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HomeMy WebLinkAbout20150572 Ver 2_MBI for PN_20170213AGREEMENT TO ESTABLISH THE FALLING CREEK MITIGATION BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE NEUSE NUTRIENT MANAGEMENT STRATEGY TABLE OF CONTENTS I. PREAMBLE............................................................................................................................2 IL LOCATION AND GEOGRAPHIC SERVICE AREA ....................................................... 2 I11. AUTHORITIES................................................................................................................... 3 IV. ESTABLISHMENT OF FALLING CREEK BANK PARCEL .......................................... 3 V. BANK PARCEL DEVELOPMENT PACKAGE............................................................... 4 VI. POST CONSTRUCTION DOCUMENTATION................................................................ 6 VII. CALCULATION OF MITIGATION CREDITS................................................................ 8 VIII. CREDIT RELEASE SCHEDULE................................................................................. 10 IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS ............ 10 X. BANK PARCEL CLOSURE............................................................................................. 12 XI. GENERAL PROVISIONS................................................................................................ 13 ATTACHMENTS A — Division of Water Resources Authority Document B — Buffer Ledger Template C Nutrient Offset Ledger Template D- Rule Text 15A NCAC 02B .0240 E — Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015) 1 I. PREAMBLE This Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of the Falling Creek Nutrient Offset and Buffer Mitigation Bank Parcel (`Bank Parcel") to provide Neuse Riparian Buffer mitigation credits ("Riparian Buffer Credits") and Neuse Nutrient Strategy nutrient load reduction credit ("Nutrient Offset Credits") is made and entered into by and among Wildlands Holdings III, LLC acting as the Bank Sponsor ("Sponsor"), and the North Carolina Department of Environmental Quality — Division of Water Resources ("DWR"). This Instrument is in accordance with 15A NCAC 02B .0240 and the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachment D and E). The purpose of the Bank is: A. To improve water quality of tributaries to Falling Creek through the restoration, enhancement and preservation of riparian buffer habitat and adjacent riparian areas. B. To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits to third parties in the Neuse River Basin, for development (both existing and proposed) requiring such mitigation. II. LOCATION AND GEOGRAPHIC SERVICE AREA A. The Geographic Service Area ("GSA") is the designated area wherein a Bank can reasonably be expected to sell Riparian Buffer Credits and/or Nutrient Offset Credits for impacts due to development activities. B. The Bank Parcel is located within the Neuse River Basin in the State of North Carolina, United States Geological Survey ("USGS") 8 -digit Hydrologic Unit Code ("HUC") 03020201. C. The project is comprised of twelve parcels of land in Wayne County, NC and is currently used for cattle and hog production. The land use is a combination of forested and non - forested pasture and is accessed from Corbett Hill Road, in Mount Olive, NC. The project is located at 35.265769 N and 78.188675W. D. Unnamed tributaries to Falling Creek are the receiving bodies of water for stormwater runoff from this parcel. Falling Creek is classified by DWR as Nutrient Sensitive Waters (NSW). E. Sale or transfer of Riparian Buffer Credits shall be limited to the 8 -digit HUC 03020201, with the exception of the Falls Lake Watershed, unless otherwise authorized by the DWR or delegated local government in accordance with 15A NCAC 02B .0295. OA F. Sale or transfer of Nutrient Offset Credits shall be limited to 8 -digit HUC 03020201 with the exception of the Falls Lake Watershed in accordance with 15A NCAC 02B .0240. III. AUTHORITIES A. The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in accordance with the requirements in the DWR Authority document referenced herein as "Attachment A" and attached to this Instrument. B. Projects eligible for utilization of the credits are those requiring authorization under the requirements of Attachment A and any new approved North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy. C. All activities, including the sale of mitigation credits shall be consistent with approved North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy. IV. ESTABLISHMENT OF FALLING CREEK BANK PARCEL A. The Bank Parcel proposed for inclusion under this Instrument shall require a Bank Parcel Development Package (`BPDP") be submitted to, and