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FINAL Draft: GDOT Umbrella Mitigation Banking Instrument


For the
Georgia Department of Transportation State-Wide Umbrella
Wetland, Stream, and Watershed Mitigation Bank

Sponsor: Georgia Department of Transportation

Commenting Federal Agency: Federal Highway Administration, Georgia Division

Mitigation Bank Review Team:
U.S. Army Corps of Engineers
U.S. Environmental Protection Agency
U.S. Fish and Wildlife Service
National Marine Fisheries Service
Georgia Department of Natural Resources, Environmental Protection Division


GDOT Umbrella Mitigation Banking Instrument
For the
Georgia Department of Transportation
State-Wide Umbrella
Wetland, Stream, and Watershed Mitigation Bank
May 1, 2001
Last Revised: June 30, 2003

This Georgia Department of Transportation Umbrella Mitigation Banking Instrument (GUMBI) is made and entered into on the _____day of _________, 2003, by the Georgia Department of Transportation (GDOT) (Sponsor) Office of Environment/Location, 3993 Aviation Circle, Atlanta, Georgia 30336-1593 (phone: (404) 699-4400, fax: (404) 699-4440), and the U. S. Army Corps of Engineers (Corps), and each of the following agencies, upon its execution of this GUMBI; the Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) , the National Marine Fisheries Service (NMFS), the Georgia Department of Natural Resources- Environmental Protection Division (GDNR-EPD) and the Federal Highways Administration (FHWA). The Corps, together with the State and Federal agencies that execute this GUMBI for the GDOT State-Wide Umbrella Wetland, Stream, and Watershed Mitigation Bank (Umbrella Bank), are hereinafter collectively referred to as the Umbrella Mitigation Bank Review Team (Umbrella MBRT). Other federal and state agencies, such as the U.S. Department of Agriculture- Natural Resources Conservation Service (NRCS) and the Georgia Department of Natural Resources - Wildlife Resources Division (GDNR-WRD), may be relied upon by the MBRT for technical guidance. This GUMBI shall become effective between signatures upon execution by the GDOT, the Corps, and one or more of the other agencies.

This GUMBI governs the establishment, use, operation, and maintenance of the Umbrella Bank. This GUMBI sets the framework by which individual mitigation sites (Bank Sites) will be addended to this GUMBI as they are identified. This GUMBI also sets the framework by which MBRTs for each Bank Site (Bank Site MBRT) will review Site Specific Mitigation Plans and GUMBI Addendums. Changes to the GUMBI will be formatted as Addendum(s) (GUMBI Addendum(s)). It is the intent of this agreement to enable the parties hereby to eliminate redundancy in administration and focus review and resources on technical issues related to the development, implementation, and success of Site Specific Mitigation Plans for each Bank Site addended to this GUMBI.

I. Preamble

  1. Purpose: The primary goal of the Umbrella Bank is to restore, enhance, create and/or preserve tidal and non-tidal wetlands, riparian systems, streams, and contiguous buffer corridors and their functions and values to compensate in appropriate circumstances for unavoidable wetland and stream impacts for proposed GDOT transportation improvement projects (activities) as authorized by Sections 404/401 of the Clean Water Act and Section 10 of the Rivers and Harbors Act permits in circumstances deemed appropriate by the Corps after consultation, through the permit review process, with member agencies of the Umbrella MBRT.

    In addition, this GUMBI establishes guidelines and responsibilities for the establishment, use, operation, maintenance, "close-out" and transition of ownership of the GDOT Umbrella Bank and addended Bank Sites. The Umbrella Bank will be used primarily for compensatory mitigation for unavoidable impacts to wetlands, streams, and riparian corridors throughout the State of Georgia which result from GDOT transportation improvement activities which are authorized under Sections 404/401 of the Clean Water Act and /or Section 10 of the Rivers and Harbors Act, provided such use has met all applicable requirements and is authorized by the appropriate authority. On a case-by-case basis, impacts to other open waters (aquatic resources) of the United States (as defined in Fed. Reg. Vol. 65, No. 47), may be mitigated with credits from the Umbrella Bank. This Umbrella Bank may also be used for providing mitigation for other federal, state, and local mitigation requirements for GDOT activities provided such use has met all applicable requirements, is authorized by the appropriate authority, and authorized by the Umbrella MBRT.
  2. Use of Credit: Use of credits from the Umbrella Bank to offset wetland and stream impacts authorized by Clean Water Act permits must be in compliance with the Clean Water Act and implementing regulations, including but not limited to the 404(b)(1) Guidelines, the National Environmental Policy Act (NEPA), 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) and Guidelines on the Establishment & Operation of Wetland Mitigation Banks in Georgia. (date, ref. ) (Georgia Guidance). This agreement shall incorporate and follow guidelines to be set out in future amendments, as appropriate, to these documents.
  3. MBRT: The Umbrella MBRT shall be chaired by the representative of the U.S. Army Corps of Engineers, Savannah District. The Umbrella MBRT shall facilitate the establishment of the GUMBI and facilitate reaching consensus on Bank Sites. The Umbrella MBRT shall monitor the accounting ledger for the Umbrella Bank. The Umbrella MBRT shall consist of:
    1. U.S. Army Corps of Engineers, Savannah District (Chair)
    2. U.S. Environmental Protection Agency, Region 4
    3. U.S. Fish and Wildlife Service
    4. National Marine Fisheries Service
    5. Georgia Department of Natural Resources - Environmental Protection Division

