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Environment

Appendix A


GDOT State-Wide Umbrella Mitigation Bank
Umbrella Mitigation Banking Instrument
Amendment/Addendum Procedures
June 30, 2003

To facilitate the processing of changes to GDOT Umbrella Mitigation Banking Instrument (GUMBI), procedures to be followed by GDOT and Umbrella Mitigation Banking Review Team (Umbrella MBRT) have been developed as part of the agreement. These procedures are incorporated by reference to the GDOT State-Wide Umbrella Mitigation Bank GUMBI. Amendments to this Appendix will be subject to the procedures contained in the Appendix.

Paragraph A: Amendment to GUMBI

If after execution of the GUMBI, any signature party of the GUMBI desires a change to any section, language, condition, or process set out in the GUMBI, that signature party will submit a written request for the said change to the Corps. This written request for a Proposed GUMBI Amendment will detail the proposed change by documenting the rationale behind the proposed change, the proposed language, and the forecasted benefits/implications of making the proposed change. The Corps will review the request for a Proposed GUMBI Amendment and will make its best effort to determine the merit of the proposed change within 60 days from receipt. It will be the sole discretion of the Corps whether the proposed change has sufficient merit to open discussion on the Proposed GUMBI Amendment with the remaining signature parties.

  1. If the Corps determines that the Proposed GUMBI Amendment lacks sufficient merit to warrant a change in the GUMBI, the Corps will make its best effort to send a letter to the signature party requesting the change within 60 days of making that determination. If the signature party requesting the said change does not accept the Corps's determination, then that signature party may initiate dispute resolution and include all of the signature parties in subsequent negotiations. Any dispute resolution will follow the procedures outlined in Section V.B. of the GUMBI.
  2. If the Corps determines that the Proposed GUMBI Amendment exhibits sufficient merit to warrant a change in the GUMBI, the Corps will send a letter identifying this decision to all of the signature parties and will include the written documents from the signature party requesting the Proposed GUMBI Amendment. At the next regularly scheduled meeting of the signature parties, this Proposed GUMBI Amendment will be presented by the signature party requesting the change, followed by open discussion between the parties.
    1. If there is no contest of this change by any signature party, then the proposed language change will be drafted by the requesting party and forwarded to each signature party's legal counsel for review and comment. Upon mutual agreement of the new language, the necessary legal documents will be drafted by the Corps or GDOT's legal counsel requesting the change and executed by all original GUMBI signature parties in a timely manner. The accepted change will only apply to Bank Sites submitted by GDOT after the effective date of the approved GUMBI Amendment, unless otherwise agreed to by all signature parties.
    2. If the signature parties do not agree on the validity of the Proposed GUMBI Amendment, and as such, all signature parties will not execute the proposed change, the proposed change will not be considered an amendment to the GUMBI. In this instance, the signature party requesting the Proposed GUMBI Amendment will either modify the proposed language, withdraw its request, or enter into discussions with all of the signature parties following the procedures outlined in Section V.B., Dispute Resolution. If the signature parties come to a mutual agreement, then the Proposed GUMBI Amendment execution will follow Paragraph A (b) (1) outlined above. If the signature parties do not come to a mutual agreement, then the proposed GUMBI Amendment will be withdrawn from consideration and not eligible for re-submittal for a period of one year from the withdrawal date, unless other legal action or published regulatory guideline necessitates otherwise.
  3. If the Proposed GUMBI Amendment includes the termination of the entire GUMBI, then the discussion and decision process will follow Paragraph A sections (a) and (b) with the following additions.
    1. The signature party requesting the GUMBI termination must present its rationale in an open forum where all of the signature parties have been provided a 60-day notification of the presentation.
    2. There must be an open discussion of the proposal to terminate the GUMBI between all of the signature parties.
    3. Each signatory shall provide a statement assessing the affects of said termination.
    4. Any proposed language to terminate the GUMBI must be initially drafted by the signature party requesting the termination.
    5. All signature parties must be in agreement to terminate the GUMBI.
    6. A phase-out or termination plan, agreed to by all parties, must be established prior to any such GUMBI termination.
    7. Any Bank Sites submitted to the Umbrella MBRT and subject to an approved GUMBI Addendum/Site Specific Mitigation Plan must be allowed to be completed under the terms of the GUMBI post-termination. This clause applies to Bank Sites in any and all stages of development from proposal through observation.

Paragraph B: Establishment of an GUMBI Addendum

For each Bank Site, a separate GUMBI Addendum will be created. Each GUMBI Addendum will be a tailored and focused document to describe site-specific expectations and account for any individual site conditions that may modify the GUMBI and any GUMBI Amendment language, terms and conditions and effective for the individual Bank Site in question. The GUMBI Addendum is not a full-scale GUMBI for each site, but a tool to identify case-by-case conditions and changes to the GUMBI and its amendments necessary for an individual Bank Site.

