INTERAGENCY AGREEMENT for Brackish Marsh Restoration Near Chef Menteur Pass, Orleans Parish, Louisiana

MITIGATION BANKING INSTRUMENT

CHEF MENTEUR PASS MITIGATION BANK

Brackish Marsh Restoration Project

Lake Borgne Area, Orleans Parish, Louisiana

Sponsored By:

Chef Menteur Credit Co, LLC INTERAGENCY AGREEMENT For Brackish Marsh Restoration near Chef Menteur Pass, Orleans Parish, Louisiana

I. PURPOSE OF BANKING INSTRUMENT ...... 3 II. LOCATION AND OWNERSHIP OF PARCEL ...... 3 III. GOALS AND OBJECTIVES ...... 4 A. Baseline Conditions ...... 5 1. Land Use ...... 5 2. Geology and Soils ...... 5 3. Wetland Description ...... 6 B. Wetland Functions to be Enhanced/Restored ...... 6 C. Restoration Plan ...... 7 IV. Scope of Responsibilities ...... 7 A. Sponsor ...... 7 B. Mitigation Bank Review Team ...... 7 C. Holder of Conservation Servitude ...... 7 D. Long-Term Steward (Optional) ...... 8 V. PERFORMANCE STANDARDS ...... 8 A. Initial Success Criteria ...... 8 B. Year Two Success Criteria ...... 8 C. Year Five Success Criteria ...... 9 VI. REPORTING PROTOCOLS AND MONITORING PLAN ...... 9 A. As-Built Reports ...... 9 B. Monitoring Provisions ...... 9 VII. CONTINGENCY AND REMEDIAL ACTIONS AND RESPONSIBILITIES ...... 11 A. Fill Material Elevations and Area ...... 11 B. Vegetative Plantings ...... 12 C. Force Majeure ...... 12 VIII. INSPECTION BY IRT AND HOLDER...... 13 IX. FINANCIAL ASSURANCES ...... 13 X. BANK USE ...... 14 A. Service Area ...... 14 B. Work Producing Credits...... 14 C. Assessment Methodology ...... 14 D. Projects Eligible to Use the Bank ...... 15 E. Requirements Prior to Release of Credits ...... 16 F. Schedule of Credit Availability ...... 17 XI. LONG-TERM MAINTENANCE AND PROTECTION ...... 18 XII. ADDENDA TO THE MITIGATION BANK ...... 20 XIII. MODIFICATION OF THIS BANKING INSTRUMENT ...... 20 XIV. TRANSFER OF OPERATION AND/OR OWNERSHIP ...... 21 XV. BANK LIFE ...... 22 XVI. OTHER PROVISIONS ...... 22

ATTACHMENTS:

Attachment A: Federal and State Authorities Attachment B: Maps Attachment C: Site Restoration Plan Attachment D: Monitoring Report Form Attachment E: Credit Calculations MVN MCM Calculations: Wetland Value Assessment Attachment F: Transfer Agreement Letter

ii INTERAGENCY AGREEMENT For Brackish Marsh Restoration near Chef Menteur Pass, Orleans Parish, Louisiana

I. PURPOSE OF BANKING INSTRUMENT

This Banking Instrument, consistent with federal and state authorities (Attachment A), is an agreement made and entered into by Chef Menteur Credit Co, LLC (Sponsor) and the Interagency Review Team (IRT) composed of the U.S. Army Corps of Engineers New Orleans District (CEMVN), Louisiana Department of Natural Resources, Office of Coastal Management (OCM), the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS), the National Oceanographic and Atmospheric Administration and the Louisiana Department of Wildlife and Fisheries (LDWF). The purpose of this Banking Instrument is to establish guidelines and responsibilities for the establishment, use, operation, protection, monitoring and maintenance of the CHEF MENTEUR PASS MITIGATION BANK (Bank). The construction and restoration of wetland habitats on the Bank will be used for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands, that result from activities authorized under Section 404 of the Clean Water Act (Section 404) and Section 10 of the Rivers and Harbors Act of 1899 (Section 10) and/or LA. R.S. 49:214.21-214.41 and provided such activities have met all applicable requirements and are authorized by the appropriate authority. This banking instrument also defines performance standards, monitoring protocol and remedial actions, as described herein, to ensure the Bank success.

II. LOCATION AND OWNERSHIP OF PARCEL

The Bank is located in Orleans Parish, Township 11 South, Range 14 East. The mitigation sites fall within the landmass that is bound by the Chef Menteur Pass on the west side, the Gulf Intracoastal Waterway on the north side, Lake Borgne on the south side, and the Rigolets to the east (Attachment B.1.). Specifically it is described as:

A certain parcel or tract of land, located in Sections 26, 35 and 36, Township 11 South, Range 14 East, Orleans Parish, Louisiana, being more particularly described as the south half of Section 26, all of Section 35 and the west half of Section 36. (Property)

The EIP Chef Menteur, LLC is the fee owner of the Property. The Sponsor will obtain and provide a tax, title and mortgage certificate, or title binder, from an approved American Land Title Association title company that demonstrates that there are no restrictions or encumbrances that will affect development of the Property as planned in this Banking Instrument, nor conflict with the environmental protections to be created by placing a conservation servitude on said Property that will burden the property for a period of 20 years. To avoid the risk of possession by a financial institution, the Property cannot be identified as collateral in other business transactions.

3 III. GOALS AND OBJECTIVES

The goal of the Sponsor is to establish and protect a brackish marsh wetland community as a species diverse, sustainable ecosystem by restoring unique functions, values, and services. Work required to accomplish these goals include the dredging and deposition of material to an elevation capable of supporting an intertidal brackish marsh and with tidal creeks and ponds. The proposed work would increase the habitat value for those fishery and wildlife resources utilizing these habitats. The restoration and protection associated with this project will further enhance the longevity of this landmass.

Shoreline erosion and wetland loss are serious concerns in and around Lake Pontchartrain. The landfall of hurricane Katrina in southeast Louisiana destroyed thousands of acres of marsh and other coastal habitats in the Lake Pontchartrain basin. Along the shorelines of Lake Borgne the storm created breaches between the lake and interior marshes and in some cases removed large expanses of wetlands. Loss of wetlands in the Alligator Bend area has created more than 1,000 acres of open water in a complex that formerly supported relatively stable brackish marshes. Post-storm aerial photographs show the most significant losses occurred along the flanks of Bayou Platte (Attachment B.2-4). The current landscape configuration has left a large area of open water between eroding shorelines on Lake Borgne and along the GIWW.

This landmass acts as a crucial land bridge separating the Lake Pontchartrain and Lake Borgne basins while protecting the watershed and the infrastructure of lower Orleans Parish. A critical problem of the area is the potential loss of the Borgne land bridge where wetland soils are especially vulnerable to erosion. Since 1932, approximately 24 percent of the Borgne Land Bridge has been lost to estuarine processes such as severe shoreline retreat and rapid tidal fluctuations, and the loss rate is increasing. This land bridge prevents estuarine processes, such as increased salinities and tidal scour, from pushing further into the middle and upper basins. If these buffers are not preserved, the land loss rates around Lake Pontchartrain will increase dramatically.

Another critical problem is that several marshes in the basin are vulnerable to rapid loss if adequate protection is not provided soon. If nothing is done, and marsh loss continues at the pace set from 1974-1990, it is estimated that another 62,400 acres, or 23 percent of the basin's existing marshes, would be lost by the year 20401. If no action were taken, 69,400 acres of swamp, 32 percent of the basin's existing swamp, would be converted to marsh or open water by 2040. This does not include the possible loss of the upper basin swamps. As the land bridges are lost, estuarine processes would push farther into the basin and erosion rates would increase. The middle basin would be a lake surrounded by shallow ponds where marshes once existed.