    For each Bank Site, a MBRT will be established by the Corps (Bank Site MBRT). The Bank Site MBRT will be comprised of the same agencies included on the Umbrella MBRT, unless the Umbrella MBRT and GDOT agree otherwise. For northern Georgia projects, some bank sites may include a representative of the Tennessee Valley Authority. The Bank Site MBRT for each Bank Site may contain different representatives of the agencies comprising the Umbrella MBRT. The Bank Site MBRT is responsible for reviewing Site Specific Prospectuses, Site Specific Mitigation Plans and coordinating with the Umbrella MBRT any GUMBI Addendums that may be required. The Bank Site MBRT shall also review monitoring and accounting reports for individual Bank Sites as described below. In addition, the Bank Site MBRT will review proposals for remedial actions proposed by GDOT or any of the agencies represented on the Bank Site MBRT. The various MBRTs' role and responsibilities are more fully set forth in Sections II. C. 3 and 6 of the Guidance, which are incorporated herein by reference. The MBRTs will work to reach consensus on its actions.

  4. Bank Sites/Mitigation Plans: GDOT retains legal rights to develop or sponsor wetland, stream, and watershed mitigation projects throughout the State of Georgia to satisfy Sections 404/401 and Section 10 permitting requirements. GDOT is also developing plans to establish and/or maintain wetland communities and streams as part of this Umbrella Bank. Mitigation projects that will be included as part of the Umbrella Bank will be called Bank Sites. A Bank Site may include one or more parcels of land and may include one or more forms/types of mitigation (wetlands, streams, restoration, creation, enhancement, preservation, etc.). Each Bank Site will be subject to the terms of the GUMBI as well as a site specific GUMBI Addendum, as necessary.

    Existing mitigation sites established by GDOT with participation by MBRT and subject to an existing Mitigation Banking Instrument will not be subject to this agreement. Through various other agreement mechanisms, such as permit actions, GDOT and member agencies have already established and are implementing agreements regarding mitigation sites that will not be subject to or superceded by this agreement.

    The need for supplemental site-specific information will be addressed on a case-by-case basis through individual Site Specific Mitigation Plans and GUMBI Addendums submitted to the MBRT for each respective Bank Site for approval. These Site Specific Mitigation Plans shall be prepared per the State of Georgia mitigation guidelines.

    This GUMBI may be amended to include additional mitigation types or Bank Sites or to exercise certain Bank Sites, subject to the reasonable notice by GDOT for review and approval of the Corps and the MBRT (Appendix A).
  5. Location and Ownership: Under this GUMBI, GDOT will restore, enhance, create and/or preserve wetland, stream, and riparian systems (or other open waters of the U. S. as defined in Federal Register Vol. 65, No. 47) in Georgia watersheds, in accordance with the provisions of this GUMBI, and then protect these systems in perpetuity. GDOT shall maintain each Bank Site in its appropriate condition until the approved success criteria are met. At a minimum, GDOT will record a restrictive covenant for each Bank Site. In the event GDOT makes an agreement with a conservancy for a Bank Site, the restrictive covenant will include provisions that allow the Bank Site to be transferred to a conservancy upon fulfillment of project objectives.
  6. Baseline Conditions: Each Bank Site (containing wetland, stream, and/or riparian buffers) proposed for inclusion in the Umbrella Bank will be submitted as an addendum to this document (Site Specific Mitigation Plan/ GUMBI Addendum). A detailed description of the baseline conditions (pre-mitigation) for each Bank Site will be contained in the Pre-Application Prospectus and Site Specific Mitigation Plans, also referred to as GUMBI Addendum(s) to this document, to be provided to the Bank Site MBRTs for approval of Bank Sites. The total existing acreage and linear footage for each wetland and/or stream mitigation reach will be included in the Site Specific Mitigation Plan along with a description of any adjacent buffers. This information will include a detailed discussion of areas within the proposed Bank Site that are amenable to restoration, enhancement, creation, or preservation based upon the ecological suitability of a site for achieving the goals and objectives of the Umbrella Bank.
II. Authorities

The establishment, use, operation, and maintenance of the Umbrella Bank is carried out in accordance with the following authorities:

    1. Clean Water Act (33 U.S.C. 1251 et seq.)
    2. Rivers and Harbors Act (33 U.S.C. 403)
    3. Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.)
    4. Regulatory Programs of the Corps of Engineers, Final Rule (33 CFR Parts 320-330)
    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 and Maintenance of Mitigation Banks (F.R. Vol. 60, 58605 et seq., Number 228, November 1995)
    8. Guidelines on the Establishment and Operation of Wetland Mitigation Banks in Georgia.
    9. Standard Operating Procedure Compensatory Mitigation - Wetlands, Open Water and Streams, Savannah District, Corps of Engineers, June 7, 2000.
    10. Any future applicable revisions, clarifications and updates of the above statutes and guidance documents. That is, as documents are prepared pursuant to this agreement, they will conform to the standards or guidelines in place at the time of submission, not necessarily at the time the GUMBI was approved.
  1. Authority of the Corps: The Corps, who will be the official lead/chair for the MBRT, shall be responsible for establishing the Umbrella MBRT and designating Points of Contact (POCs) for the Corps and MBRT. 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 and stream impacts, and whether the use of credits from the Umbrella Bank and the amount and type of credits are appropriate to offset those impacts. The Corps will be responsible for reviewing accounting reports/ledger for the Umbrella Bank.

