of hardwood forest and tall grass prairie / savannah habitat outside the wetland and riparian buffer, with credits to be sold on a 0.10 credit (1.0 acre) basis and issued at a 10:1 ratio. 1

3 Owner / Sponsor Objectives Operate and manage the approved Bank site using private mitigation funds to offset land acquisition, construction, and maintenance costs (The Bank is proposed to be operated as a net even enterprise. Sponsor is a local government and shall invest all profits, if applicable, into future conservation projects within ). Restore forested and emergent wetlands to provide habitat, improve water quality, regulate watershed hydrology, attenuate runoff, and reduce soil erosion while meeting current watershed mitigation demand. Restore and enhance headwater streams to provide aquatic habitat, improve water quality, regulate watershed hydrology, attenuate runoff, and provide localized flood control while meeting current watershed mitigation demand. Provide a diversity of restored habitat features and buffers, including but not exclusive to the process of upland reforestation and prairie conversion. Establish connectivity and habitat corridors with existing natural areas. Monitor and maintain an operational mitigation bank in perpetuity. Provide educational outreach to park users and environmental education (K-12) using discovery-oriented learning programs and existing Metroparks curriculum. Provide academic research and data collecting opportunities. Improve public awareness as to the value of aquatic resources in the community. C. Location and Ownership of Parcel(s): Whereas, Ownership Area consists of acres of land in two adjoining tracts located in Sections 19 and 20, Town 4, Range 5 - north of Little Richmond Road and east of Lutheran Church Road - in Trotwood, Montgomery County, Ohio (Exhibit A), and the Sponsor has developed a mitigation plan to establish and maintain acres of wetland habitat and 4,920 LF of headwater stream habitat. A Plat of Survey has been provided in Exhibit A. D. Project Description: Whereas, under this Banking Instrument, the Sponsor will establish and maintain a minimum 355 total acres of restored lands for the purposes of conservation, education and recreation in accordance with the provisions of this Banking Instrument and the Bank Development Plan (Exhibit B), and shall then maintain the Bank in such condition for 10 years in accordance with the Bank closure procedures or until all credits are sold, whichever is later. The Bank area shall be a total of acres and include the establishment and maintenance of: acres of forested and scrub/shrub wetlands; acres of emergent wetlands, 4,920 LF of ephemeral and intermittent Primary Headwater Habitat (PHWH) streams, and an additional acres of wetland and riparian buffer around all restored aquatic resources. The Sponsor shall also establish approximately 145 acres of restored hardwood forest and approximately 75 acres of restored tallgrass prairie / savannah habitat within the ownership area. E. Baseline Conditions: Whereas, the Bank area is currently dominated by conventionally tilled agricultural fields with patches of immature, second growth forest. Approximately 340 acres of the acre Ownership Area are dominated by agricultural row crops. No wetlands were identified on the property during the Waters of the U.S. delineation, completed by the Sponsor on 2

4 September 5, 2008 (Exhibit D). Two existing streams were identified. Stream 1 is a perennial stream that flows for approximately 145 linear feet on site while Stream 2 is an ephemeral stream that flows for approximately 405 linear feet on site. Stream 1 was classified as modified warm water habitat (MWWH) while Stream 2 was classified as a Class I modified headwater stream. Both streams have been impacted and degraded by agricultural drainage manipulations and support limited to no aquatic functions. The USDA-NRCS Soil Survey of Montgomery County, Ohio shows that the site, particularly in the proposed mitigation areas, is underlain by Brookston silty clay loam (Bs) and Millsdale silty clay loam (MrA). These soil series were confirmed during field reconnaissance and are classified as poorly or very poorly drained hydric soils. Many of the remaining mapped soils contain hydric components. Further detail is included in the Waters of the U.S. Delineation Report (Exhibit D). The majority of the Bank site lies on glaciated till plains that are characteristically flat to moderate in slope and contain shallow depressions in those areas that have been proposed for mitigation. All areas favorable for wetland restoration and establishment contain hydric soils and subsurface drainage manipulations thoroughly documented by the Sponsor and the NRCS in the Sponsor s Final Prospectus dated October 31, Wetland and stream hydrology shall be reestablished as part of the Bank restoration plan and numerous resulting aquatic functions and services are expected to be provided. The remainder of the Ownership Area outside of the Bank area shall be converted from primarily agricultural row cropping to deciduous forest and prairie/savannah habitat as proposed by the Sponsor in the establishment of a new Metropark. F. Establishment and Use of Credits: Whereas, in accordance with the provisions of this Banking Instrument and upon satisfaction of the success criteria contained herein, for all phases, a total of wetland credits, 4,920 stream credits, wetland and riparian buffer credits and 22.0 upland buffer credits will be available to be used as mitigation in accordance with all applicable requirements (See Table 1). Wetland credits will be sold to third parties in 0.10 credit (0.10 acre) increments. Stream credits will be sold to third parties in 5 LF increments. Wetland and riparian buffer credits will be sold to third parties in 0.25 credit (1.0 acre) increments. Upland buffer credits will be sold to third parties in 0.10 credit (1.0 acre) increments. There are no plans for credits to be used by the Bank Sponsor at this time H. Disclaimer G. Whereas, the Interagency Review Team (IRT) consists of: 1. U.S. Army Corps of Engineers, Huntington District (Corps), Chair. 2. U.S. Environmental Protection Agency, Region 5 (USEPA). 3. U.S. Fish and Wildlife Service, Ohio Field Office (USFWS). 4. Ohio Environmental Protection Agency, Wetland Ecology Group (OEPA) 5. Ohio Department of Natural Resources (ODNR) 6. Natural Resources Conservation Service, Ohio District (NRCS) Whereas, this Banking Instrument does not in any manner affect statutory authorities and responsibilities of the signatory parties. 3