The lower basin marshes would be a tattered remnant of what exists today. Fewer fish and shellfish would be available for commercial or recreational fishermen. Vast marshes for wintering ducks would no longer exist. The emerging ecotourism industry

1 Coastal Wetlands Conservation Restoration Plan 1993

4 would be hindered, and storm surge protection would be lost as lakes and bays inched closer to levees and roads.

It is the intent of the Sponsor to sell those wetland credits generated from the establishment and protection efforts to parties needing compensatory mitigation to satisfy permit requirements. Through contractual agreement with individual permit recipients, the Sponsor will, for a fee to be paid by permittees, commit to implementing the mitigation specified in Department of the Army (DA) permits and/or Coastal Use Permits (CUP) and Authorizations incur responsibility for the long-term maintenance, management, protection, and overall success of the mitigation.

A. Baseline Conditions:

The Bank contains a single cell, approximately 60.6 acres in size predominately shallow open water. The water bottoms are vegetated with sporadic occurrence of predominantly Eurasian milfoil. Additional open water areas are located within the + 25,000 acre project area that could be used for marsh restoration if dredged material can be obtained to fill them.

1. Land Use:

Wetlands within the project area are classified as wildlife and fisheries habitat. The area is used primarily for hunting, fishing and trapping. The proposed project would not change land uses within the project area. The mitigation areas would be maintained as habitat for a minimum of 20 years and conservation servitude would protect the Property during that period. Project area marshes and water bodies would continue to provide habitat for fish and wildlife resources.

2. Geology and Soils:

The Lake Pontchartrain Basin is a 12,170-km2 (4,700-mi2) watershed in southeastern Louisiana, stretching from the State of Mississippi on the north and east to the Mississippi River on the west and south, and to Breton Sound at the Gulf of Mexico. The Pontchartrain Basin is about 200 km along strike and 75 km along dip with modern lakes (Maurepas, Pontchartrain, and Borgne) covering the southern portion of the basin.

The Pontchartrain Basin is an abandoned delta. During the late Wisconsin lowstand, the region was entrenched by rivers. A buried incised channel of the ancestral Mississippi River, identified from seismic profiles, underlies the southern margin of Lake Pontchartrain. The incision is three to four km across, was cut to a depth of 40 m, and can be traced from west to east into Lake Pontchartrain. The Pontchartrain Basin has a complex depositional history, a result of sedimentary processes controlled by sea-level change.

Lake Pontchartrain and its adjacent lakes form one of the largest estuaries in the United States. The three large lakes, Maurepas, Pontchartrain, and Borgne cover 55

5 percent of the basin. Lakes Maurepas and Pontchartrain are separated by land bridges of cypress swamp and fresh/intermediate marsh. A brackish marsh land bridge separates Lake Pontchartrain from Lake Borgne. The basin contains 483,390 acres of wetlands, consisting of nearly 38,500 acres of fresh marsh, 28,600 acres of intermediate marsh, 116,800 acres of brackish marsh, 83,900 acres of saline marsh, and 215,600 acres of cypress swamp. Nearly 1.5 million people (one-third of the entire population of Louisiana) live in the 14 parishes of the Lake Pontchartrain Basin.

Since 1932, more than 66,000 acres of marsh have converted to water in the Pontchartrain Basin, over 22 percent of the marsh that existed in 1932. The primary causes of wetland loss in the basin are the interrelated effects of human activities and the estuarine processes that began to predominate many hundreds of years ago, as the delta was abandoned.

Borings in the vicinity indicate very soft peat and organic clay deposits to significant depths. These type deposits will experience large settlements and lateral deformations in response to loads. Secondary movements can be expected to be as large, or larger than, primary movement. Fills on this foundation can be expected to lose a majority of their height within several months, continuing over a few years.

3. Wetland Description:

The tidal marshes along Chef Menteur Pass are brackish and contain primarily smooth cordgrass (Spartina alterniflora) and marshhay cordgrass (Spartina patens). Various species of wading birds (e.g., great egret, great blue heron, and roseate spoonbill), furbearers (e.g., muskrat, nutria, and raccoon), as well as other mammals (e.g., swamp rabbit) use habitats in the proposed project area. Estuarine and marine fishery and wildlife species use the tidal channels and tidal ponds as nursery grounds. The endangered West Indian manatee (Trichechus manatus) and the threatened Gulf sturgeon (Acipenser oxyrhynchus desotoi) are also known to occasionally use habitats in the proposed project area vicinity. The areas designated for fill currently contain exotic submerged aquatic plants, such as Eurasian milfoil. Filling these areas will help establish a more continuous marsh landscape, slow erosion and provide habitat for mammals and birds. Created marsh will help dampen storm surge in the area and provide protection inland from the site. Subsidence in the area is roughly 1.5 cm per year. Without sediment additions to the landscape, this area will continue to degrade. Soils are approximately 35% mineral and 65% organic. Keeping a healthy plant community is essential to the continued survival of this marsh. Placement of earthen plug along the channel should not impede water movement in and out of the surrounding marsh. There are sufficient tidal channels in the landscape to maintain tidal water fluctuations.

B. Wetland Functions to be Enhanced/Restored:

By filling open water with dredged material and subsequently planting the spoil material the Sponsor expects to restore emergent vegetation that would serve as habitat for fishery and wildlife resources. Additionally, the vegetated wetlands will provide

6 erosion protection to adjacent wetlands, enhance water quality and increase detrital export.

C. Restoration Plan:

In accordance with this Banking Instrument, the Sponsor will establish and maintain aquatic habitats in compliance with the provisions of this Banking Instrument, and shall then maintain each tract of the Bank in such condition for at least 20 years. The Sponsor proposes to reestablish emergent brackish marsh. The establishment and maintenance of aquatic habitats will require that the Sponsor perform the work outlined in Attachment C – Site Restoration Plan.

IV. Scope of Responsibilities

A. Sponsor

The Sponsor agrees to perform all necessary work to enhance and restore wetland functions and maintain wetland habitats in accordance with the provisions of this Banking Instrument. The Sponsor will be responsible for maintaining accounting records and monitoring the Bank for success and providing this information to IRT in reports documenting bank usage and the results of monitoring. The Sponsor will also conduct remedial action, if warranted.

B. Interagency Review Team

Signing of the banking agreement does not constitute a binding agreement of action on the part of any resource agency beyond its customary regulatory purview. The agencies represented on the IRT do agree to provide appropriate oversight in carrying out provisions of this Banking Instrument subject to the availability of staff and funds. When requested by the CEMVN, members of the IRT will review and provide comments on all project plans, proposed additions of land to the Bank, annual monitoring reports, credit review reports, contingency plans, and necessary permits for the Bank. The IRT will conduct compliance inspections as needed and recommend corrective measures (if any) to the Sponsor, until the terms and conditions of the Banking Instrument have been determined to be fully satisfied or until all credits have been sold, whichever is later.

C. Holder of Conservation Servitude

The Holder shall hold and enforce the conservation servitude placed on those lands within the Bank subject to an executed and recorded conservation servitude so that restored wetlands are protected in perpetuity. The Holder shall become responsible for the Sponsor’s obligations under this agreement should default of the bank occur. The Holder may also act as the Long-Term Steward should the Sponsor make arrangements for the Holder to act in this capacity.

7 D. Long-Term Steward (Optional)

Should the Sponsor designate one, the Long-Term Steward2 shall assume the responsibilities of the Sponsor and agree to perform the long-term maintenance and management responsibilities in accordance with the provisions in this Banking Instrument.

V. PERFORMANCE STANDARDS

In order for the Bank to be considered acceptable for mitigating wetland impacts associated with DA/CUP permits, the site vegetation, soils and hydrology shall be restored such that the site meets wetland criteria as described in the Corps 1987 Wetlands Delineation Manual and applicable Regional Supplements. Additionally, the following criteria are applicable:

A. Initial Success Criteria

Final placement of dredged material completed such that the average elevation across the site is at or above the initial construction elevation and a minimum of 80% of the site is within the initial construction elevation range. The initial construction elevation is defined as the elevation reached immediately following the final deposition of dredged material onto the site. The IRT will review the applicant’s proposed initial construction elevation, but it will be the applicant’s responsibility to select the initial construction elevation based on geotechnical analysis of the sediments at the Bank site, including the dredge material locations, in order to achieve the desired target marsh elevation.. The initial construction elevation is defined for each phase, or separate cells, within Attachment C – Site Restoration Plan.