    The Corps will establish the MBRT members for individual Bank Sites. These Bank Site MBRT members will review the Site Specific Mitigation Plans and GUMBI Addendums. The Bank Site MBRTs will not amend the Umbrella Bank GUMBI. The Umbrella Bank GUMBI will be subject to the Umbrella Bank MBRT referenced in this document and established by the Corps. The Corps will also establish additional technical resources for Bank Site MBRTs, as needed to assist the MBRT in performing its technical evaluation of Site Specific Mitigation Plans.

NOW, THEREFORE, the parties agree to the following:

III. General Provisions

1. Establishment of the Umbrella Bank and Bank Sites

  1. Establishment of the Umbrella Bank: GDOT will obtain all appropriate environmental documentation, permits, or other authorizations needed to establish and maintain the Umbrella Bank. This GUMBI does not fulfill or substitute for such authorization. This GUMBI does fulfill authorization for establishment, use, operation, and maintenance of an Umbrella Bank to be administered by GDOT pursuant to the Guidance.
  2. Establishment of Bank Sites and GUMBI Addendums: GDOT will obtain all appropriate environmental documentation, permits, or other authorizations needed to establish and maintain the Bank Sites. This GUMBI does not fulfill or substitute for such authorization. This GUMBI and GUMBI Addendums do fulfill authorization for the establishment, use, operation and maintenance of Bank Sites to be administered via the GUMBI pursuant to the Guidance.
  3. Perpetual Protection/ Real Estate Provisions: Property subject to the GUMBI and authorized by the Corps as a mitigation bank site, shall be perpetually protected by a Declaration of Covenants and Restrictions. All restrictive covenants should be drafted utilizing the latest version of the Corps Savannah District's model document entitled, "Declaration of Covenants and Restrictions," referencing the Instructions for Declaration of Covenants and Restrictions. The draft document and instructions are located on the Savannah District web site as www.sas.usace.army.mil. (copy of most recent version at time of signing attached as Appendix B). Select "Permit Info" and scroll down under the Savannah District Regulatory Publications to locate the document. Upon written approval by the Corps Office of Counsel, the restrictive covenant will be recorded in the land records at the Office of the Clerk of the Superior Court in the county in which the land lies. A copy of the recorded restrictive covenant, showing book and page numbers of its recorded location, shall be provided to Office of Counsel.

    Subsequent to the recording of the declaration of covenants and restrictions, should GDOT convey the Bank Site property identified in the restrictive covenant either in fee or by granting a easement to a qualified land trust, or should GDOT convey an interest in said property to a Georgia county or municipal greenspace program, or otherwise transfer an interest in the property, the terms and conditions of said conveyance shall not conflict with the intent and provisions of the restrictive covenant nor shall such conveyance enlarge or modify the uses specified in the restrictive covenant. A transfer/conveyance of a property from GDOT to another must be to a group/entity that meets the qualifications developed by the Corps of an approved land trust. If said terms and conditions do enlarge or modify the uses with respect to the property, then GDOT shall consult with the MBRT and Corps Office of Counsel. The MBRT shall approve the transfer to a third party. Corps Office of Counsel shall review the transfer of interest language for purposes of determining possible conflict with the terms and conditions of the restrictive covenant.

    A copy of the restrictive covenant to be used as the standard on Bank Sites is included as Appendix B. Should individual property owners require the use of revised language to the referenced standards, draft documents for that specific Bank Site shall be provided to the Corps for approval prior to recording. GDOT shall provide documentation of the filing of a restrictive covenant per guidelines set forth in Section III.1.C. of this agreement.

    Should GDOT transition/convey a Bank Site or phase of a Bank site to a land conservancy (trust) group, the conservancy group will be responsible to meet all remaining required GUMBI, GUMBI Addendum(s), and/or Site Specific Mitigation Plan(s) conditions for the Bank Site at the time of transition including maintenance, monitoring, and perpetual protection of the Bank Site.

2. Operation of Umbrella Bank and Bank Sites

  1. Umbrella Bank Geographic Service Area: The Umbrella Bank geographic service area shall include all USGS Hydrologic Units (HUC) within the State of Georgia. Banking Sites would be sited as needed to compensate for future GDOT transportation improvement projects planned within each drainage basin. Each Bank Site would provide mitigation within Service Areas, as established for Georgia by the MBRT agencies in May 2000. Use of a Bank Site to compensate for impacts beyond the geographic service area may be considered by the MBRT on a case-by-case basis. MBRT may consider geographic service area proposals by GDOT that deviate from those established for Georgia in the May 2000 guidance document. Table 1(attached) shows the HUCs and physiographic provinces of each service area and Attachment 1 (attached) illustrates the geographic service areas for the Umbrella Bank.

    Additionally, it is the intent of this agreement that GDOT will attempt to develop mitigation in and use credits from "in-basin" Bank Sites, for transportation improvement projects in that "basin". Use of a Bank Site and the credits derived from that Bank Site for "out-of-basin" projects will be considered on a case-by-case basis by the MBRTs.
  2. Pre-Application Prospectus: A Pre-application Prospectus will be developed by GDOT and submitted to the Bank Site MBRT for each Bank Site. To facilitate the processing of Bank Sites from Pre-application through "close out", procedures have been developed as part of this agreement and included as Appendix C. Specifics of a Pre-application Prospectus are contained in that document.