  1. Each GUMBI Addendum will include, but not be limited to, the site-specific information as follows:
    1. Scope of Efforts
    2. Credit Release Schedule (if different than the standard schedules in the GUMBI)
    3. Credit Calculation and Ratios (if different than the standards in the GUMBI)
    4. Agency Assignments for the MBRT
  2. Each GUMBI Addendum may include, but not be limited to, site-specific modifications to the original GUMBI and any GUMBI Amendments adopted at the time of executing the GUMBI Addendum, types of the following:
    1. Changes to language, terms, conditions, or other agreements previously agreed to by the required signature parties that are justified on a site-specific basis. These changes could be more or less restrictive than conditions existing in the GUMBI or GUMBI Amendments.
  3. The approval process for an GUMBI Addendum will be as follows:
    1. Each GUMBI Addendum will be submitted by GDOT to the Corps with the proposed language in a form agreeable to the signature parties. Included as Attachment 1 is a standard format with minimum required language to be used for an GUMBI Addendum. (Attachment 1 will be developed after GUMBI language is finalized).
    2. The Corps will review and will take its best efforts to make comments directly to GDOT within 60 days of receipt. Upon receipt of a response to Corps comments from GDOT, the Corps will make its best efforts to distribute the Proposed GUMBI Addendum to the Bank Site MBRT established for that Bank Site by the Corps within 60 days of receipt.
      1. At the Corps discretion, the Corps could disseminate the Proposed GUMBI Addendum to the Bank Site MBRT without providing initial comments to GDOT.
    3. Each of the Site-Specific MBRT members will make their best efforts to review and provide comments to the Corps within 60 days of receipt.
    4. If the Bank Site MBRT comments received do not require further revisions to the Proposed GUMBI Addendum, and GDOT adequately addresses the comments in a Revised Proposed GUMBI Addendum, all in the opinion of the Corps, then the Revised Proposed GUMBI Addendum will be prepared for signatures and executed and become effective as an GUMBI Addendum.
    5. If, in the opinion of the Corps, the Bank Site MBRT comments require discussion between the GUMBI signature parties, then the Proposed GUMBI Addendum will be discussed at a special meeting of the MBRT (or other regularly scheduled meeting of the parties, whichever is first) organized and lead by the Corps.
      1. If a consensus amongst the Bank Site MBRT members can be reached through open discussion, then the Proposed GUMBI Addendum will be finalized following Paragraph D (c) (4).
      2. If a consensus amongst the Bank Site MBRT members can not be reached, then GDOT will need to either withdraw its Proposed GUMBI Addendum or proceed with dispute resolution per GUMBI Section V.B..
    6. All GUMBI Addendums will terminate upon termination of the GUMBI. A Bank Site GUMBI Addendum will otherwise terminate upon receipt of a "close-out" letter (Appendix C of the GUMBI).

The procedures in this Appendix will be re-evaluated by GDOT and MBRT agencies after several Bank Sites have been processed (as described above in Paragraph B) to determine if amendments are needed to meet the intent of the agreement.

Paragraph C: Changes to an GUMBI Addendum

If after an GUMBI Addendum is accepted by the signature parties in accordance with the GUMBI, one of the signature parties requests a change to an GUMBI Addendum, the change will be considered in the following manner.

  1. The signature party requesting the Proposed GUMBI Addendum Change will submit, in writing, the rationale, justification, implications, and benefits of the proposed change. Examples of a proposed change may be different site conditions, technological advancements, or regulatory changes.
  2. The Corps will review and determine whether the Proposed GUMBI Addendum Change warrants review by the GUMBI signature parties.
    1. If the Corps determines that the Proposed GUMBI Addendum Change is not valid, then the Corps will make its best effort to respond to the requesting party in writing within 60 days. If the requesting party does not agree with the Corps's decision, the requesting party may enter into dispute resolution following Section V.B. of the GUMBI.
    2. If the Corps determines that the Proposed GUMBI Addendum Change is warranted, then the Corps will forward the requested change and all supporting documentation to each of the signature parties. The requested change will be discussed in an open discussion at the next regularly scheduled meeting of all of the signature parties.
      1. If there is no contest to the Proposed GUMBI Addendum Change then the GUMBI Addendum will be modified to reflect the mutually agreed-upon language by GDOT.
      2. If at least the Corps, GDOT, and one other signature party agree to the proposed language in the Proposed GUMBI Addendum Change, then the GUMBI Addendum will be modified by GDOT to reflect the proposed language.
      3. If at least the Corps, GDOT, and one other signature party do not agree on the validity of the Proposed GUMBI Addendum Change, the proposed change will not be considered an amendment to the GUMBI. In this instance, the signature party requesting the Proposed GUMBI Addendum Change will either modify the proposed language, withdraw its request, or enter into discussions with all of the signature parties following the procedures outlined in Section V.B., Dispute Resolution. If the signature parties come to a mutual agreement, then Proposed GUMBI Addendum Change execution will follow Paragraph E (b) (2) (i) outlined above. If the signature parties do not come to a mutual agreement, then the Proposed GUMBI Addendum Change will be withdrawn from consideration and not eligible for reconsideration at the Bank Site in question.

Paragraph D: Scheduled Re-Evaluations of GUMBI

At the conclusion of the following milestones, the effectiveness of the GUMBI and the resulting Bank Site evaluation procedures (Appendix A and C to the GUMBI) will be evaluated by all of the signature parties. The effectiveness, timeliness of reviews, and cost of implementing/administering the GUMBI; ability to incorporate technology advancements and regulatory changes; and any other aspects deemed appropriate by the signature parties will be the subjects evaluated. Any proposed changes will be considered in accordance with Paragraph A and,

  1. After the approval of two separate GUMBI Addendums [anticipated 1-2 years from GUMBI execution].
  2. After the completion of two separate wetland/stream restoration or enhancement actions (i.e., construction activities) at two separate Bank Sites [anticipated 2-3 years from GUMBI execution].
  3. After two separate restoration or enhancement actions at two separate Bank Sites meet final success criteria [anticipated 5 -7+ years from GUMBI execution].

Paragraph E: GUMBI Termination and Renewal

This GUMBI shall remain in full force and effect until terminated through the conditions of Paragraph A (c). This GUMBI can be renewed if the original signature parties are in agreement concerning the need for renewal. Signatures must be obtained from all original signature parties to fully execute the renewal.

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