B. Interim Success Criteria

1. After at least two full years following final placement of dredged material, the average elevation across the site is at or above the target marsh elevation and a minimum of no less than 90% of the site is within the target marsh elevation range. The target marsh elevation is defined as that elevation of the existing surrounding marsh which exhibits optimal vegetative coverage (greater than 80%).

2. At least 80% of the dredge material disposal area is vegetated.

3. Containment dikes breached and the site is tidally connected.

2 The landowner or easement holder of the Bank lands charged with long-term maintenance and management responsibility. A Long-Term Steward may be designated once Success Criteria monitoring (typically monitoring for 10 years following completion of grading) has been completed. In some cases, the Sponsor may also be the Long-Term Steward.

8 4. At least 80% of the vegetative cover are species predominately FAC or wetter, as verified by monitoring reports and verified by an interagency team if necessary.

C. Long Term Success Criteria

1. Five years after final placement of dredged material, at least 75% of the site remains at or above the target marsh elevation with the average elevation across the entire site within the target marsh elevation range.

2. Demonstrated use of the site by estuarine-dependent marine fishery species (not just forage species) as shown by sampling on a quarterly basis, during the fourth and fifth year following final placement of dredged material, using cast nets and/or seines in open water within the project area.

3. Observed use of created marsh by wildlife species typically found in natural marsh habitats of similar salinity regime.

VI. REPORTING PROTOCOLS AND MONITORING PLAN

A. As-Built Reports

The Sponsor agrees to submit an As-Built Report to the CEMVN/OCM for each Phase of the Bank within one month following completion of the work described in Attachment C - Site Restoration Plan for each dredged material disposal site. The As- Built Report shall contain a survey providing the areal extent of the filled area and the initial construction elevation of the site. A licensed surveyor shall certify the survey.

B. Monitoring Reports and Provisions

Upon achievement of the initial success criteria documented in the as-built report, the Sponsor shall document the results of monitoring in reports submitted to the CEMVN and OCM and copies to each member of the IRT at 2, 5, 10, and 20 years following final placement of dredged material. The Sponsor agrees to perform all necessary work to monitor the Bank to demonstrate compliance with the success criteria established in this Banking Instrument. The monitoring program shall follow and report on the guidelines established below:

1. Visual Description: Visual descriptions shall be provided with each monitoring report by one of the following means:

a. Located adjacent to each vegetation plot and hydrology monitoring station [permanent markers shall be established to ensure that the same locations (and view directions) are monitored in each monitoring period], or

9 b. One color aerial photograph (8" x 10" or larger) depicting the entire site. An aerial photograph should be taken once the site has been constructed, stabilized and planted (preferably in the 3rd or 5th year following completion of initial work).

2. Hydrology

a. Tidal influence shall be discussed using indicators of high and low tides.

b. The condition of any tidal channels and ponds noting general flow characteristics, noting excessive scouring and/or silting in of channels.

3. Vegetation

a. The Sponsor shall establish linear survey plots at the time of planting, and shall conduct a survey of each planted tract at or near the end of the first growing season following planting of that tract. Surveys shall be conducted in accordance with an accepted academic or industrial sampling methodology, and shall account for at least 2 % of the total number of plugs planted on the tract. The Sponsor shall also perform a cursory examination of the entire planted tract to determine if overall survival is adequate.

b. The Sponsor shall provide a written report (Attachment D) to the CEMVN and OCM indicating the number and percentage of surviving plugs. In addition to plant material survivorship, the report shall describe the vegetative communities developing within and the overall condition of the entire Bank by determining:

1) Dominant vegetation species;

2) A coverage assessment;

3) The number and species rated FAC or wetter (excluding FAC-) growing in wetlands (total and #/acre);

4) The percentage of dominant species FAC or wetter (excluding FAC- ); and

5) An invasive/noxious species assessment.

c. The report shall describe the general condition of the plantings, and discuss likely causes for any observed mortality within those tracts that did not exhibit a plant survival rate of at least 50 percent.

d. Upon confirmation by the CEMVN and OCM that the Bank is progressing as predicted, the Sponsor shall establish one-hundredth-acre permanent continuous monitoring plots that account for at least 2 % of the total planted area. Those plots shall be established in a manner that is representative of the plantings. A permanent

10 marker shall mark each plot center. The Sponsor shall document the species and percentage coverage by species within each plot. The Sponsor will begin monitoring the continuous monitoring plots and submit monitoring reports to the CEMVN and OCM at required intervals.

4. Site Elevation

The Sponsor shall provide a topographic survey with elevations shot along the transect lines established for determining plant survivorship. Surveys should be included in as-built report and monitoring reports at 2, 5, 10, and 20 years following final placement of dredged material.

5. Timing

a. Monitoring shall be conducted during the growing season at 2, 5, 10, and 20 years following final placement of dredged material. b. Monitoring shall take place between September and November;

VII. CONTINGENCY AND REMEDIAL ACTIONS AND RESPONSIBILITIES

In the event monitoring reveals that initial success criteria have not been met, the Sponsor shall take measures to achieve those criteria in accordance with the following plan:

A. Fill Material Elevations and Area

1. Should the final placement of dredged material not meet the initial success criteria defined in Section V.A, the Sponsor shall either deposit additional dredged material or redistribute existing material as necessary to achieve the target percentage and areal coverage.

2. At year 5, if less than 75% of the marsh creation area contains emergent vegetation (at least 50% of which have a FAC or wetter designation), then the Sponsor may be required, at the discretion of the IRT, to deposit and plant (according to IRT specifications) additional dredged material. Should the IRT decide that such measures are necessary, the location and extent of fill placement and vegetative plantings will be determined in consultation with, and with the approval of, the IRT.

3. From years 6 through 20, if less than 50% of the marsh creation area contains emergent vegetation (at least 50% of which have a FAC or wetter designation), then the Sponsor may be required, at the discretion of the IRT, to deposit additional dredged material and plant these areas (according to IRT specifications) so that the extent of marsh coverage is at minimum 50% at year 20. Should the IRT decide that such measures are necessary, the location and extent of fill placement and vegetative plantings will be determined in consultation with, and with the approval of, the members of the IRT.

B. Vegetative Plantings

1. If vegetative plantings survival is less than 50 percent per acre as determined by sampling or by observing high mortality at any location within the planted tract, the Sponsor shall take appropriate actions, as recommended by the IRT, to address the causes of mortality and shall replace all dead plantings during the following planting season. Replanting, in accordance with Attachment C, and monitoring and reporting, as described in Section VI, shall occur as needed to achieve and document the required survival rate. If the survival criterion is not met after a second unsuccessful attempt, the CEMVN will convene a meeting of the IRT and the Sponsor to decide if replanting should continue. Should the IRT determine that achieving the required survival rate would not be likely, the Sponsor shall be required to provide replacement mitigation for the increment of value that did not accrue within the unsuccessful tracts within one year of this decision. In addition, the IRT will reassess the Bank to determine if a new management potential should be calculated incorporating the new conditions or whether the use of the Bank should be discontinued.

2. Monitoring five years following final placement of dredged material shall verify vegetation composition and survivorship goals established in Section VI. The Sponsor shall implement remedial action, as deemed necessary by the IRT, to ensure attainment of survivorship and composition criteria.