    In summary, a Pre-application Prospectus will contain information such as:
    • Location of the site including maps, physiographic province, river basin, watershed, hydrologic unit
    • Site condition including present/recent land use and adjacent area land use
    • Current zoning and zoning for adjacent properties
    • Ownership of the Bank Site, whether it is a willing seller, and status of land exchange/control by GDOT. Encumbrances, utility easements, etc. on the land.
    • Each type of mitigation proposed on the site and an estimate of existing and proposed acreage/linear footage based on SOP criteria and/or brief functional assessment.
    • Preliminary Site Plan and how functions will be improved.
  3. Site Specific Mitigation Plans/GUMBI Addendums: Site Specific Mitigation Plans and GUMBI Addendums will be developed by GDOT and submitted to the Bank Site MBRT for each Bank Site. To facilitate the processing of Bank Sites from Pre-application through "close out," procedures have been developed as part of this agreement and included as Appendix C. Specifics of a Site Specific Mitigation Plan and GUMBI Addendum are contained in that document.
  4. Phasing: It is possible for unforeseen reasons, though not required or desired, that the Bank Sites or portions thereof may be developed in several phases which shall be set forth in the Site Specific Mitigation Plans. Scope and timing of each phase shall be at the discretion of GDOT, subject to Bank Site MBRT approval. However, if GDOT develops areas in excess of the areas for which design has been approved by the Bank Site MBRT, GDOT does so at its own risk. Credit release for a Bank Site or phases of a Bank Site will be based on the credit release schedule (or as amended in GUMBI Addendum) and achievement of the defined Success Criteria contained in the Site Specific Mitigation Plan for the Bank Site or phase of a Bank Site.

    GDOT's intent is to minimize phasing on Bank Sites in order to minimize administrative efforts on behalf of the MBRTs and Sponsor. However, the parties to this agreement recognize that there may be instances where phasing is appropriate and preferred, such as when phased funding is involved, timing of availability of land from property owners on multiple tracts of land is phased, and when multiple types of mitigation (wetlands, streams) are included in a Bank Site. Should phasing be used on a Bank Site, each phase will individually be reviewed, tracked, monitored and have its credits released.
  5. As-Built Report: GDOT shall use its best effort to submit an as-built report for each Bank Site or phase of a Bank Site to the Bank Site MBRT as soon as practical after completion of the implementation of the site. The intent is to have the contractor complete and GDOT submit the as-built report as soon as possible. Specific details for timing of completion and submission as well as report specifications are included in Appendix C.
  6. Access to Bank Sites: The members of the MBRTs will be allowed reasonable access to the Property of Bank Sites under control of GDOT for the purposes of inspection of the Bank Sites and compliance monitoring of the Site Specific Mitigation Plans. MBRTs will notify GDOT that such access has been gained on a Bank Site.
  7. Establishment and Use of Credits: Mitigation available from the Umbrella Bank and its component Banking Sites (and phases of Bank Sites as appropriate), and debits incurred by applicable projects' wetland and stream impacts will be computed using the methodology set forth in the most current edition of the Savannah Corps of Engineers Standard Operating Procedures (SOP) for Compensatory Mitigation for Wetlands, Open Water, and Streams (June 7, 2000) or future updates to the SOP, or other methodology accepted by the parties to this agreement if so directed by the MBRTs and agreed to by GDOT. Mitigation including SOP credits generated and utilized will be tracked and reported separately for each Bank Site added to the Umbrella Bank (Appendix D). The necessary SOP worksheets will be completed along with an explanation for the selection of those factors included in the calculations for each component Bank Site to determine SOP credits. For each project submitted for mitigation at the Umbrella Bank, an individual assessment will be computed based on the most current version of the SOP at the time of the 404/401/10 permit application. On a case-by-case basis, revised criteria for quantifying mitigation and credits/debits, if agreed to by the parties to this agreement, may be incorporated for individual Bank Sites through an GUMBI Addendum.

    GDOT, currently, will be the only potential user of the mitigation (credits) from the Umbrella Bank. Additionally, GDOT cannot expend funds to develop Bank Sites that may not be used by GDOT. Subsequently, in instances where GDOT's planned transportation improvements that were used as the basis for determining mitigation needs in the State have been terminated or the need for mitigation in particular HU's has changed due to unforeseen events (project funding changed, planned transportation project terminated or amended to have no impacts requiring the use of the Umbrella Bank), the review/processing of certain Bank Sites may be terminated.

    Should GDOT determine it necessary to withdraw a Bank Site from the Umbrella Bank, GDOT will notify Umbrella MBRT and relevant Bank Site MBRT of its need. The proposal to withdraw a Bank Site will be discussed at the next meeting of the agencies. GDOT will present information leading up to the decision that a withdrawal is needed. The Umbrella MBRT will provide the final decision regarding the request.

    Should credits have been withdrawn from a Bank Site, GDOT agrees to continue to meet the obligations contained in the Site Specific Mitigation Plan/GUMBI Addendum for that Bank Site.

    It is GDOT's intent to only submit Bank Sites to the MBRT for review that may be developed to meet planned needs. However, should GDOT need to terminate the processing/review of a Bank Site, GDOT shall provide written notice to the MBRT proposing to withdraw from the Umbrella Bank either entire Bank Sites, or approved phases of Bank Sites, from which credits have not been debited. Such a withdrawal of a Bank Site or phase of a Bank Site must be approved by the Corps and the MBRT.