approved by, the DWR prior to use of the Bank Parcel for mitigation purposes or sale or transfer of any associated credits. The contents of the BPDP are provided in Section V. This Bank Parcel is part of the "Falling Creek Stream and Wetland Mitigation Bank" Army Action ID# 2015-00940 B. The BPDP will be placed on public notice and made available for public commenting for 15 calendar days. C. Riparian Buffer Credit may be achieved through restoration, enhancement and preservation of DWR riparian buffers as they are defined in 15A NCAC 02B .0233, and other riparian areas allowed per 15A NCAC 02B .0295 (n) and (o) on the Bank Parcel. Buffer credits are only attainable if the width of the restoration site, enhancement site, and preservation site is at least 20 feet from top of bank. D. The Bank Parcel is intended to provide Neuse Riparian Buffer mitigation as follows: 1. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B .0295 (b) and per 15A NCAC 02B .0295 (n) along intermittent and perennial unnamed tributaries to Falling Creek. 2. Enhancing riparian areas along unnamed tributaries to Falling Creek that are being grazed by cattle as allowed in 15A NCAC 02B .0295 (o)(6), by installing fencing around the perimeter of the mitigation site to permanently remove cattle out of the riparian areas and streams where they currently have access. 3. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295 (b) and per 15A NCAC 02B .0295 (o) (5) along unnamed tributaries on the Bank Parcel. 4. Diffuse flow will be maintained onsite. E. Nutrient Offset Credit may be achieved through restoration of the riparian areas adjacent to the streams on the Bank Parcel where agriculture is the predominant land use. The streams onsite are unnamed tributaries that drain to other unnamed tributaries onsite or to Falling Creek. The width of the restoration area begins at the most landward limit of the top of bank or the rooted herbaceous vegetation and extends landward a maximum of 200 feet on all sides of the surface waters. F. The Bank Parcel is expected to provide Nutrient Offsets as follows: 1. Installing fencing around the perimeter of a Restoration Site to permanently remove cattle out of the riparian areas and streams where they currently have access. 2. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 2B .0295 (b) and per 15A NCAC 02B .0295 (n) (2) along unnamed tributaries on the Bank Parcel. Current land uses adjacent to the streams is predominantly a mix of forested and non -forested pasture for cattle grazing. G. The total area of riparian buffer or nutrient offset mitigation on the Bank Parcel is expected to be 64 acres. V. BANK PARCEL DEVELOPMENT PACKAGE A. The Falling Creek Bank Parcel Development Package (BPDP) shall include detailed information consistent with the sections below concerning: 1) site location (8 -digit HUC is required); 2) existing conditions; 3) proposed buffer mitigation and nutrient offset activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated buffer mitigation/nutrient credit calculations, which shall include credit generation, service area, and accounting as appropriate for each regulatory authority; 7) stream buffer determination letter from DWR, and 8) site viability letter from DWR; 9) a figure depicting the proposed stream and wetland mitigation areas; and 10) service area figure for each mitigation type B. The Sponsor will obtain all applicable federal, state, and local documentation, permits, or authorizations needed to construct and maintain the Bank Parcel. This Instrument does not qualify as, or substitute for, such documentation, permit, or authorization. C. The restoration of riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit or Nutrient Offset Credit must be approved by DWR prior to construction. All restoration and enhancement activities must be performed in concurrence with any stream or wetland mitigation activities and not before. D. Requests for deviation from the approved BPDP must be submitted to DWR in writing. Written approval from the DWR must be received prior to implementing any deviation from the approved BPDP. Property Disposition & Long Term Management E. Prior to the release of any credits, the Sponsor shall acquire a permanent conservation easement at the County Register of Deed's office that is sufficient to ensure protection, operation and maintenance of restored riparian buffers and other riparian areas for the duration specified in the approved BPDP. F. The form of the conservation easement shall be consistent with the standards employed by the State of North Carolina in the protection of restored riparian buffers and riparian areas and shall be approved by the DWR and Army Corps of Engineers (ACOE) prior to the release of any credits. G. The Sponsor shall not grant additional easements, right