C. Force Majeure

Damages (identified below) caused by events beyond the control of the Sponsor and for which contractual agreements do not warrant restoration may be repaired using the principal and interest accumulated in the Catastrophic Event and Long Term Management Fund. Expenditures shall be approved by the IRT to address the following issues:

1. Drought, insect damage, or infection damages to planted vegetation that occurs at a magnitude such that the vegetation fails to achieve the success criteria described in Section V.2. and after each respective tract of planting has surpassed the contractor's one-year warranty (if a one-year warranty was required). Vegetative failure due to improper placement of fill material either too high or too low will not be considered Force Majeure.

2. Damage resulting from fire, flood, hurricane, and other natural disasters;

3. Erosion damages occurring after the site has been fully stabilized.

The Sponsor shall bear the financial responsibility for any and all remedial measures necessary to correct any deficiency caused by any means prior to successful attainment and verification of the long term success criteria by the IRT.

12 Following an event determined to be Force Majeure, use of the mitigation bank will be temporarily suspended pending determination of impacts to the Bank. The IRT will then determine the mitigation credits remaining in the bank to ascertain whether sufficient credits are available to cover the credits sold at the bank and the sale of credits can continue. Should there be a short fall, credit sales will be suspended until the Sponsor has performed remedial work necessary to produce additional credits. If required remedial actions are not taken within one year following the event, the IRT will close the bank. The Sponsor will continue to provide monitoring reports as specified in this document unless determined to be unnecessary by the IRT.

VIII. INSPECTION BY IRT AND HOLDER

Upon request, the Sponsor shall allow any member of the IRT and/or Holder to inspect the Bank. The Sponsor shall monitor planted portions of the Bank to verify achievement of success criteria described in Section V and to validate compliance with the terms of the mitigation covenant or deed restriction and this Banking Instrument.

IX. FINANCIAL ASSURANCES

The purposes of financial assurances are to ensure a high level of confidence that the compensatory mitigation project will be successfully completed in accordance with applicable performance standards. To accomplish this goal, sufficient funds to perform the restoration work and insure its success must be guaranteed. The Sponsor shall establish financial assurance mechanisms to ensure that sufficient funds are available to a third party in the case of non- compliance or bank failure. For the Chef Menteur Wetland Mitigation Bank, the Sponsor will utilize a cash escrow account committing one hundred (100%) of all credit sale funds prior to construction of any phase of the Bank and for credit sales subsequent to construction, a pre-determined amount identified below. The financial assurance amount may be reduced by the following schedule:

a. Upon verification by the IRT that construction has been completed, the CEMVN, acting on behalf of the IRT, shall advise the provider of the financial assurance that the financial assurance may be reduced such that the amount is not less than five thousand dollars ($5,000.00) per acre of the project on which construction has been completed plus the full amount of credit sales on those acres which construction has not commenced.

b. Upon verification by the IRT that the Long term Success Criteria have been attained, when project soils have stabilized and the mitigation site is 90% vegetated and exotic/invasive vegetation encroachment has been controlled to less than five percent (5%), the CEMVN, acting on behalf of the IRT, shall advise the provider of the financial assurance that the financial assurance may be reduced such that the amount is not less than two thousand five hundred dollars ($2,500.00) per acre of the project

13 on which construction has commenced plus the full amount of credit sales on those acres which construction has not commenced.

c. The remaining two thousand five hundred dollars ($2,500) of the financial assurance shall remain within the escrow account to be called the Catastrophic Event and Long-Term Management Fund. In the event of a catastrophic event, as determined by the IRT, that effects the long term viability of the Bank, the IRT can cause the appropriate corrections to occur by either: (i) directing the Sponsor or Long-Term Steward of the Bank, depending upon who is responsible at the time, to implement corrections which will be funded by a release of said funds, (ii) recommend the escrow agent release the necessary funds to the Holder of the Conservation Servitude to make necessary corrections and/or manage the Property, or (iii) recommend the escrow agent release the funds to an Agency represented on the IRT or its designee to effect the necessary corrections. Any unspent funds remaining in this fund after 20 years will be released to the Sponsor.

X. BANK USE

A. Service Area

The Bank is established to provide compensation for impacts to emergent brackish marsh within the Deltaic Plain The service area would be the marshes of the Mississippi River Deltaic Plain within cataloging units 08070204, 08070205, 08090201, 08090203, 08090100, 08090302, 08090301, 08080101, 08080102, and those portions of 08080103 within Iberia Parish. Use of this Bank for habitats other than emergent brackish marsh and beyond the service area will be determined on a case-by-case basis depending upon whether appropriate mitigation can be found within those impacted cataloging units and/or watersheds as defined in the New Orleans District “Compensatory Mitigation Standard Operating Procedures”.

B. Work Producing Credits

Only those areas for which emergent marsh is restored will serve to compensate for impacts to emergent marsh. No credit will be given to reducing shoreline retreat or producing submerged aquatic vegetation. The area of open water (tidal creeks and ponds) created within the marsh construction areas will be subtracted from the total area and will not count towards marsh restoration.

C. Assessment Methodology

The exchange currency of the bank is acres. To determine the amount of acres required to offset a particular impact to brackish marsh, CEMVN will use either best professional judgment or an assessment method that calculates the number of credits per acre available at the bank and the number of credits lost as a result of an impact. The same assessment method will be used to calculate both credits available and credits lost.

14 The amount of available credits per acre calculated using the Wetland Value Assessment and the New Orleans District Modified Charleston Method (MVN MCM) is included as Appendix E.

CEMVN will use a minimum compensation ratio of 1:1 for the permanent loss of wetland functions to low quality wetland ecosystems. Impacts to moderate to high quality forested wetlands will be determined on a case-by-case basis after consulting with the commenting resource agency(ies).

D. Projects Eligible to Use the Bank

Only after CEMVN/OCM has determined that the Bank is appropriate can the Bank be used to satisfy a permittee’s mitigation responsibilities and only if the Sponsor and the permittee reach a mutually acceptable financial agreement. Generally, compensation generated by the establishment, restoration and enhancement efforts at this Bank would be appropriate for those projects meeting the following requirements:

1. The adverse impacts are determined by CEMVN and/or OCM to be unavoidable,

2. The affected habitat is brackish or salt marsh3 or the compensation offered by the Bank is determined to be ecologically preferable in consultation with the other regulatory and resource agencies, and

3. The project is located within the primary service area (U.S.G.S. Cataloguing Unit) and/or secondary service area as defined by this banking agreement only if no other appropriate bank exists in the affected HUC.

Generally the Bank will not be appropriate for adverse impacts occurring outside the primary/secondary Bank service area and/or impacts to other wetland types. However, the CEMVN may consider use of the Bank on a case-by-case basis if after consulting with the other regulatory and resource agencies, they determine that the Bank offers ecologically preferable compensation to that available within the impacted watershed. To compensate for out-of-kind impacts and/or impacts in other watersheds may require adjustment of the compensation ratio and/or the number of credits needed. The CEMVN and/or OCM will determine adequate compensation during review of the specific project for which the use of Bank is being considered.

For projects that require DA authorization and a CUP from OCM, the CEMVN and OCM, in consultation with the other regulatory and resource agencies, will determine the eligibility of such projects to use the Bank on a case-by-case basis and the amount of mitigation to fully compensate for the unavoidable adverse impacts. The bank may be

3 Restoration of brackish marsh at this bank maybe used to compensate for impacts to saline marsh within those watersheds composing the Mississippi Deltaic Plain if (1) there is no appropriate in-kind mitigation or (2) it is determined to be more ecologically preferable to in-kind mitigation and (3) commenting resource agencies agree to the out-of-kind mitigation plan.

15 used to compensate adverse impacts where only the OCM is requiring compensation (i.e., where CEMVN issues a PGP) after only notifying CEMVN of the acreage being withdrawn.

E. Requirements Prior to Release of Credits

1. Permits

The Sponsor will obtain all appropriate permits or other authorizations needed to construct and maintain the Bank, prior to Debiting any advance Credits. This Banking Instrument does not fulfill or substitute for such authorization. In addition, the Sponsor agrees not to utilize a non-reporting Nationwide Permit or Regional Permit under Section 404 of the Clean Water Act to impact any Waters of the United States on the property. Notification shall be required for the use of any Nationwide Permit and/or Regional Permit.