    Due to the expected variability in remedial actions required for individual Bank Sites, specific success criteria and mitigation credit release milestones will be developed and submitted for each Bank Site, phase of a Bank Site or component added as part of the Site Specific Mitigation Plan/GUMBI Addendum. Final mitigation credit release from a Bank Site or phase of a Bank Site will be expected to occur following completion of the appropriate monitoring period and achievement of approved success criteria contained in the Site Specific Mitigation Plan. Monitoring, survival, and morphology goals and schedules will be developed and submitted per each Site Specific Mitigation Plan. Mitigation credits available from a Bank Site shall cease once an official "close-out" notification letter from the Bank Site MBRT has been issued (Appendix C), unless future Corps guidelines change that allow for additional credits to accrue over time, which through documentation to be provided by Sponsor can be demonstrated to have accrued.

    Notwithstanding the above, all decisions concerning the appropriateness of using mitigation from the Umbrella Bank to offset impacts to waters, streams, and wetlands, as well as all decisions concerning the quantity and type of such mitigation to be used to offset wetland, streams, and waters 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 Umbrella Bank to the members of the Umbrella MBRT, and consultation with the members of the Umbrella MBRT concerning such use. Notice to and consultation with the members of the Umbrella MBRT shall be through MBRT meetings, GDOT quarterly meetings, monthly conference calls, the permit review process for GDOT transportation improvement projects and any other meetings called where parties to the agreement can be available.

    Based upon the Corps guidelines, the GDOT State-Wide Umbrella Mitigation Bank may be an appropriate form of compensation for projects which require Nationwide Permits, Individual Permits or Regional Permits.

    It is anticipated by the parties to this agreement that use of mitigation shall be "in-kind;" for example, non-tidal wetland and stream mitigation will be used to offset non-tidal wetland and stream impacts, respectively.
  8. Schedule of Credit Availability: Upon submittal of all appropriate documentation by GDOT and subsequent approval by the Corps, in consultation with the other members of the Umbrella MBRT, it is anticipated that the credits generated by Bank Sites will become available for use by GDOT in accordance with the Standard Umbrella Bank Credit Release Schedules described below. The current release schedule which will apply to this Umbrella Bank unless otherwise agreed by the parties to this agreement through GUMBI Addendums follows:

    Schedule for WETLANDS restoration/creation/enhancement
    15 % upon approval of GUMBI Addendum and recording of restrictive covenant (No credit will be given for letting contract because contracts fall through.)
    35 % upon completion of wetland/stream restoration/enhancement actions (This could possibly be broken out into planting and hydrological restoration.)
    35 % released incrementally during monitoring period as milestones for success criteria are met, as described in the Site Specific Plan and agreed to by the MBRT
    15 % when final success criteria are met (after 5 years of monitoring or as otherwise agreed to by MBRT, if not released as described above)
    Schedule for STREAMS restoration/creation(relocation)/enhancement
    15 % upon approval of GUMBI Addendum and recording of restrictive covenant (No credit will be given for letting contract because contracts fall through.)
    35 % upon completion of wetland/stream restoration/enhancement actions (more flexibility in release because not all work is need for increments, i.e., 10 % for reconstruction of banks, 15 % for reconstruction in stream channel and 10 % for planting)
    35 % released incrementally during monitoring period as milestones for success criteria are met, as described in the Site Specific Plan and agreed to by the MBRT
    15 % when final success criteria are met (after 5 years of monitoring or as otherwise agreed to by MBRT, if not released as described above)
    Schedule for WETLANDS/STREAMS preservation
    A. When preservation is one component of a Bank Site with multiple forms of mitigation
    85 % upon recording of the restrictive covenant
    15 % after five years or until associated restoration is complete, with MBRT approval (if credits held back, GDOT could sell property)
    B. When preservation is 100% of the Bank Site
    85 % upon recording of the restrictive covenant
    15 % after five years or until associated restoration is complete, with MBRT approval (if credits held back, GDOT could sell property)

    The above schedule applies only to the extent GDOT documents acceptable survival and growth of planted vegetation, attainment of acceptable wetland/stream hydrology, and acceptable installation of any proposed watershed BMPs, as described under the success criteria in the monitoring section of the Site Specific Mitigation Plan. The final 15% of credits of a Bank Site will be available for withdrawal only upon a determination by the Bank Site MBRT of functional success as defined in the Site Specific Mitigation Plan. All credit releases are at the determination of the Bank Site MBRT.

    GDOT will initiate or award a construction contract for activities planned for the physical and biological improvements to a Bank Site pursuant to the Site Specific Mitigation Plan, no later than the end of the first full growing season (as defined in the Site Specific Mitigation Plan) following approval of the Site Specific Mitigation Plan. GDOT shall use its best effort to expedite award of construction contract and initiate mitigation actions, however, under certain circumstances schedule may need to be amended.