5 I. Exhibits: Whereas, the following Exhibits are incorporated as appendices to this Banking Instrument: 1. EXHIBIT A, BANK LOCATION AND SERVICE AREA 2. EXHIBIT B, BANK DEVELOPMENT PLAN 3. EXHIBIT C, CREDITING AND DEBITING PROCEDURE FOR THE BANK 4. EXHIBIT D, DELINEATION REPORT 5. EXHIBIT E, MITIGATION PLAN 6. EXHIBIT F, ENVIRONMENTAL CONVENANT 7. EXHIBIT G, FINANCIAL ASSURANCE 8. EXHIBIT H, MITIGATION AGREEMENT 9. EXHIBIT I, CREDIT ACCOUNTING FORM II. AUTHORITIES The establishment, use, operation and maintenance of the Bank shall be carried out in accordance with the following authorities: A. Federal: 1. Clean Water Act, Section 404 (33 USC 1344 et seq.) 2. Rivers and Harbors Act of 1899, Section 9 or 10 (33 USC 401, 403) 3. Fish and Wildlife Coordination Act (16 USC 661 et seq.) 4. Regulatory Programs of the Corps of Engineers, Final Rule (33 CFR Parts ) 5. Guidelines for Specification of Disposal Sites for Dredged and Fill Material (40 CFR Part 230) 6. Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army concerning the Determination of Mitigation Under the Clean Water Act, Section 404 (b)(1) Guidelines (February 6, 1990) 7. Federal Guidance for the Establishment, Use, Operation of Mitigation Banks (60 F.R et seq.) 8. Watershed Approach to Compensatory Mitigation: Mitigation Banks and In-Lieu Fee Programs (33 CFR Part 332) B. State of Ohio: 1. Ohio Isolated Wetland Statute (ORC ) 2. Ohio Wetland Water Quality Standards (OAC to 54) NOW, THEREFORE, the parties agree to the following: 4

6 III. ESTABLISHMENT OF THE BANK A. Work Plan / Bank Development Plan The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Banking Instrument, to establish and maintain acres of wetland habitat and 4,920 LF of headwater stream habitat, acres of riparian buffer habitat, and 220 acres of upland buffer; as shown in Exhibit B, until it is demonstrated to the satisfaction of the Corps and Ohio EPA (in cooperation with the IRT) that the project complies with all conditions contained herein, or until all credits are sold, whichever is later. Work shall include implementing the Bank Development Plan (Exhibit B). TYPE Wetland Re-establishment [61.20 Acres] Stream Re-establishment [4,920 Linear Feet] Wetland (WT) and Riparian (ST) Buffer (<50m) Restoration [77.50 Acres] Upland Buffer (>50m) Restoration [220 Acres] CREDIT RATIO 1: (PEM) PHASE 1 CREDITS (PFO) 9.60 (PEM) PHASE 2 CREDITS (PFO) TOTAL CREDITS :1 2,320 2,600 4,920 1: (WT) 2.80 (ST) 9.90 (WT) 2.30 (ST) : Table 1. Summary of Anticipated Credits at the Great Miami Mitigation Bank B. Permit(s) The Sponsor will obtain all appropriate environmental documentation, permits or other authorizations needed to establish and maintain the Bank. This Banking Instrument does not fulfill or substitute for such authorization. C. Phasing Establishment of the Bank will be performed in a phased manner as detailed in the Bank Development Plan (Exhibit B), as an Umbrella Instrument, where Phase I shall be initially established and Phase II shall be subsequently established. If the Sponsor demonstrates to the satisfaction of the IRT, acting through the Corps and Ohio EPA, that Phase I success criteria for all sold and unsold credits have been met or are on a trajectory to meeting all release criteria prior to any interim credit release described in Part IV (F); the Sponsor may petition the IRT to commence Phase II construction. Written approval must be provided by the IRT, acting through the Corps, that Phase II of the Umbrella Instrument can commence in accordance with 33 CFR 332.8(g)(1) and 33 CFR 332.8(h). Credits will become available in accordance with the schedule specified in Part IV, Sections D through G of this Banking Instrument. In the event the Sponsor determines that modifications must be made in the Bank Development Plan to ensure successful or additional establishment of habitat within the Bank, the Sponsor shall submit a written 5