of ways, or any other property interest in or to the project areas, without prior approval from the DWR. H. The Sponsor agrees to transfer or assign the conservation easement and its interests in perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and 170(h) of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring Report. The holder shall be a land trust or stewardship program that will hold and enforce the conservation easement and the interests in perpetuity. The Sponsor shall choose a land trust or stewardship program that is accredited by the Land Trust Accreditation Commission and/or has been approved by DWR prior to the end of the fourth year monitoring period. Aland trust must be certified under 501(c)(3) of the Internal Revenue Code. I. In the event that the Sponsor is also the owner of the underlying fee interest in the property, the conveyance of the conservation easement to a land trust or stewardship fund must be arranged at the outset of the approved BPDP. Financial Assurances J. Following approval of the BPDP, the Sponsor shall provide a Performance/Maintenance Bond from a surety company that is rated no less than an "A-" as rated by A.M. Best, to construct the site according to the approved BPDP. It is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with each annual bond renewal. K. The Performance Bond amount shall be 100% of the estimated cost for implementation of the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond shall be less than $150,000.00 to cover construction costs. L. Alternatively, in lieu of posting the Performance Bond, the Sponsor may elect to construct the project prior to the first credit release. M. Once DWR has released all credits for completion of Task 2 according to the credit release schedule in Section VIII and the DWR has received the As -Built Report as described in Section VI and has submitted a written approval of the As -Built Report, then the Bank 5 Sponsor can be released from its performance obligations under the performance bond required in "J -K" of this section. N. To comply with this section, DWR must be the Obligee on all performance bonds. VI. POST CONSTRUCTION DOCUMENTATION As -Built Report A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument, to establish, maintain, and monitor Neuse Riparian Buffers or other riparian areas until Item B (1) and (2) of Section X have been satisfied. B. The Sponsor will submit an as -built plan and report for the Bank Parcel within 30 calendar days after completing the establishment of the buffer and nutrient offset mitigation areas. The as -built report will describe any deviation from the approved BPDP and will document the following: 1. Buffer restoration: planting details, invasive species control, monitoring device locations, vegetation plot locations, photo point locations, surface and groundwater elevations, as appropriate. 2. Provide confirmation that the construction of the Falling Creek Stream and Wetland Mitigation Bank has been completed. Boundary Survey of the conservation easement area, signed and sealed by a licensed surveyor, including an enumeration of the final mitigation areas for riparian buffer and/or nutrient offset mitigation credits in both square feet and acres 4. As -built map of the mitigation area showing where restoration was performed and any deviations to the Bank Parcel from what was approved in the BPDP. 5. As -Built map of the stream and/or wetland mitigation areas 6. Aerial map of the mitigation area that was included in the approved BPDP. Financial Assurance C. After completion of the restoration/construction a separate Performance/Maintenance Bond will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan as described in the approved BPDP. The Bond must be from a surety company that is rated no less than an "A-" as rated by A.M. Best, and it is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with annual bond renewal. Co D. A Performance/Maintenance Bond shall be secured each year for a minimum of five years, and until DWR has released all mitigation credits to the Bank Sponsor. Upon DWR approval, the bond may be lowered each year based on the adjusted cost to complete the monitoring. No bond shall be less than $100,000 to cover monitoring and maintenance costs. E. Once DWR has released all credits for completion of Tasks 1-9 according to the credit release schedule in Section VIII, the Bank Sponsor can be released from its performance obligations under the performance bond required in "C -D" of this Section F. To comply with this section, DWR must be the Obligee on all performance bonds. Monitoring and Maintenance Reports G. The Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as DWR determines that the success criteria described below have been met. The monitoring period shall be a minimum of five consecutive years. H. Performance Standards for Vegetation: Native hardwood trees or native hardwood tree and shrub species should be planted at a density sufficient to provide 260 stems per acre after five years. A minimum of four (4) native hardwood trees or four (4) native hardwood tree and shrub species must be planted. No one species shall be greater than 50% of the planted stems. A list of species for planting will be detailed in the BPDP for approval. Native hardwood tree volunteer species may be included to meet performance standards as determined by the DWR. I. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height. If the performance standards of the vegetation are not met, supplemental plantings may be required. Supplemental plantings will be utilized until the required densities have been achieved and maintained for five years. Bank Parcel maintenance, such as ensuring diffuse flow, managing invasive species, and pest control will be included in the BPDP. K. Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit: Reporting criteria of the riparian restoration areas shall be based on the Carolina Vegetation Survey (CVS) — EEP Protocol for Recording Vegetation Level 2 Plot Sampling Only Version 4.0 or any updated versions of this protocol in place at the date of acceptance of the BPDP. The Sponsor shall submit to the DWR an annual monitoring report no later than December 31 of each year for a minimum of five consecutive years after the first full growing season. This report will describe the conditions of each Bank Parcel, including an evaluation of the performance standards of the vegetation contained within the approved BPDP. Reports shall contain the following: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 7 2. A detailed narrative summarizing the condition of the Bank Parcel along with any maintenance or remediation performed that year; and 3. A map, survey, or other figure showing locations of sampling plots, permanent photo points, location of transects, etc.; and 4. Monitoring data, including specific vegetative counts showing that the trees or tree and shrub species planted are meeting performance standards and updated photographs; and 5. A copy of the most recent Bank credit/debit ledgers; and 6. Corresponding verification letters from designated local governments upon request; and 7. Corresponding Mitigation Transfer Certificates upon request. 8. Proof of performance bond renewal to cover the next monitoring year (if applicable) Contingency Plans/Remedial Actions L. In the event the Bank Parcel fails to achieve the success criteria described in this Instrument and the approved BPDP, the Bank Sponsor shall develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcel and the Bank. Depending on the degree of remedial actions required, the DWR may modify the monitoring period. VII. CALCULATION OF MITIGATION CREDITS Riparian Buffer Credits A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n). B. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295 (n) and defined in 15A NCAC 02B .0295 (b), may be used for either Riparian Buffer Credit or Nutrient Offset Credit, but not both. C. Riparian buffer enhancement on the Bank Parcel, as described in 15A NCAC 02B .0295 (o)(6), can be used for only Riparian Buffer Credit. N. D. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (o)(5) and defined in 15A NCAC 02B .0295 (b), can be used for only Riparian Buffer Credit. E. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. F. Pursuant to 15A NCAC 02B .0295 (1)(6)(B), `Buffer mitigation credit shall not be generated within wetlands that provide mitigation credit required by 15,4 NCAC 02H .0506". G. Riparian wetlands present on the Bank Parcel that are restored or enhanced as part of the approval of the Falling Creek Stream and Wetland Mitigation Bank, and are present within the top of the stream bank and extend out to a maximum of 200' perpendicular to the stream, may be used for either Riparian Buffer Credit or Wetland Mitigation Credit, but not both. Performance standards must comply with those in 15A NCAC 02B .0295 to be approved for buffer mitigation credit. Nutrient Offset Credits H. All Nutrient Offset Credits will be determined by including the applicable ratio as provided in 15A NCAC 02B .0295 (m) for a Restoration Site. All riparian areas proposed for nutrient offset credits must be a minimum of fifty (50) feet from the top of the stream bank. I. Nutrient Offset Credits cannot be achieved through the enhancement or preservation activities performed on this Bank Parcel. J. Nutrient Abatement of Restored Riparian Area/Buffers: The Sponsor and DWR agree: 1. The pounds of nitrogen offset per acre of restored riparian areas/buffers shall be 2,273.02 pounds per acre. K. The Sponsor and DWR agree that the amount