    These circumstances typically could include:
    1. Receipt of bid by Sponsor not conforming with State and Federal Guidelines/Laws.
    2. Failure of bonding mechanisms.
    3. Failure to receive bids from qualified contractors.
  9. Provisions for the Use of the Mitigation Banking Sites: GDOT shall not:
    1. Grant additional easements, right of way, or any other property interest in or to the project areas of a Bank Site without written consent of the Corps, in consultation with the Bank Site MBRT.
    2. Use or authorize the areas within the Umbrella Bank for any purpose that interferes with its conservation purposes other than those specified in the Site Specific Mitigation Plan, Deed, and/or Easement governing the use of each Bank Site.

3. Maintenance/Monitoring of Bank Sites

  1. Monitoring: GDOT agrees to perform all necessary work to monitor the Bank Sites (and if appropriate, phases of Bank Sites) and to demonstrate compliance with the Success Criteria established in this GUMBI and the Site Specific Mitigation Plan(s)/GUMBI Addendum(s). Success Criteria will typically be based on MBRT guidance, and future revisions to the guidance, provided by member agencies of the MBRT and those outlined in the Site Specific Mitigation Plans. Monitoring goals and schedules based on the monitoring criteria outlined in the most recent Standard Operating Procedures (SOP), or other methods as agreed by the parties to this agreement at the time the Site Specific Mitigation Plan was developed will be developed and submitted for each GUMBI Addendum to the Umbrella Bank. Monitoring procedures, duration and reporting criteria, and scope are included in more detail in Appendix C.
  2. Long-term Management: GDOT shall implement the long-term management measures described in the Site Specific Mitigation Plan for each Bank Site.

    At the end of the active monitoring period for each Bank Site, GDOT reserves the right to transfer the restrictive covenant or easements for the Bank Site lands to a third party (if available) approved by the Bank Site MBRT. Subsequently, this entity shall be responsible for managing the lands in perpetuity.
  3. Assurance of Success: GDOT is responsible for assuring, as outlined in the Guidance, the success of the restoration, creation, enhancement and preservation activities at the Bank Sites, and for the overall operation and management of the Umbrella Bank. Should a Bank Site or phase of a Bank Site be assigned to a land trust, the trust will be required to assure the success of the Bank Site or phase of the Bank Site per this agreement, mechanism of assurance to be determined by the MBRT.(FWS says GDOT should keep response.-need a decision) Financial assurances are not typically required, nor anticipated to be required for typical Bank Sites, for the Umbrella Bank GUMBI. Financial assurances could be required for unique sites. However, the need for type of and amount of financial assurance required for an individual Bank Site meeting the unique criteria will be evaluated on a case-by-case basis per the Guidance and incorporated into the Bank Site GUMBI Addendum/Site Specific Mitigation Plan.
  4. Maintenance Provisions: GDOT agrees to perform all necessary work in accordance with the provisions of the GUMBI and approved Site Specific Mitigation Plans/GUMBI Addendums, to establish and, or maintain the Bank Sites until (i) credits have been exhausted or banking activity is voluntarily terminated with written notice by GDOT provided to the Corps and other members of the Umbrella MBRT; and (ii) it has been determined and agreed upon by a Bank Site MBRT that the debited Bank Site has satisfied all the conditions herein and in the Site Specific Mitigation Plans. Upon receipt of a request by GDOT to "close-out" a Bank Site, the Corps and subsequently Bank Site MBRT shall use best efforts to review and comment on the request within 60 days of such submittal. Should the conditions described above be met based on Corps and Bank Site MBRT review (after all comments received from Bank Site MBRT members), the Corps shall issue a "close-out" letter to GDOT for a Bank Site or phase of a Bank Site (Appendix C). Upon receipt of the "close-out" letter, GDOT will update the accounting ledger to reflect the new status.
  5. Accounting Procedures: GDOT will track mitigation according to the current version of the SOP, annually reporting the Umbrella Bank status to the Umbrella MBRT, as set forth in the monitoring section (Section III. 3. A.) of this GUMBI based upon the "Guidelines on the Establishment and Operation of Georgia Department of Transportation Wetland Mitigation Banks ( date )." Such tracking will include debits related to permitted projects, and any mitigation accrued when success criteria are met as specified in the GUMBI. A ledger for tracking debits, available credits, and permitted projects will be submitted to the Corps and the Umbrella MBRT. GDOT shall use its best effort to submit the ledger within 60-days of an approved Umbrella Bank transaction. A copy of the accounting ledger/tracker format is included as Appendix D.

    All reports/ledgers shall identify mitigation debited by type (e.g. wetland, stream), and shall identify acres/linear feet, or other units of measure established for an individual Bank Site, debited and remaining by type. All reports/ledgers shall include for each reported debit the Corps Action ID number for the permit for which the mitigation was used.
  6. Annual Reports: GDOT shall submit to the Corps (acting as chair), for distribution to each member of the Umbrella MBRT, an annual report describing the condition of the Umbrella Bank and relating the conditions of the Umbrella Bank to the Bank Sites' Site Specific Mitigation Plans' Success Criteria. Annual reports will be submitted each year until the termination of this agreement.
  7. Contingency and Remedial Plans: Contingency and remedial plans, consistent with those outlined in the most recent Guidance or future published revisions as appropriate, will be developed for each Bank Site. These plans will be included in the Site Specific Mitigation Plans. These plans will establish the groundwork by which GDOT will proceed to correct deficiencies identified on a given Bank Site, as appropriate. In that remedial actions cannot be determined at this time or at the time of the preparation of the Site Specific Mitigation Plan, GDOT retains the right to propose and use amended remedial action plans, as appropriate, upon identification of remedial needs in the future.

