MEMORANDUM OF AGREEMENT A MEMORANDUM OF AGREEMENT AMONG JOSEPH A. TROILO, JR., THE VIRGINIA STATE HISTORIC PRESERVATION OFFICE, AND THE NORFOLK DISTRICT, CORPS OF ENGINEERS RELATIVE TO THE TROILO POND AND. FLEETWOOD HEIGHTS EASEMENT PROPERTY, CULPEPER COUNTY, VIRGINIA WHEREAS, Joseph A. Troilo, Jr. (Permittee) conducted earthmoving activities by bulldozer in and adjacent to approximately 666 linear feet of a perennial stream known as Flat Run in order to construct a private pond on his approximately 60-acre property (Tax Map 33, Parcels 81 and 81A) off Route 685 near Brandy Station in Culpeper County, Virginia; and WHEREAS, Flat Run is a perennial tributary to Rappahannock River and is a water of the United States regulated pursuant to Section 404 of the Clean Water Act; and WHEREAS, the US Army Corps of Engineers (Corps) was not notified of this work prior to commencement; and WHEREAS, on or before May 10, 2011, Clark Hall reported the earthmoving activities to a local, non-profit organization who then reported to the Corps who then coordinated a joint site meeting with Clark Hall on the adjoining Brandy Station Foundation property to inspect. the activities; and WHEREAS, the unauthorized discharge of fill material in Flat Run may be in direct violation of Section 404 of the Clean Water Act (33 U.S.C. 1344), which requires a Department of the Army permit prior to initiating work in waters of the United States; and WHEREAS, pursuant to 36 CFR Part 800, regulations implementing Section 106 of the National Historic Preservation Act of 1966 (NHPA), as amended, 16 U.S.C. 470f, and 33 CFR Part 325, Appendix C, Processing of Department of the Army Permits: Procedures for Protection of Historic Places, the US Ammy Corps of Engineers (Corps) is required to take into account the effects of federally permitted undertakings on properties included in or eligible for inclusion in the National Register of Historic Places (NRHP) prior to the issuance of permits for the undertaking and to consult with the Virginia State Historic Preservation Office (SHPO): and WHEREAS, the disturbance on the Troilo property is located within the boundaries of the Brandy Station Battlefield Historic District (DHR ID# 023-0053), which is considered eligible for listing in the NRHP: and WHEREAS, in accordance with Corps regulations 33 CFR 320-330, no work can be authorized in waters of the United States which may affect historic properties listed, or eligible for listing in the NRHP unless and until the Norfolk thas complied with the provisions of 33 CFR 325, Appendix C; and Page 1 of 8WHEREAS, following issuance of a cease and desist letter, and pursuant to Section 110{K) of the NHPA, the Corps investigated the circumstances surrounding the unauthorized activity and found no evidence of deliberate intent to circumvent the Section 106 process: and WHEREAS, the Corps required the Permittee to conduct a Disturbance Assessment of the affected area; and WHEREAS. a Disturbance Assessment Prepared by the James River Institute for Archaeology, Inc. (JRIA) on June 20, 201 1, determined that the pond construction likely had an adverse effect on prehistoric Native American and Civil War era archaeological resources: and WHEREAS. the Corps has required the Permittee to submit a Stream Banks Restoration Plan to mitigate the effects of the disturbance [Exhibit A], and the associated restoration activities will be authorized under Nationwide Permit 27 (Aquatic Habitat Restoration, Establishment, and Enhancement Activities); and WHEREAS, the Corps will authorize the activities associated with the Stream Banks Restoration Plan; and WHEREAS. the pond construction also resulted in the deposition of excavated fill soil Within two locations with a combined surface area of approximately 13,175 square feet or 0.3024 aere on the adjoining 18.9-aere Fleetwood Heights property (Tax Map 33, Parcel 81F) belonging to the Brandy Station Foundation, Inc. (Foundation); and WHEREAS, the Virginia Board of Historic Resources (Board) holds a historie preservation and open space easement over the 18.9-acre Foundation property granted by deed of gift of easement dated May 2, 2007, and recorded in the County of Culpeper; and WHEREAS, the easement specifically state that material changes to the easement property ‘must be subject to the prior review and written approval of the Board, acting through the SHPO: and WHEREAS, the deposition of fill occurred without review ot approval of the Board, and therefore may constitute a violation of the terms of the easement; and WHEREAS, the Foundation property is located within the boundaries of the Brandy Station Battlefield Historie District (DHR ID# 023-0053), which has been determined eligible for listing in the NRHP; and WHEREAS, the Disturbance Assessment prepared by JRIA on June 20, 201 1, determined that only the deposition of fill materials had occurred on the 18.9-acre Foundation property; and WHEREAS, the Corps has invited the participation of the Advisory Council on Historie Preservation (ACHP) in this consultation, and the ACHP has declined to participate: andWHEREAS. the Corps has invited the Foundation to part this participate: an ate in this consultation and ereement as an invited signatory, and the Foundation has elected to WHEREAS, the Corps has invited Joseph A. Troilo, Jr to participate inthis consultation and to sign this Agreement as an invited signatory and Mr. Troilo has elected to participate; and WHEREAS. the Corps has invited Culpeper County to participate in this consultation and {o sign this Agreement as a concurring party. and the Culpeper County has declined to participate: and NOW THEREFORE, in order to satisfy the Corps’ Section 106 responsibilities to take into account the effects of the undertaking requiring Corps permits on historic properties, 4s well as to mitigate the effects of the disturbance to the adjoining Fleetwood Heights casement property. the Corps and the SHPO agree that the Corps may issue a permit to the Permittee for the Project an such permit will require compliance with this Agreement as & permit condition: thereby effectively incorporating all terms. provisions and stipulations of this Agreement as conditions to the permit such that if any provision or stipulation herein is not fulfilled. such failure will constitute noncompliance with the permit, and the Corps may pursue enforcement and may seek all available remedies, STIPULATIONS 1. STREAM BANKS RESTORATION PROJECT a. The stream banks restoration project will be conducted in accordance with the attached Stream Banks Restoration Plan, as approved by the Corps. On the Foundation property restoration shall consist of reseeding the existing fill with ‘no additional earth-moving, b. The Permittee shall ensure that an archaeologist who meets, at a minimum, the Secretary of the Interior's Professional Qualifications Standards (48 FR. 44738- 9. September 29, 1983) standards shall be present on site during the course of the ill dirt reclamation process associated with the stream banks restoration project to observe the mechanical operation to ensure that the original grass root mat in the reclamation area remains undisturbed. Within fifteen (15) days of completion of the reclamation, the archcologist shall prepare a brief report on the dirt reclamation process and submit it to the Corps and the SHPO. The report shall include photographs and other documentation recording the lack of disturbance to the original grass mat and information on any artifacts recovered during reclamation. Any disturbance to the original grass root mat during reclamation, and the measures taken to address the disturbance, shall also be included in the report. Page 3 of 8