2. Conservation Servitude

The Sponsor shall execute a conservation servitude (pursuant to the Louisiana Conservation Servitude Act, R.S. 9:1271 et seq.) substantially in the form attached hereto as Attachment G and record it in the Mortgage and Conveyances Records Office of Orleans Parish. The conservation servitude will run for a minimum of 20 years. The holder of the conservation servitude shall be approved by the IRT prior to its execution. The holder of the conservation servitude shall be qualified to hold this Conservation Servitude by virtue of being:

a. A governmental body empowered to hold an interest in immovable property under the laws of the State of Louisiana or the United States of America; or

b. A charitable corporation, charitable association, or charitable trust, qualified under § 501(c)(3) of the U.S. Internal Revenue Code, the purposes or powers of which include:

1) Retaining or protecting the natural, scenic, or open-space values of immovable property;

2) Assuring the availability of immovable property for agricultural, forest, recreational or open-space use;

3) Protecting natural resources;

4) Maintaining or enhancing air or water quality; or

5) Preserving the historical, archaeological or cultural aspects of unimproved immovable property.

16 3. Escrow Agreement

The Sponsor shall set up an escrow account administered by a federally insured depository that is "well-capitalized" or "adequately-capitalized" as defined in Section 38 of the Federal Deposit Insurance Act. The value of the account and the release of the escrow account are described in Section X of this Banking Instrument.

4. Property Ownership

The Sponsor shall provide a title search that identifies all known encumbrances including mortgages, liens, rights-of-way, servitudes, easements, etc.

5. Execution of Banking Instrument

The banking instrument must be approved by all participant IRT agencies, as indicated by their signature or letter of support.

6. Work Schedule

The Sponsor shall provide a tentative schedule identifying approximate dates when work is to begin and be completed as to placement of the dredged material and planting of the dredged disposal areas. Work must begin within one year of the initial credit release.

7. Geotechnical Analysis

The Sponsor must provide a written commitment to obtaining geotechnical data that will be sufficient to establish initial construction elevation for all phases of the Bank. The geotechnical analysis must be provided to CEMVN no later than four months following administrative release of credits for any phase of the Bank. Failure to provide the geotechnical analysis will result in removal of the administrative credits from the Bank’s ledger. Additional information regarding the specifics of the required geotechnical analysis is located in Attachment C.

F. Schedule of Credit Availability

Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by the IRT, the CEMVN will provide in writing the release of Credits for use by the Sponsor or for transfer to a third party in accordance with the following schedule:

1. Twenty-five percent (25%) of total anticipated project credits will be available for debiting upon implementation of those items listed in Section X.E.

17 2. An additional twenty-five percent (25%) of total anticipated credits will be available for debiting upon successfully completing the initial success criteria in Section V.A.

3. An additional twenty percent (20%) of the total anticipated credits could be released by the IRT, (acting through the CEMVN) once interim Success Criteria are met (Section V.B.)

4. The remaining thirty percent (30%) of the total anticipated credits could be released by the IRT, (acting through the CEMVN) once the long term Success Criteria are met (Section V.C.)

G. Debiting of Credits from Bank

Upon determination that the Bank is appropriate for use, the permit applicant shall be offered the opportunity to use the Bank. At that time, the permit applicant will contact the Sponsor and arrange for the purchase of the necessary credits/acres4 as determined by the Corps of Engineers’ project manager and/or the OCM permit analyst to satisfy the compensatory needs. The Sponsor shall contract with the permit applicant to provide the necessary credits/acreage and submit to the CEMVN a copy of the executed contract within two working days. The contract shall stipulate the applicant’s name, the CEMVN and/or CMD permit application numbers and the amount of compensation (acreage or credits) sold to the applicant.

Pursuant to entering into contracts with permit recipients and approval of this Banking Instrument, the Sponsor shall incur the responsibility for the long-term management, maintenance, monitoring and protection of the restored wetlands. The Sponsor shall not commit to providing acreage that is not available, or shall not seek mitigation credit for planting acreage that is committed for other projects. Should the number of credits debited exceeds the number created, then no further credit sales shall occur until the Sponsor has implemented corrective actions and achieved the success criteria so as to provide for the number of credits to be greater than or equal to the number of credits debited to cover permitted impacts with this Bank.

XI. LONG-TERM MAINTENANCE AND PROTECTION

The Sponsor, or its heirs, assigns or purchasers shall be responsible for protecting lands contained within the Bank in perpetuity, unless bank lands are transferred or sold to a state or federal resource agency or non-profit conservation organization. The conservation servitude shall incorporate this Banking Instrument by reference and bind the Sponsor, its heirs, assigns, and future owners to complying with the terms of this copy of the Banking Instrument. A copy of the conservation servitude to be filed in the real estate records of the Mortgage and Conveyance Office of Orleans Parish shall be provided to the CEMVN for review and approval prior to filing. After filing, a copy of

4 The amount of mitigation required is determined by the Corp’s of Engineer’s project manager and/or the CMD permit analyst and will be rounded to the nearest tenth of an acre.

18 the recorded conservation servitude, clearly showing the book, page and date of filing, will be provided to the CEMVN and OCM.

A. Uses Prohibited by the Conservation Servitude

1. Placing, filling, storing, or dumping of refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste, or other such items on the property.

2. Mechanized land clearing or deposition of soil, shell, rock or other fill on the property without written authorization from the CEMVN.

3. Cutting, removal or destruction of vegetation on the property except in accordance with any permits authorized by the CEMVN and/or OCM at the time the cutting is proposed.

4. Grazing of cattle or other livestock on the property that has been restored or enhanced.

5. Commercial, industrial, agricultural, or residential uses of the property or partitioning by fencing without approval from the IRT.

6. All other activities, which the IRT determines to be inconsistent with the establishment, maintenance and protection of wetlands within the Bank and which may not be subject to CEMVN and/or OCM regulatory authority.

B. Uses Allowed by the Conservation Servitude

No other human activities that result in the material degradation of habitat within the Bank shall occur without written authorization from CEMVN and OCM. However, it is understood that the conservation servitude shall not prohibit hunting, fishing, trapping, non-consumptive recreational pursuits and exploration and production of minerals. Exploration and production of minerals shall be conducted in accordance with all applicable laws and regulations. The Sponsor acknowledges that such activities have the potential to reduce the total amount of credits available in the bank, depending on the extent of the impacts to the mitigation wetlands.

1. Monitoring of vegetation, soils and water;

2. Maintenance of wetlands, trails, bridges, berms, dams, water-control structures, and other appurtenant facilities authorized by way of a DA and/or OCM permits;

3. Hunting and fishing and other non-consumptive recreational uses such as hiking and bird watching;

4. Ecological education;

5. Exploration and production of minerals as authorized via a DA and/or OCM permits;

6. Provision of rights-of-way;

7. Compliance with state and federal regulations or appropriate court orders.

XII. ADDENDA TO THE MITIGATION BANK

This Banking Instrument may be amended to include additional wetland acreage in the Bank, subject to the provisions set forth in each addendum. If appropriate, a separate wetland assessment may be conducted to determine credits available in each additional tract. Each addendum will immediately become part of this Banking Instrument upon approval by the IRT and will be supplied to the cosignatories.

Conversely, the Sponsor may elect at any time to close out a tract in which no credits have been sold. However, notification to the IRT must be given prior to removal of acreage. The IRT will calculate the amount of available credits for the downsized Bank. The Sponsor understands that the reduction in Bank size may result in a lower credit per acre ratio. Should the amount of available credits be a negative value, the Sponsor shall be responsible for balancing the ledger either by making additional credits available at the bank or providing alternative mitigation.