7 request for such modification to the IRT, through the Chair, for approval. Documentation of implemented modifications shall be made consistent with Part III, Section F. D. Financial Assurance Requirements: The Sponsor shall secure the following short-term and long-term financial assurances as part of Bank construction and operation. 1.) Short-Term Contingency: The Sponsor agrees to provide a Performance Bond as short-term financial assurance for each phase of wetland and stream restoration described in this Banking Instrument. The Sponsor will encumber the funds for Bank construction in a capital improvement account to cover each phase of Bank construction. Performance bonds for each phase of Bank construction will be acquired just prior to the start of that phase, and bonds will provide a guarantee to cover the entire cost of construction. The performance bond will guarantee the satisfactory completion of each phase of restoration initiated. Performance bonds will be acquired and held by an FDIC-approved bank or insurance provider. 2.) Long-Term Management: Ten Percent (10%) of the proceeds from all credits sold will be placed in an interest bearing escrow account to be termed Long Term Management and Contingency Funds and to be used by the Sponsor or a third party Holder to be designated by the Environmental Covenant in the event the Sponsor fails to comply with the terms of this Banking Instrument or to rectify any unforeseen events as determined by the IRT. In the event that the Long Term Management and Contingency Funds are not used, at the end of the 10 Year monitoring period, the funds shall be returned to the Sponsor. Documentation of financial assurance shall be submitted to the Corps and IRT by December 31st of each calendar year. Documentation must show beginning and ending balances, including any deposits or withdraws. E. Real Estate Provisions / Bank Protection Instrument: shall record an Environmental Covenant with the Bank property Deed on all Bank lands through the State of Ohio (Ohio EPA) prior to the release of any credits. The environmental covenant shall be recorded pursuant to the Ohio Revised Code (ORC) Sections to The environmental covenant shall preserve the Bank land as permanent wetlands, streams, and buffer wildlife habitat in perpetuity. The covenant shall restrict certain activities on the property that may jeopardize the success or long-term protection of restored wetland and stream mitigation areas. The environmental covenant shall run in perpetuity with the land and allow access for Ohio EPA or approved assignees to enter the property and, if necessary, enforce compliance restrictions in connection with provisions set forth in the environmental covenant. Specifically prohibited uses of the wetland Bank tract shall include, but not be limited to, timber harvests and other forestry activities; drainage of surface waters; cultivation within approved Phases; commercial activities; filling; grazing of domesticated animals; building of permanent structures, except essential educational and park infrastructure; soil removal, and deposition of refuse, sewage, or other debris. The environmental covenant is provided in Exhibit F, and copies of the recorded document shall be provided to the Corps and OEPA following filing. 6

8 IV. OPERATION OF THE BANK A. Service Area: The Bank is established to provide mitigation to compensate for impacts to Waters of the United States including Category 1 and 2 wetlands and Class I and II headwater streams within the Great Miami River watershed as well as all federally jurisdictional Category 1 wetlands within the Huntington Corps District, all Category 1 isolated wetlands within the Huntington Corps District, and all isolated Category 2 wetlands less than 1/2 acre in size within the Huntington Corps District in the state of Ohio (Exhibit A). The direct geographic service area shall include 5 sub-watersheds in the northern portion of the Lower Great Miami River Watershed and 4 sub-watersheds in the lower portion of the Upper Great Miami River Watershed. The direct geographic service area for the Bank can be seen on Exhibit A and includes the following nine 11-digit HUC watersheds: 11-Digit HUC SUB-WATERSHED NAME G. Miami R. (below Mad River to above Bear Creek) G. Miami R. (above Bear Creek to above Twin Creek) Twin Creek (headwaters to above Bantas Fork) Twin Creek (above Bantas Fork to Great Miami River) Great Miami R. (below Twin Creek to above Four Mile Creek) Stillwater River (above Ludlow Creek to Great Miami River) Mad River (below Chapman Creek to above Mud Creek [except Buck Creek]) Mad River (above Mud Creek to Great Miami River) Great Miami River (above Honey Creek to above Mad River [exc. Stillwater River]) TABLE 2. Summary of 11-Digit HUC's within Direct Service Area of the Great Miami Mitigation Bank On a case-by-case basis, mitigation for impacts outside the service area can be approved by the Corps and OEPA, in consultation with other members of the IRT, if the mitigation would be environmentally beneficial or preferred over other alternatives. B. Site Access The Sponsor will allow, or otherwise provide for, access to the site by all signatory parties, as necessary, for the purpose of inspection and compliance monitoring consistent with the terms and conditions of this Banking Instrument. Inspecting parties shall provide reasonable notice, of not less than 24 hours, to the Owner/Sponsor, prior to inspection of the Bank. C. Projects Eligible to Use the Bank: For projects requiring authorization under Section 404, Section 10, and the Isolated Wetland Permit statute, the Corps and Ohio EPA, in consultation with other regulatory and resource agencies, will determine the eligibility of projects to use the Bank on a case-by-case basis. Entities which propose to mitigate for wetland or stream impacts at the Great Miami Mitigation Bank shall submit a complete permit application or pre-construction notification (PCN) to the Corps and all other appropriate federal, state and/or local regulatory agencies. The permit application or PCN shall include a wetland and/or stream assessment, using the 7