    The Corps shall review the annual reports and monitoring reports, and may at any time, after consultation with GDOT and the Umbrella MBRT, direct GDOT to take remedial action at a Bank Site. Remedial action required by the Corps shall be designed to achieve the performance criteria specified above. All remedial actions required under this paragraph shall include a practical work schedule and monitoring criteria that will take into account physical and climactic conditions. Remedial actions will follow the contingency /remedial action plans included in the Site Specific Mitigation Plan for that Bank Site, unless more appropriate alternatives are proposed by GDOT.

    If the authorizing agency(ies) determines that the Umbrella Bank is operating at a deficit, debiting of credits will immediately cease and the authorizing agency(ies), in consultation with the Bank Site MBRT and GDOT, will determine what remedial actions are necessary to correct the situation. At the request of GDOT, the Bank Site MBRT will perform a final compliance visit to determine whether all success criteria have been satisfied at a given Bank Site (Appendix C).

    GDOT shall implement any remedial measures required by the Corps pursuant to the above. GDOT shall use its best effort to initiate the implementation of remedial actions at the first appropriate opportunity (for example supplemental plantings will be completed at first appropriate season).

    In the event GDOT determines that remedial action may be necessary to achieve the required performance criteria at a Bank Site, it shall provide notice of such proposed remedial action to the Corps for distribution to all members of the Bank Site MBRT. No remedial actions shall be taken by GDOT without risk, prior to the concurrence of the Corps, in consultation with the Bank Site MBRT. Once a need for "major" remedial action is identified by GDOT and the Bank Site MBRT notified the Bank Site MBRT shall use its best efforts to respond within 60 days on the plans proposed for remedial actions. "Major" shall be defined as a remedial action that could alter the goals of the Bank Site or require Bank Site MBRT concurrence on the affect the action may have on credits released to date. Should GDOT identify "minor" actions required that would not alter goals set forth in the Site Specific Mitigation Plan (herbicide treatment, invasive species removal, supplemental plantings, etc.), GDOT will conduct the work as needed and notify the Bank Site MBRT of the need for the action or after the action is completed. It is understood that "emergency" remedial actions will be responded to with "urgency" by the parties to this agreement.

    GDOT may determine that adaptive management may be appropriate for individual Bank Sites. GDOT will notify an MBRT on a case-by-case basis of this potential need. GDOT and MBRT will discuss the merits of a proposal for adaptive management at the next available meeting of the agencies.

IV. Responsibilities of the MBRTs

  1. Oversight: In coordination with the Corps, the agencies represented on the MBRTs agree to provide appropriate oversight in carrying out the provisions of this GUMBI.
  2. Best Efforts: In coordination with the Corps, the agencies represented on the MBRTs agree to use their best efforts to review and provide comments on all Pre-application Prospectuses, Site Specific Mitigation Plans, monitoring reports, success criteria, credit review reports, and remedial action plans for the Umbrella Bank and Bank Sites within 60 days.
  3. Compliance Inspections: For each Bank Site, the Corps, in coordination with the Bank Site MBRTs and GDOT (as appropriate), shall conduct compliance inspections to verify credits available in the Bank Site and recommend corrective measures (if any) within 60 days of inspection until the terms and conditions of the Site Specific Mitigation Plan/GUMBI Addendum have been determined to be fully satisfied or until all credits have been debited, whichever is later.