XIII. MODIFICATION OF THIS BANKING INSTRUMENT

This Banking Instrument is subject to written modification as mutually agreed to by the IRT and the Sponsor for such reasons as significant policy or regulation changes. Should changes in this banking instrument be required by the IRT that are not acceptable to the Sponsor, the Sponsor may elect to end his participation and close the Bank. At that time, the IRT shall (1) revise the Bank’s credit allotment based on the work completed at closure, (2) calculate the credits sold by the Bank, and then (3) determine whether the previously sold acreage is sufficient to balance mitigation needs or whether additional acreage is needed to be left in the Bank to balance the credits mitigated at the Bank. The conservation servitude will remain in force on that portion of the property remaining in the Bank and a sufficient buffer to protect the integrity of the Bank. No recourse will be taken against any individuals who have contracted with the Sponsor prior to such modifications, nor against said parties, in the event the Banking Instrument is terminated. Nothing in this Banking Instrument shall be construed as altering responsibilities or empowering new authorities of the signatory agencies.

XIV. TERMINATION OF THIS BANKING INSTRUMENT

Should the IRT determine that the Sponsor is in material default of any provision of this Banking Instrument, the IRT, acting through the CEMVN may notify the Sponsor that the sale or transfer of any Credits will be suspended until the appropriate deficiencies

20 have been remedied. Upon notice of such suspension, the Sponsor agrees to immediately cease all sales or transfers of Mitigation Credits until the IRT informs the Sponsor that sales or transfers may be resumed. Should the Sponsor remain in default, the IRT, acting through the CEMVN, may terminate the Banking Instrument and any subsequent Bank operations. Upon termination, the Sponsor agrees to perform and fulfill all obligations under this Banking Instrument relating to Credits that were sold or transferred prior to termination.

If circumstances warrant, such as misrepresentation, misapplication, misappropriation, improper management, non-disclosure of pertinent information or non- compliance with the terms of this Banking Instrument by the Sponsor, the CEMVN and other members may void their recognition of the Bank as well as terminate their future participation in this Banking Instrument. Any executed and recorded conservation servitude pertaining to wetlands restored pursuant to mitigation contracts and this Banking Instrument will remain in full force and effect, and as waters of the United States, any subsequent discharges would require Section 404 and/or CMD authorization. Upon termination of this Banking Instrument, the conservation servitude shall remain on those lands for which credits were sold for the use as compensatory mitigation for adverse impacts associated with DA and/or OCM permits. If necessary, a buffer sufficient to protect the integrity of the Bank shall be established and protected by the conservation servitude. The revised conservation servitude shall be recorded in the Mortgage and Conveyance Office of Orleans Parish with the holder acting as the long- term manager. All funds in the escrow account, if any, will be forfeited to the Holder. Additionally, intentional misrepresentation, misappropriation, non-disclosure of pertinent information, non-compliance with the terms of this Banking Instrument, or any other intentional illegal act may be prosecuted the fullest extent of the law.

Any member of the IRT choosing to withdraw its authority or participation shall provide written notification stating reasons for its withdrawal to the CEMVN and the Sponsor. The Sponsor, in its sole discretion, and after providing written notification to the CEMVN, may terminate this agreement as to any acreage not committed as compensation. As waters of the United States, any subsequent discharges in the area would require Section 404 authorization.

XV. TRANSFER OF OPERATION AND/OR OWNERSHIP

The Bank may be transferred (either by sell or donation) to a private conservation group or to a state or federal resource agency only and upon approval by the IRT. If the Bank is transferred to a private conservation group, title to all Bank lands and financial assurances remaining in the escrow account will accompany the transfer, subject to a 20- year covenant that guarantees protection and operation of the Bank as described in this Banking Instrument. If transferred to a state or federal resource agency, the Bank lands may become a part of the overall management of a larger area, such as a wildlife management area, and the covenants on the mitigation land may be changed accordingly, subject to the approval of the IRT.

21 Property ownership cannot be transferred prior to achieving the initial success criteria. Should the property be transferred, the new landowner must agree to and assume all responsibility for the monitoring and management requirements of this banking instrument. The new owner shall confirm his/her agreement by providing a notarized, signed transfer form (Attachment F).

XVI. BANK LIFE

For the purposes of this Banking Instrument, Bank closure will refer to the point at which all of allocated credits are sold, the short and long-term success criteria have been met, and all of the financial-assurance funds have been released. If the Bank has been implemented in tracts, then the bank life for each tract will be considered separately.

XVII. OTHER PROVISIONS

A. Dispute Resolution

The CEMVN shall resolve all disputes concerning application of this Banking Instrument. During the evaluation of a dispute, the CEMVN will consider comments from the other members of the IRT and the Sponsor and/or information provided by an independent review. Nothing in this Banking Instrument shall limit or restrict the right of any party to seek and obtain a judicial review and determination of any matter related to the Bank or this agreement or any of its attachments.

B. Specific Language of Banking Instrument Shall Be Controlling

To the extent that specific language in this document changes, modifies, or deletes terms and conditions contained in those documents that are incorporated into the Banking Instrument by reference, and that are not legally binding, the specific language within the Banking Instrument and any associated Bank Development Plans shall be controlling.

C. Invalid Provisions

In the event any one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

D. Headings and Captions

Any paragraph heading or captions contained in this Agreement may be for convenience of reference only and shall not affect the construction or interpretation of any provisions of this Agreement.

22 E. Liability of Regulatory and Resource Agencies

The responsibility for financial success and risk to the investment initiated by the Sponsor rests solely with the Sponsor. The regulatory and resource agencies that are parties to this agreement administer their regulatory and resource programs to best protect and serve the public’s interest in its waterways, and not to guarantee the financial success of mitigation banks, specific individuals, or entities. Accordingly, there is no guarantee of profitability for any individual mitigation bank. The Sponsors should not construe this agreement as a guarantee in any way that the Agencies will ensure sale of Credits from this Bank or that the Agencies will forgo other mitigation options that may also serve the public interest. Since the Agencies do not control the number of mitigation banks proposed or the resulting market impacts upon success or failure of individual banks, in depth market studies of the potential and future demand for Bank Credits are the sole responsibility of the Bank proponent.

F. Counterpart

The parties may execute this agreement in two or more counterparts, which, in the aggregate, shall be signed by all parties. Each counterpart shall be deemed an original as against any party that has signed it.

Attachment A: Federal and State Authorities

Federal Authorities: 1. Clean Water Act (33 USC 1251 et seq.); 2. Rivers and Harbors Act (33 USC 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 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 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. 58605 et seq. November 28, 1995); 8. Regulatory Guidance Letter No. 02-02, U.S. Army Corps of Engineers, December 26, 2002; and

State Authority

Activities within the Louisiana Coastal Zone are regulated and monitored by the Louisiana Department of Natural Resources, Office of Coastal Management (OCM), under authority of the Louisiana Coastal Resources Management Act of 1978, LA. R.S. 49:214.21-214.41. The purpose of this law is to protect, develop, and where feasible, restore or enhance the resources of Louisiana’s Coastal Zone. The Coastal Use Permit (CUP) is the basic regulatory tool of the OCM. The purpose of the CUP process is to make certain that any activity affecting the Coastal Zone is performed in accordance with regulations and statutes including activities that result in unavoidable adverse impacts to wetlands. The OCM’s authority to require mitigation is found in R.S. 49:214.41. et.seq. The Louisiana Administrative Code, Title 43, Part I, Chapter 7, 724-729 requires compensatory mitigation for all unavoidable impacts and establishes a specific mitigation sequence as law within the Coastal Zone.

The Coastal Wetlands Planning, Protection, and Restoration Act (Public Law 101-646, Title III-CWPPRA) was enacted and signed into law on November 29, 1990. As required by Section 304 of the Act (16 USC 3953), the State of Louisiana developed the Louisiana Coastal Wetlands Conservation Plan (Plan), which was approved by the Secretary of the Army, the Director of the United States Fish and Wildlife Service, and the Administrator of the Environmental Protection Agency on December 1, 1997. The inland boundary of the Coastal Wetlands Conservation Plan was established by interagency coordination and review of maps and imagery, defining the limits of existing wetland habitats and the inland extent of tidal influence.