9 Ohio Rapid Assessment Method (ORAM), Headwater Habitat Evaluation Index (HHEI) or current qualitative habitat evaluation protocol, and an executed bank agreement to demonstrate that adequate mitigation credits are available. The Corps (and the OEPA in the case of an Individual Water Quality Certification or Isolated Wetland Permit), in cooperation with the appropriate resource agencies, will evaluate whether the proposed activity and proposed mitigation at the Great Miami Mitigation Bank meets all relevant statutory and/or regulatory requirements. A permit applicant s participation in the Great Miami Mitigation Bank does not diminish or waive a permit applicant s responsibility to meet every requirement of applicable federal, state or local law. The Sponsor reserves the right to refuse the sale of credits to any Bank customer (permit applicant). D. Assessment Methodology: Credits and debits shall be assessed using wetland acreage calculations. Restored wetlands (forested and emergent) shall receive 1.0 credit per acre of mitigation required (1:1 compensation ratio). Wetland credits shall be sold in tenth-acre (0.1 acre) increments through a Wetlands Mitigation Agreement (Exhibit H) and reported to the Corps and OEPA using a Wetlands Credit Accounting Form (Exhibit I). Restored streams shall receive 1.0 LF credit per LF of mitigation required (1:1 compensation ratio). Stream credits shall be sold in 5 LF increments, rounded up to the highest +5 LF interval, and reported to the Corps and OEPA using a Stream Credit Accounting Form (Exhibit I). Restored wetland and riparian buffers within 50 meters (164 LF) of all aquatic resources shall receive 0.25 credits (4:1 compensation ratio) per acre. These buffers may be comprised of wetland areas where conservation easements or covenants cannot be placed on adjacent land due to existing use or ownership. In these instances, the 50 meter wetland buffer shall extend from the edge of the adjacent property into the wetland. This 50 meter buffer will not be subject to wetland performance criteria, only upland buffer performance criteria, even if it is directly connected to the wetland. Any unvegetated, open-water areas within such buffers will not count against the wetland performance criteria. Wetland buffer credits may be retroactively adjusted to a 1:1 ratio in the Wetland Credit Accounting Form (Exhibit I), with IRT approval, if easements or incorporation of adjacent property into the Bank can be made. Restored upland buffers, comprised of hardwood forest and tall grass prairie / savannah habitat, outside of the 50 m riparian buffer and covering the remainder of the site shall receive 0.10 credits (10:1 compensation ratio) per acre. Upland buffer credits shall be sold in 0.10 credit (1.0 acre) increments and reported to the Corps and OEPA using an Upland Buffer Credit Accounting Form (Exhibit I). Upland buffer credit shall only be granted after demonstrating a 1:1 compensation ratio or no net loss of waters. Upland buffer credits shall apply to all restored areas, within each phase, outside of the 50 m wetland and riparian buffer surrounding aquatic resources. Restored areas within the Ownership Area but not designated as Bank lands shall not receive mitigation credit or require performance standards. 8

10 E. Success Criteria / Performance Standards: Monitoring of wetland vegetation will use the protocols outlined in the Field Manual for the Vegetation Index of Biotic Integrity for Wetlands v 1.4 (Mack, 2007). The following Performance Standards will be used to assess wetland progress and success. Restoration details and monitoring protocols are covered in Exhibit E: Mitigation Plan. WETLAND CRITERIA All credits released must eventually meet wetland criteria. Except for the first 30% of credits released, credits must meet wetland criteria {Corps of Engineers Wetland Delineation Manual (1987) and any subsequent versions/updates and all relevant regional supplements}. Not only must the exterior boundaries of the wetland areas (cells) be delineated but there must also be information from within the delineated boundaries showing that all the included areas are indeed meeting wetland criteria. This demonstration is best accomplished by following the appropriate methods in the 1987 Corps Manual as well as the 2008 Interim Midwest Regional Supplement to the Corps Delineation Manual. The boundaries will be mapped using geographic position system (GPS) instruments. Any nonwetland areas within wetland boundaries will be mapped and will not count toward wetland credits. Ecological Condition (IBI Score) Wetland credits shall meet or exceed the Wetland Habitat Vegetation Index of Biotic Integrity (VIBI) score of 51 for the Bank site (Emergent Depressional Marsh, Eastern Corn Belt Plains) by the end of the monitoring period. In order to demonstrate that this performance goal is being met, following each VIBI monitoring event in accordance with Part V (B) of this Instrument, VIBI scores will be calculated using data aggregated from all random modules established within each Bank sub-area. These Bank sub-areas are determined based on hydrologic breaks and major plant community types. Additionally, a VIBI score will be calculated for each fixed plot, as well. Native Plant Establishment Wetland credits shall have a composition of at least 75% relative coverage of native perennial hydrophytes (FAC, FAC+, FACW(+/-) and OBL) as indicated in National List of Plant Species that Occur in Wetlands [Region 1] (Reed, P.B., Jr U.S. Fish Wildlife Service Biological Report 88(26.1). 111 pp). VIBI field data shall be used to demonstrate whether or not this goal is being met. For each aggregated Bank sub-area, a percent relative cover of native perennial hydrophytes shall be calculated. Additionally, average percent relative cover of native perennial hydrophytes shall be calculated as a single value for each fixed plot. Invasive Species Wetland credits shall have less than 5% total relative coverage by invasive species as listed in Appendix D of the Final Mitigation Plan (Exhibit E). Appendix D includes all plant species considered to be potential invasive threats within Ohio wetland mitigation banks and their associated buffer areas. Eradication of these species should be accomplished as soon as 9