V. Miscellaneous

  1. Validity: This GUMBI will become valid on the date of the last signatory's signature. This GUMBI may be amended or modified with the written approval of all signatory parties.
  2. Dispute Resolution: Should GDOT and MBRTs disagree on the need for remediation or the methods, or have other disputes pertaining to this GUMBI, the parties agree to resolve such disputes as follows: (1) reach consensus per the Guidance or (2) avail itself to other remedies that become appropriate in the future through published Corps guidelines (as an example, should the Corps permit appeals process allow for mitigation banks to use this process in the future).
  3. Participation Termination: Any agency participant may terminate its participation in the Umbrella MBRT with notice in writing, through the Corps to all other parties to this agreement. Termination shall be effective fourteen (14) days from placing said notices in the United States mail. Member withdrawal shall not affect any prior issuance of credits and all remaining parties shall continue to implement and enforce the terms of this GUMBI and GUMBI Addendums and Site Specific Mitigation Plans associated with the Bank Site. Except for termination as described above, this agreement may be modified only with the written agreement, through the Corps, of all remaining parties to this agreement at the time of the modification.
  4. Force Majeure/Delays: Any delay or failure of GDOT 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 GDOT'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 GDOT is affected by any such event, GDOT shall give written notice thereof to the Umbrella MBRT as soon as is reasonably practicable. If such event affects a Bank Site and occurs before the final availability of all credits, GDOT shall take remedial action (Section III. 3. G. of this agreement) to restore the property to its reasonably appropriate and expected condition prior to such issuance of further credit, in a manner sufficient to provide adequate mitigation to cover credits that were issued 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 GDOT only to the extent necessary and appropriate, as determined by the Umbrella MBRT. Such actions are only necessary if the Bank Site has not received official notification from the Corps that the Bank Site has been quot;closed-outquot; (Appendix C).
  5. Third Party Beneficiary: 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.
  6. Entire Agreement: This GUMBI constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements or undertakings, excepting Mitigation Banking Instruments or other permit actions currently in place which GDOT/GDOT has signed and is implementing the Site Specific Mitigation Plan or Mitigation Plans for pursuant to Section 404 permits that have been approved to date, or future mitigation projects not presented by GDOT in the form of a Prospectus (and subsequent Site Specific Mitigation Plan) to the MBRT.
  7. Specific Language Controlling: In the event any one or more of the provisions contained in this GUMBI are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceablility will not affect any other provisions hereof, and this GUMBI shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein.
  8. Governing Laws: This GUMBI shall be governed by and construed in accordance with the laws of the State of Georgia and the United States of America as appropriate.
  9. One Agreement: This GUMBI 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/agreement.
  10. Binding Terms and Conditions: The terms and conditions of this GUMBI shall be binding upon, and inure to the benefit of the parties hereto and their respective successors/assigns.
  11. Amendments: This GUMBI can be amended in the future to reflect changes in regulatory programs, GDOT needs, or MBRT requirements. These amendments must be mutually agreed upon by GDOT and Umbrella MBRT. Amendments to the GUMBI must follow the guidelines for amending the GUMBI attached as Appendix A of this document.
  12. Assigns: This agreement can be assigned to another party subject to approval by the Savannah District Corps, in consultation with Office of Counsel, by the Umbrella MBRT and GDOT. Any future assignee of the Umbrella Bank or a Bank Site will be subject to the terms and conditions of this agreement and shall be subject to the Guidance. Assignee will be responsible for adherence to all aspects of this agreement and the Guidance.
  13. Re-evaluation: Due to the anticipated longevity of the Umbrella Bank, GDOT and Umbrella MBRT agree to re-evaluate this GUMBI and its effectiveness in meeting the parties' mutual objective of streamlining the GDOT mitigation process and developing environmentally favorable mitigation Bank Sites. The re-evaluation will be conducted after the process of preparing GUMBI Addendums/Site Specific Mitigation Plans on several Bank Sites has been completed. Either party can request the re-evaluation to be initiated, but both parties must agree to the appropriateness of the timing of the re-evaluation.

    Amendments to the GUMBI must be agreed to by the parties to this agreement. Should the GUMBI be amended or terminated after the re-evaluation, GDOT and MBRT will continue to be responsible for honoring commitments made to date with respect to the Umbrella Bank and any approved on-going Bank Sites (GUMBI Addendums/Site Specific Mitigation Plans).

    Site Specific Mitigation Plans and GUMBI Addendums will conform to the agency standards or guidelines in place at the time of submission of individual Bank Site documents. This also applies to additional phases or expansions to previously approved Bank Sites.
  14. Communications/Contacts: All notices and required reports, except as otherwise noted in the GUMBI, shall be sent to each of the parties (via the Points of Contact) at their respective addresses, provided below.
    Sponsor:
    Georgia Department of Transportation
    State Environmental and Location Engineer
    c/o Ms. Susan Knudson (POCs)
    Office of Environment Location
    3993 Aviation Circle
    Atlanta, Georgia 30336-1593
    (404) 699 - 4400
    susanknudson@dot.state.ga.us

    Corps:
    Branch Chief Regulatory Branch
    U.S. Army Corps of Engineers
    C/0 Ms. Mary Moffat/Ms. Mary Dill (POCs)
    Savannah District Regulatory Division
    100 West Oglethorpe Street
    Savannah, Georgia 31401
    (919-652-5349
    Mary.c.moffat@sas02.usace.army.mil
    Mary.e.dils@sas02.usace.army.mil

    EPA:
    Wetlands Regulatory Unit - Region IV
    U.S. Environmental Protection Agency
    C/o Mr. Bob Lord
    61 Forsyth Street, SW
    Atlanta, Georgia 30303-3104
    (404) 562-9408
    lord.bob@epamail.epa.gov

    FWS:
    Field Supervisor
    U.S. Fish and Wildlife Service
    C/o Ms. Kathy Chapman
    Georgia Ecological Services
    247 South Milledge Avenue
    Athens, Georgia 30605
    (912) 265-9663
    kathy_chapman@fws.gov

    NMFS:
    Habitat Conservation District
    National Marine Fisheries Service
    C/O Mr. David Rackley
    219 Fort Johnson Road
    Charleston, South Carolina 29412-9110

    GDNR-EPD:
    401 Certification/Permitting Officer
    Water Protection Branch
    C/o Mr. Keith Parsons
    Georgia Department of Natural Resources - Environmental Protection Division
    4220 International Parkway
    Atlanta, Georgia 30354
    (404) 675-1631
    keith_parsons@mail.dnr.state.ga.us

    FHWA:
    Division Administrator
    Georgia Division
    Federal Highways Administration
    C/o David Grachen Suite 17, T100
    61 Forsyth Street SW
    Atlanta, GA 30303-3104
    David.grachen@fhwa.dot.gov

IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled "Agreement To Establish The GDOT State-Wide Umbrella Mitigation Bank In Georgia":

Sponsor: Georgia Department of Transportation


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: ___________________

Georgia Department of Natural Resources, Environmental Protection Division:


By: _________________________ Date: ___________________

Federal Highway Administration, Georgia Division


By: _________________________ Date: ___________________

List of Appendices
Appendix A: GUMBI Amendments/Addendums Procedures
Appendix B: Sample Declaration of Covenants and Restrictions and Easement
Appendix C: Bank Site Procedures

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