The participation by the Department of Natural Resources (DNR) in a particular mitigation bank is discretionary. Each mitigation bank proposal is subject to the negotiation of a written Mitigation Banking Instrument (MBI) upon terms and conditions

28 acceptable to the DNR Secretary. Those proposed mitigation bank sites that occur within the Louisiana Coastal Zone and/or the Conservation Plan Area may be eligible to provide mitigation for CUPs and must be strategically located to work in concert with the State’s Comprehensive Master Plan for a Sustainable Coast.

Additional OCM Requirements

Mitigation banks shall be required to be maintained, as defined in this MBI, 20 years for marsh and 50 years for forested wetland habitat(s). Maintenance period for each phase/portion of the mitigation bank shall begin upon attainment of initial success criteria. Time periods when subsequent success criteria are not met shall not count towards the overall maintenance period requirement of the bank.

The Sponsor shall provide to the OCM a ledger report by habitat type by January 15 of each year. The ledger will show all transactions at the Bank for the previous reporting period (January 1 through December 31) and a cumulative tabulation of all transactions to date. At a minimum, each ledger entry must include the following information: Permit number (both CEMVN and Coastal Use Permit [CUP]), permittee name, total credits of each habitat type sold for each permit, date of transaction, total mitigation credits/acres for each habitat type that were authorized to be provided by the Bank, total mitigation credits/acres for each habitat type that have been debited from the Bank to date, and total credits for each habitat type that remain to be debited.

For each transaction, and within 10 days of the transaction, the Sponsor shall provide the OCM with a copy of the letter to CEMVN acknowledging acceptance of the permittee’s mitigation responsibilities and include the permittee’s name, permit number (both CEMVN and CUP), date of transaction, and number and type (habitat) of credits debited. The Sponsor shall submit an executed copy of the credit sales contract to the OCM within two working days of the sale.

To meet requirements of LAC 43:I.723.B.2., credits used to satisfy mitigation requirements of CUPs will only be debited from portions of the Bank that are sited below 5 feet in elevation and not within a fastland. In order to accommodate this requirement, the ledger will be separated into coastal (below 5 feet in elevation and not within a fastland) and non-coastal acres and/or credits based on the map associated with the MBI. For wetland impacts that only require mitigation via a CUP, the OCM will inform the applicant if the Bank is appropriate for offsetting the unavoidable adverse impacts associated with the proposed project and will determine the number of credits that must be secured from the Bank to fully compensate for those impacts. The applicant may choose this Bank or another bank, determined to be appropriate by the OCM to perform the compensatory mitigation or may choose to perform his own appropriate permittee- responsible mitigation project, with the approval of the OCM. Should the permit applicant receive approval from the OCM to use this Bank and chooses to use this Bank, the permit applicant will contact the Bank Sponsor and arrange for the purchase of the necessary credits. The OCM will coordinate with CEMVN to assure that appropriate credits are available.

Copies of all notifications and reports shall be provided to the OCM in the timeframe as required by the MBI and the work plan. Failure to comply with the above requirements could lead to suspension of this bank for the OCM mitigation purposes.

30 Attachment B: Maps

Attachment C: Site Restoration Plan

1) Approximately 60 acres of brackish marsh will be constructed in Phase I in one cell and 448 acres of brackish marsh shall be created in multiple cells in Phase II utilizing a hydraulic dredge. Dredge materials shall be excavated from open water areas shown on the plans and shall be placed at an elevation conducive to vegetated brackish marsh establishment.

2) Prior to start of construction, the basis for the fill design including, but not limited to a Geotechnical analysis, should be provided. Design basis for the target settled elevation should include (1) (historic) geologic subsidence, (2) consolidation of the fill material (i.e., self-weight consolidation), and (3) compaction of the underlying soil due to the weight of the placed fill material (i.e., foundation settlement/compaction). A Geotechnical analysis, using current engineering standards, will be completed on the Phase II sites and proposed borrow areas. This geotechnical evaluation will set the initial construction elevation described below. This analysis will also determine which cells will require berms to meet the initial construction elevation. Geotechnical analysis of both the fill and the borrow areas should be conducted. Geotechnical tasking should include a determination of construction fill elevations and number of lifts to (1) achieve an elevation range equal to adjacent natural marsh; (2) achieve an elevation range conducive to the establishment of marsh that will remain within Mean Low Water (MLW) to Mean High Water (MHW) adjusted for relative sea level rise over 20 years to the maximum extent practicable, and (3) same as (2) but with the created elevation equal to or above MLW at 20 years.

A) At least one composite settlement curve over 20 years into the future for each marsh creation cell and one for corresponding containment dikes should be provided. B) Curves should have MLW and MHW plotted on them adjusted over time for sea level rise to assist in determining initial target elevations and assess project performance. The intermediate rate of sea level rise should be used. Methods for project specific SLR calculations are available in the USACE circular EC 1165-2-212 Water Resource Policies and Authorities Incorporating Sea-Level Change Considerations in Civil Works Programs. C) Geotechnical analysis should identify if determined for single or multi-lift construction and if settlement is measured from the time of initial placement or after some settling or contract acceptance period for the final lift. D) Geotechnical analytical methods used should be disclosed to the IRT in a summary report along with the results and recommendations.

3) A revised site restoration plan will be provided when the geotechnical analysis is complete and within the time frames stipulated in this MBI.

4) The initial construction elevation for brackish marsh is +(TO BE DETERMINED UPON

32 COMPLETION OF A GEOTECHNICAL ANALYSIS) feet NAVD88. With settlement, compaction and oxidation, this should ensure target marsh elevations. Final target marsh elevations were obtained by averaging measurements from healthy stands of vegetation (>80% cover) in unmanaged brackish and salt marsh. Elevation ranges from brackish marsh varied from 0.0 feet NAVD88 to +1.0 feet NAVD88. To ensure that the marsh will have the life expected in the instrument, the average target marsh elevation across the site will be 0.7 feet NAVD88 with an allowable range of 0.2 to 1.2 feet NAVD88. To assist in placement of fill material to proper elevations, survey stakes marked with the initial construction elevations shall be placed on a 100-ft grid throughout each site. Resultant ground surface elevations must be conducive to the establishment and support of wetland vegetation.

5) Any berms that are required will be constructed to an elevation that the geotechnical analysis determines. In situ material for the berms will be obtained from open water areas within the cells to be filled, and berm construction will commence before April of 2014 (since berm construction will not impact Gulf sturgeon). Final plans and specifications for each cell of Phase II will be provided to CEMVN within two weeks of receiving the final geotechnical analysis.

6) Dredging for Phase I has been completed in 2012 and 2013. Any additional dredging required based on the geotechnical analysis will be completed in 2014.

7) Dredging for Phase II will commence in May 2014, in accordance with permits.

8) Dredging for Phase II will be completed by October 2015, if not sooner. All terms and conditions of the existing permits will be complied with.

9) Planting Plan - Following the deposition of substrate material, dewatering of that material, and sediment compaction, plugs (i.e., multi-stem clusters) of marshhay cordgrass {Spartina paten) and smooth cordgrass (Spartina alterniflora) shall be planted on 10-foot centers as require to meet performance standards. Natural recruitment will also be used to meet performance standards.

Gapping Plan – containment dikes may be degraded, notched, or gapped prior to construction demobilization at the discretion of the banker. However, a detailed containment gapping plan identifying location and dimensions of excavation and fill placement shall be developed in further coordination with the IRT and implemented no later than one to two years after construction or if needed, a later time period determined acceptable by the IRT. An on-site investigation with the IRT, use of aerial photography and survey information should occur to assess gapping needs and field fit gaps.