11 possible once they are identified within the Bank. At a minimum, the following performance standards are required: Wetland acreage available for credit release shall have less than 5% relative coverage of all non-typha invasive plant species listed in Appendix 7. Due to the difficulty of distinguishing the three species of cattails (Typha latifolia, Typha angustifolia, and Typha x glauca), as well as the likelihood that at least one of these will be present in many types of Ohio wetlands, the total relative coverage of all invasive species, including Typha spp., shall be less than 10%. Upland areas proposed for buffer credits shall also have less than 5% relative coverage of non-native invasive plant species listed on Appendix D of Exhibit E. VIBI field data should be used to demonstrate whether or not these goals are being met. For each aggregated bank sub-area, a percent relative cover of Typha spp. and a percent relative cover for all other invasive species should be calculated. Average percent relative cover for Typha spp, and average percent relative cover for all other invasives should also be calculated as a single value for each fixed plot. In no circumstance shall a predominance of invasive species be more than one continuous acre of relative coverage, even if the overall percent of invasive species, based on VIBI results is less than five percent. Since invasive species are generally not randomly distributed within a wetland, in addition to the VIBI analysis discussed above, a site map identifying all areas within the bank that are clearly dominated by any and all invasive species listed on Appendix D of Exhibit E should be submitted with each monitoring report. FORESTED HABITAT CRITERIA (Including Forested Wetland and Forested Buffers) In addition to the other performance standards for Bank credits, forested credits (including forested wetland and restored forested riparian and upland buffer areas) will only be released when it can be demonstrated, to the satisfaction of the IRT, that all forested areas available for credits are on a trajectory to being forested in the long term. Areas where it can be demonstrated, to the IRT s satisfaction, that a trajectory to being forested, as well as all other release criteria are being met can receive forested wetland credits. Areas where it cannot be demonstrated that a trajectory to becoming forested wetland is met can still be released as non-forested wetland credits, if they meet all other release criteria. This demonstration is made by graphing basic forestry measures, including frequency, density, dominance per species against time. A minimum of 400 native woody plants per acre must be present at the end of the monitoring period. Additionally, the following performance standards must be demonstrated to document the successful establishment of forested habitat: 1. a minimum of 200 native, free standing, live and healthy (disease and pest free) trees per acre are present at the end of the monitoring period; 2. a minimum of 8 native tree species are growing within the forested area, and each of these 8 species represents at least 5% of the overall tree count at the end of the monitoring period; 10

12 3. a minimum of 25% of all live trees present consist of at least 4 species having coefficient of conservatism values from 5 to 10 at the end of the monitoring period 4. a minimum of 200 native, free standing, live and healthy (disease and pest free) shrubs/sub-canopy tree species per acre are present at the end of the monitoring period; 5. a minimum of 8 native shrub/sub-canopy species are growing within the forested area, and each of these 8 species represents at least 5% of the overall shrub/subcanopy tree count at the end of the monitoring period; 6. a minimum of 25% of all live shrubs/sub-canopy trees present consist of at least 4 species having coefficient of conservatism values from 5 to 10 at the end of the monitoring period. HEADWATER STREAM CRITERIA In addition to the other applicable performance standards for Bank credits, stream credits will only be released when it can be demonstrated, to the satisfaction of the IRT, that all eligible stream credits are on a trajectory to meeting Class II Headwater Stream criteria in the long term. This demonstration shall be made by qualitative assessments over baseline conditions, described in the Waters of the U.S. Delineation Report (Exhibit D). These data will be taken to observe the development and morphology of the restored stream channels, allowing the Sponsor and IRT to evaluate stream pattern, dimension and profile. The following parameters will be measured after construction and each year: Longitudinal and Cross Section Surveys Mean bankfull depth (ft) Bank full width (ft) Width/Depth Ratio Entrenchment Ratio Bank Stability via Erosion Pins Sinuosity (ft) Meander Wavelength (ft) Mean Radius of Curvature (ft) Amplitude (ft) Riffle-Pool Spacing (ft) Pebble Counts The following performance standards must be demonstrated to document the successful establishment of headwater streams. Restored headwater streams shall meet the attainment status of Class II Headwater Streams using the Headwater Habitat Evaluation Index (HHEI) or HMFEI. A minimum HHEI score of 50.0 or a minimum HMFEI score of 7.0 must be attained. At least 400 living trees/shrubs per acre (including volunteers) will be present in the forested riparian buffer, which extends a minimum of 50m from each bank. No more than 10% of the seeded/planted riparian area shall be bare ground at the end of the monitoring period. Bare ground is defined as areas with less than 10% vegetative cover. No more than 5% of the total relative cover of the riparian area shall be dominated by non-native, invasive species as listed in Appendix D of the Final Mitigation Plan (Exhibit E). The streams will be representative of a Rosgen Class B6 and/or B6c through the upper reaches and graduate down to a C4 as the channels approach existing Stream A at the southern border of the site. 11