33 Attachment D: Monitoring Report Form

Mitigation Bank Monitoring Report Form

Year 1 (post-dredged material placement)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring. (At least 80% of the site must be within “as-built” or initial construction elevation range.) Provide average elevations in table below.

Transect No. Average elevation

If average elevations exceed or fall below that stipulated in the banking agreement, discuss proposed actions to be taken to restore or create that necessary elevations:

2) Project Drawings. Attach drawings based upon the site plans that depict topography, sampling plots, and permanent photo stations.

3) Date and Acreage Planted.

Tract Name and/or Number Acres Date Planted

4) Species Planted. Species Unit Size Density (No. per acre)

34 5) Plant Survival (immediately post-growing season [September – November]). At least 2% of the total number of planted plugs must be sampled along previously established linear sampling lines (identified at the time of planting).

Transect Number of Number of Percent Number Sampled Plants Live Plants Survival

TOTAL

Plant Survival. Provide a general description of the condition of the plantings and an ocular estimate of percent coverage. If survival rate of plantings is less than 50%, discuss the likely causes for that observed mortality.

6) Visual Description. Verbally describe (in detail) vegetative, hydrologic, and topographic attributes of permanently established monitoring plots or send one color aerial photograph (8”x10” or larger) depicting the entire site. Provide photographs of the permanent photo stations, if such are required by monitoring agreement.

7) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

35 Mitigation Bank Monitoring Report Form

Year 3 (post-growing season)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring. (At least 90% of the site must be within “functional marsh” elevation range.)

2) Aerial Photograph. Taken during the growing season and attached to the monitoring report.

3) Ground Level Photographs. Taken in permanently established locations (which could coincide with monitoring plots), during the time of monitoring.

4) Plant Survival/Vegetative Community Establishment. At least 2% of the total 1 th planted area must be sampled from established /100 -acre plots (the center of which shall be permanently marked at the time of planting). Plot Species Present Wetland Indicator Status Percent Number (Indicate the Dominate Species for (OBL, FACW, FAC, FACU, UPL) Coverage Each Plot)

4a) Plant Survival/Vegetative Community Establishment. Describe invasive/noxious vegetation present on site (indicate species and percent coverage).

5) Tidal Attributes. Describe the results of tidal monitoring (e.g., percentage of area inundated during high and low tides, general tidal flow characteristics of the site, tidal channel and pond condition including any scouring or silting that may have occurred).

6) Project Description/Narrative. Describe, in detail, the overall condition of the bank including all maintenance activities that have occurred at the site.

7) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

37 Mitigation Bank Monitoring Report Form Year 5 (post-growing season)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring. (At least 75% of the site must be within “functional marsh” elevation range.)

2) Aerial Photograph. Taken during the growing season and attached to the monitoring report. (NOT REQUIRED IF TAKEN AT YEAR 3.)

3) Ground Level Photographs. Taken in permanently established locations (which could coincide with monitoring plots), during the time of monitoring.

Plot Species Present Wetland Indicator Status Percent Number (Indicate the Dominate Species for (OBL, FACW, FAC, FACU, UPL) Coverage Each Plot)

4a) Plant Survival/Vegetative Community Establishment. Describe invasive/noxious vegetation present on site (indicate species and percent coverage).

6) Project Description/Narrative. Describe, in detail, the overall condition of the bank including all maintenance activities that have occurred at the site.

7) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

39 Mitigation Bank Monitoring Report Form

Year 10 (post-growing season)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring.

2) Ground Level Photographs. Taken in permanently established locations (which could coincide with monitoring plots), during the time of monitoring.

3) Plant Survival/Vegetative Community Establishment. At least 2% of the total 1 th planted area must be sampled from established /100 -acre plots (the center of which shall be permanently marked at the time of planting).

Plot Species Present Wetland Indicator Status Percent Number (Indicate the Dominate Species for (OBL, FACW, FAC, FACU, UPL) Coverage Each Plot)

3a) Plant Survival/Vegetative Community Establishment. Describe invasive/noxious vegetation present on site (indicate species and percent coverage).

4) Project Description/Narrative. Describe, in detail, the overall condition of the bank including all maintenance activities that have occurred at the site.

6) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

41 Mitigation Bank Monitoring Report Form Year 15 (post-growing season)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring.

2) Ground Level Photographs. Taken in permanently established locations (which could coincide with monitoring plots), during the time of monitoring.

Plot Species Present Wetland Indicator Status Percent Number (Indicate the Dominate Species for (OBL, FACW, FAC, FACU, UPL) Coverage Each Plot)

3a) Plant Survival/Vegetative Community Establishment. Describe invasive/noxious vegetation present on site (indicate species and percent coverage).

4) Project Description/Narrative. Describe, in detail, the overall condition of the bank including all maintenance activities that have occurred at the site.

6) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

43 Mitigation Bank Monitoring Report Form Year 20 (post-growing season)

1) Topographic Survey. Attach a survey with elevations shot along the transect lines that will be used for vegetative monitoring.

2) Ground Level Photographs. Taken in permanently established locations (which could coincide with monitoring plots), during the time of monitoring.

Plot Species Present Wetland Indicator Status Percent Number (Indicate the Dominate Species for (OBL, FACW, FAC, FACU, UPL) Coverage Each Plot)

3a) Plant Survival/Vegetative Community Establishment. Describe invasive/noxious vegetation present on site (indicate species and percent coverage).

4) Project Description/Narrative. Describe, in detail, the overall condition of the bank including all maintenance activities that have occurred at the site.

6) Bank Crediting. TOTAL CREDITS PRODUCED BY BANK______.

Bank Customer Permit Number Credits Purchased Date of Purchase

TOTAL CREDITS SOLD:______REMAINING CREDITS:______

45 Attachment E: Credit Calculations

46 Wetland Value Assessment (WVA)

48 Attachment F: Transfer Agreement letter

U.S. ARMY CORPS OF ENGINEERS NEW ORLEANS DISTRICT

1. MITIGATION BANK TRANSFER

MITIGATION BANK: ______

When the work and/or mitigation authorized and required by the Interagency Agreement for the above-referenced Mitigation Bank are still in existence at the time this Mitigation Bank is transferred, all terms and conditions of that Interagency Agreement will become binding on the Transferee to the fullest extent of the law, the Transferee becoming the new Sponsor of the Mitigation Bank. To validate the transfer of this Mitigation Bank and the liabilities associated with compliance to the terms and conditions of the Interagency Agreement, the Transferee and Transferor sign and date below.

By signing and dating this Mitigation Bank Transfer, Transferee agrees to assume all legal liabilities associated with the Mitigation Bank and to abide by all conditions and requirements of the Interagency Agreement. The Interagency Agreement for the above-referenced Mitigation Bank is attached hereto and made a part hereof. By signing this Mitigation Bank Transfer, the Transferee also acknowledges the existence of the Conservation Servitude over the property composing the Mitigation Bank, a copy of which is attached hereto and made a part hereof.

______Transferee (Date) (Print or Type)

______Transferee’s Signature (Print or Type)

______

______Transferee’s Complete Mailing Address (Print or Type)

______Transferee’s Telephone Number

49 By signing and dating this Mitigation Bank Transfer, Transferor agrees to transfer all lands, accounting ledgers and other assets including any remaining funds in the escrow account that make up the Mitigation Bank to Transferee.

______Transferor (Date) (Print or Type)

______Transferor’s Signature (Print or Type)

______

______Transferor’s Complete Mailing Address (Print or Type)

______Transferor’s Telephone Number

Once completed, it is the responsibility of the Transferor to mail the original of this signed Mitigation Bank Transfer to:

U.S. Army Corps of Engineers ATTN: CEMVN-OD-S P.O. Box 20267 New Orleans, LA 70160-0267

The Transferor and Transferee shall be provided copies of an approved Mitigation Bank Transfer by the Corps of Engineers.

Approved this _____day of______, 20______.

BY: ______CEMVN-OD-S

: ______.