13 Restored headwater stream design shall be confirmed by an As-Built survey. Stream pattern, dimension, and profile must be within an acceptable 15% degree of deviation in order for credits to be released according to schedule below. F. Credit Release Schedule: Upon execution of this Agreement the Bank may sell thirty percent (30%) of the total anticipated mitigation credits of the phase to be constructed. Implementation of the restoration plan for each phase must take place within one full growing season from the date of the sale of the first credit. All credit releases including the first release must be authorized by the Corps in writing to the Sponsor before any credits may be sold. Under no circumstance should credits be sold prior to this written authorization. Failure to comply (including over selling), will result in consequences including but not limited to: forfeiture of credits, suspension of future credit sales, etc. Regional Internet Bank Information Tracking System (RIBITS) RIBITS is an interactive website designed to track the status of mitigation banks in the Corps Districts and to provide up-to-date banking information to bank sponsors and applicants. All credit releases for the Bank will be loaded into RIBITS by the Corps. The Sponsor will subsequently be required to update the credit sales as they occur to provide accurate and real-time accounting. The Sponsor will need to enter the required fields into the system as directed by the Corps. A copy of the RIBITS Credit Ledger can be found in Exhibit I. The First Release of Credits Up to 30% of the total anticipated credits for each phase will be released once the Banking Instrument has been approved and signed by the Sponsor, Long-Term Manager, and the IRT. Construction, including all proposed plantings, must be completed within one year of the initial release. In order to assure the integrity of the final Bank plan, no construction activities shall commence prior to the signing of the Banking Instrument. Annual field monitoring of the Bank shall commence only after all of the following criteria have been met: Additional Credit Releases 1) Signature of the Bank Instrument by all IRT agencies, 2) One complete growing season has elapsed since the Bank was constructed (including seeding and planting of woody and herbaceous plants). Credits can be released at any time, in an amount up to the 25% final release holdback, if they are meeting all final performance goals specified in the signed Instrument. If the wetland, stream and buffer areas within a bank are developing as desired, but do not meet these final goals, the applicant may request interim credit releases according to the following schedule: 12

14 Year 3. Following the successful construction of the wetland, stream and/or buffer habitat and submittal of the Year 3 monitoring report, up to 15% of the total credits may be released if the following conditions are met: The wetland areas representing a minimum of 45% of the entire site (the initial 30% of credits plus 15% requested credits) meet wetland criteria; These same wetland areas have less than 15% relative coverage of non-native invasive plant species as defined in Appendix D of Exhibit E, and there has clearly been a reduction in overall invasive species cover between monitoring years 1 and 3. Invasive species coverage can consist of up to 10% of Typha spp., and less than 10% relative coverage of all other non-native invasive plant species, but not more than 15% total. The same wetland areas have at least 50% relative coverage of native perennial hydrophytes (FAC, FAC+, FACW(+/-), OBL), and there has clearly been an increase in overall coverage between monitoring years 1 and 3. The same wetland areas meet 80% of the target VIBI scores. All forested wetland and riparian buffer performance goals are clearly on a positive trajectory to meet requirements by the end of the monitoring period. The stream channels representing a minimum 45% of the entire site channel length (the initial 30% of credits plus 15% requested credits) meet Ohio EPA Class II Headwater stream criteria and Rosgen Class B6, B6c or C4 stream type. Year 5. Assuming that all necessary requirements described above were met after Year 3, up to 15% of the total credits may be requested for release if the following conditions are met: The wetland areas representing a minimum of 60% of the entire site meet wetland criteria; These same wetland areas have less than 12.5% relative coverage of non-native invasive plant species as defined in Appendix D of Exhibit E and there has been a clear reduction in invasive species coverage between monitoring years 3 and 5. Invasive species coverage can consist of up to 10% of Typha spp., and less than 7.5% of all other non-native invasive plant species, but not more than 12.5% total. The same wetland areas have at least 60% relative coverage of native perennial hydrophytes (FAC, FAC+, FACW (+/-), OBL), and there has clearly been an increase in overall coverage between monitoring years 3 and 5. The same wetland areas meet 90% of the target VIBI scores. All forested wetland and riparian buffer performance goals are clearly on a positive trajectory to meet requirements by the end of the monitoring period. The stream channels representing a minimum 60% of the entire site channel length meet Ohio EPA Class II Headwater stream criteria and Rosgen Class B6, B6c or C4 stream type 13

15 Year 7. Assuming that all necessary requirements described above were met after Year 5, up to 15% of the total credits may be requested for release if the following conditions are met: The same wetland areas representing a minimum of 75% of the entire site meet wetland criteria; These same wetland areas will have less than 10% total relative coverage of invasive species as defined in Appendix D of Exhibit E. This can consist of up to 10% of Typha spp., and less than 5% relative coverage of all other non-native invasive plant species, but not more than 10% total. The same wetland areas have at least 75% relative coverage of native perennial hydrophytes (FAC, FAC+, FACW (+/-), OBL). The same wetland areas meet target VIBI scores. All forested wetland and riparian buffer performance goals are clearly on a positive trajectory to meet requirements by the end of the monitoring period. The stream channels representing a minimum 75% of the entire site channel length meet Ohio EPA Class II Headwater stream criteria and Rosgen Class B6, B6c or C4 stream type. The Final Release of Credits In all cases, a minimum of 25% of the total credits available at the Bank shall be withheld until the final monitoring report has been submitted and evaluated by the IRT. If all performance standards have been met, and any forested wetlands present within the mitigation bank have been clearly shown to be on a positive trajectory (as determined by the IRT) towards the development of a mature ecosystem (i.e., trees and shrubs are alive, healthy, and present in the numbers and diversity described above), the final 25% of credits may be released. Credits will not be released until a final delineation acceptable to the Corps has been submitted and approved. The IRT will make the final recommendation regarding credit release to the Corps and Ohio EPA. Release Conditions Release of credits requires consensus of the IRT that an additional credit release is warranted based on performance standards described above. Interim releases (3 rd, 5 th, and 7 th years) may occur following submittal of the annual monitoring reports, if all requirements have been met to the satisfaction of the IRT. The banker shall arrange for on-site visits of the IRT at a minimum of years 1, 3, 5, 7 and 10. Determinations on whether credits are meeting performance standards will be decided by the IRT. When consensus cannot be reached by the IRT, credit releases will require, at a minimum, the approval of both the Corps and Ohio EPA. Future Phase(s) Credit Release If the Sponsor demonstrates to the satisfaction of the IRT, acting through the Corps and Ohio EPA, that Phase I success criteria for all sold and unsold credits have been met or are on a trajectory to meeting all release criteria prior to any interim credit release, the Sponsor may petition the IRT to release the initial 30% of Phase II credits and commence Phase II construction in accordance with Part IV (F) of this Banking Instrument. Written approval must be provided by the IRT, acting through the Corps, that Phase 2 of the Umbrella Instrument can commence in accordance with 33 CFR 332.8(h) 14

16 G. Conditions on Debiting: Any credits debited before achieving the success criteria, shall require posting sufficient financial assurance to cover contingency actions in the event of partial or total failure. The form and amount of the assurances shall be approved by the Corps and OEPA, in consultation with other members of the IRT, prior to posting. Upon meeting the success criteria as determined by the Corps and OEPA, in consultation with other members of the IRT, the bond shall be released to the Sponsor. H. Provisions For Uses of the Mitigation Bank Area: The Sponsor shall NOT: 1. Grant additional easements, right of way, or any other property interest in or to the project areas without the written consent of the Corps and OEPA, in consultation with other members of the IRT. 2. Use or authorize the areas within the Bank for any purpose that interferes with its conservation purposes or other restrictions as described in the Environmental Covenant (Exhibit F). 15

17 V. MAINTENANCE AND MONITORING OF THE BANK A. Maintenance Provisions: The Sponsor agrees to perform all necessary work to maintain the Bank consistent with the maintenance criteria established and further described in the Mitigation Plan [Exhibit E]. The Sponsor shall continue with such maintenance activities until closure of a particular phase of the Bank. Upon closure of the Bank, the Sponsor shall implement the management requirements established in Part V, Section H. Deviation from the approved Bank Development Plan is subject to review and written approval by the Corps and OEPA, in consultation with the IRT. B. Monitoring Provisions: The Sponsor agrees to perform all necessary work to monitor the Bank to demonstrate compliance with the success criteria established in Part IV, Section E of this Banking Instrument. Monitoring for all wetlands and stream areas will continue for a period of 10 years as further described in the Mitigation Plan [Exhibit E]. The most intensive monitoring procedures will be conducted every other year (Years 1,3,5,7, and 9), while less intensive monitoring will take place the other years (Years 2,4,6,8, and 10). Monitoring will generally include the following (as well as the details provided in Exhibit E: Mitigation Plan): Wetlands (Emergent and Forested) A minimum of 2 site visits per year will be conducted to monitor the development of the wetlands at the site. One site visit will take place in the spring or early summer and one will take place in the late summer or fall. The spring visit will assess the hydrology during what is typically the wettest part of the year while the late summer visit will assess the development of the vegetative communities at the peak of the growing season. Acreage The wetland boundaries will be delineated according to the comprehensive methods and procedures outlined in the 1987 Corps of Engineers Delineation Manual and the 2008 Midwest Interim Regional Supplement Manual or successor documents. The survey will be completed every other year (Year 1, 3, 5, 7 and 9) and will include GPS mapping. Hydrology Monitoring Hydrologic conditions and measurements on the site will be recorded and noted in each year-end annual monitoring report through the ten-year monitoring period. Visual observations and photographs will be reported for the following: Standing water and/or saturated soils Excavation of test pits. Stream conditions such as blockages, erosion, flooding (off-site and on-site), and channel evolution stage Quantitative measurements in each wetland shall be collected and reported on a daily basis using automated hydrology recorders for the following: 16

18 Groundwater levels via piezometers with automatic data loggers (such automated instruments shall provide continuous reads to allow for development of hydrographs that aid in informed management decisions). Standing water via staff gauges with automatic data loggers Vegetation Monitoring Vegetative communities shall be assessed using 1-meter plot sampling techniques for each wetland for each year throughout the monitoring period. A fixed sampling plot will be installed in each wetland area; additionally, there shall be one random plot for every 2.5 acres of wetland monitoring. Random plots shall also be distributed in the forest buffers at the same density. Data for determining the total percentage cover of native hydrophytes, total percentage of native species, percent of unvegetated open water, and percent cover of invasive species will be collected every year through the ten year monitoring period. Visual (qualitative) vegetation inspections will be regularly conducted to assess these parameters and determine immediate management needs (e.g., need for control of invasive-exotic plants, to inspect wildlife damage on planted plants, etc). The following data shall be collected every other year (Years 1, 3, 5, 7, and 9): Quantitative monitoring of wetland vegetation will use the protocols outlined in the Field Manual for the Vegetation Index of Biotic Integrity for Wetlands v 1.4 (Mack 2007) and will be conducted every other year through the ten year monitoring period. A detailed vegetation survey using standard 20x50m plots consisting of a 2x5 array of 10x10m modules. Detailed richness and cover data will be collected and graphically presented in reports to show the status of native, non-native, invasive, and hydrophytic vegetation (trees, shrubs, and herbs). Vegetation IBI scores will be calculated and graphically represented to show trends over time. Tree and shrub counts shall be conducted as part of the Vegetation IBI every other year in the forested wetland area(s). From this data, a stems/acre density of trees and shrubs can be calculated and graphically represented to show trends over time. Along the streams and buffers, plant cover of the riparian sub-canopy will be assessed. Streams Monitoring efforts are designed to assess the condition of the streams and the riparian plant communities associated with the streams across the site. Parameters to be assessed along the created stream channels include plant cover of the riparian sub-canopy and stability of the stream banks, especially in close proximity to riffle installation and formation of pools downstream of the installed riffles. The following monitoring protocol will be used to determine stable dimension, pattern and profile, as well as, successful creation of the Rosgen Class B6 and/or B6c through the upper reaches and Class C4 through the lower reach. Longitudinal and cross-sectional profiles and erosion pins will be used to monitor channel length and stability. 17

19 Qualitative stream assessments to monitor success criteria and change in qualitative measurements over time, including pebble counts to monitor substrate, sinuosity, bankfull depth, bankfull width, W/D ratio, wavelength, amplitude, riffle/pool spacing, entrenchment ratio, watershed, and mean radius of curvature. The Banker and IRT will be able to monitor the success and change in these qualitative assessments over time. All measurements will be used to determine final Rosgen classification. An HHEI and HMFEI shall be used to monitor aquatic habitat using habitat evaluation indices (Ohio EPA, 2009) A Rosgen Classification using the assessment protocols described above Photographs will be taken from a minimum of three fixed points per completed stream section to document development of the streams across the site. These photos will document temporal changes in the stream and riparian corridor. The monitoring period will commence the growing season following the creation of each stream section. Annual monitoring will be performed for a minimum of ten years for each stream section completed. If the success criteria have been met, then sign-off by Ohio EPA and the Corps will be requested. A minimum of three site visits will be performed during the first year following completion of each stream section. Periodic site visits and bi-annual monitoring events will be used to determine the need for corrective actions such as stream bank repair, planting of riparian vegetation, or invasive plant species control. If any corrective actions are necessary, they will be addressed within 6 months. A final monitoring report will be submitted at the end of monitoring year ten for each completed section of the stream channel, and monitoring will be suspended when notified by Ohio EPA and the Corps. If Ohio EPA and the Corps determine that the success criteria have not been met, corrective action will be taken. Assessment Methodology for a Stable dimension, pattern, and profile The stream channels will be monitored for successful development of a stable dimension, pattern, and profile and successful creation of the Rosgen stream type. C. Reports: The Sponsor shall submit to the Corps and OEPA, for distribution to other members of the IRT, reports describing the conditions of the Bank and relating those conditions to the success criteria. Reports shall be submitted annually by December 31 st following each growing season and cover the following topics and activities during the reporting period: Restoration status Hydrology monitoring Vegetation monitoring Data analysis and interpretation Restoration management priorities Corrective actions taken/needed Annual summary of management activities 18