of Nutrient Offset Credit per acre associated with restoration of riparian areas and buffers on this Bank Parcel, shall be fixed as part of the approval of the Falling Creek MBI and BPDP, with the fixed amount not changing during the development or credit release schedule for the Bank Parcel. This space left blank intentionally, do not add text to this space. I VIII. CREDIT RELEASE SCHEDULE A. Credit Release: Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the mitigation credits associated with the Bank Parcel will become available for sale to a third parry in accordance with the following schedules: Table I - Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits Task Project Milestone % Credit Available for Sale 1 MBI and BPDP Approved by DWR, Conservation Easement Recorded* and Financial Assurance Posted 20 2 Mitigation Site Earthwork, Planting and Installation of Monitoring Devices Completed 20 3 1 Monitoring Financial Assurance Posted and Approval of As -Built Report 10 4 Monitoring Report #1: Approved by the DWR** & financial assurance renewed 10 5 Monitoring Report #2: Approved by the DWR** & financial assurance renewed 10 6 Monitoring Report #3: Approved by the DWR** & financial assurance renewed 10 7 Item B (1) of Section X in this Instrument has been completed and approved by DWR. 5 No remaining credits will be released until Task 7 has been satisfied 8 Monitoring Report #4: Approved by the DWR** & financial assurance renewed 5 9 Monitoring Report #5: Approved by the DWR** and final site visit by DWR has been conducted 10 Total 100% * For specification, please see Section V in this Instrument ** DWR Approval provided upon a determination that the site is meeting success criteria contained within the approved BPDP B. DWR may modify the credit release schedule based on the information submitted or the order in which required information is received. DWR will notify the Sponsor of any modification to the credit release schedule. IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS Credit Ledgers A. The Bank Sponsor shall maintain three credit ledgers, if applicable, for the Bank Parcel under this Instrument: one accounting for buffer Restoration mitigation credits in square feet and acres, one accounting for buffer Enhancement and Preservation credits in square feet and acres, and one accounting for nitrogen nutrient offset credits in pounds and acres. B. Each credit ledger shall be submitted on a separate 8 1/tin X 11 in spreadsheet with legible font style and font size. All ledgers shall be submitted using the templates provided in Attachments B and C of this Instrument or any updated versions to these templates as provided by DWR. 10 Credit Processing C. Riparian Buffer Credits generated on this Bank Parcel must be provided to offset impacts within the Neuse River Basin according to 15A NCAC 02B .0295 (g). D. Nutrient Offset Credits generated on this Bank Parcel can only be provided to offset nutrient loadings within the 03020201 HUC of the Neuse River Basin, excluding Falls Lake Watershed. E. Available mitigation credits (credits that have been released by DWR but not sold by the Sponsor) that are generated from riparian buffer restoration, as defined in 15A NCAC 02B .0295 (b) and described in 15A NCAC 02B .0295 (n) along intermittent streams can be converted and transferred from Riparian Buffer Credits to Nutrient Offset Credits and from Nutrient Offset Credits back to Riparian Buffer Credits upon written approval from DWR. F. The Bank Sponsor shall obtain verification of nutrient offset need from a designated local government in the Neuse River Basin outside of the Falls Watershed, prior to debiting Nutrient Offset Credits from the Bank Parcel. G. The Bank Sponsor shall obtain verification of buffer mitigation required from the delegated local government in the Neuse River Basin outside of the Falls Watershed or DWR prior to debiting Riparian Buffer Credits from the Bank Parcel. H. Wildlands cannot convert any area slated to generate wetland mitigation credit to riparian buffer credit unless the USACE has determined that the area will not generate wetland mitigation credits. Therefore, only riparian area (top of bank — 200') adjacent to the streams on this Bank Parcel, that comply with 15A NCAC 02B .0295 and fail to qualify to generate wetland credit may be viable for generating riparian buffer credit.. However, any credits converted and transferred from the Falling Creek Stream and Wetland Mitigation Bank to the Falling Creek Nutrient Offset and Buffer Mitigation Bank, cannot be converted and transferred back to the Falling Creek Stream and Wetland Mitigation Bank. I. The Sponsor must submit a written request and receive written approval from DWR prior to any wetland credit conversions and transfers to the buffer credit ledger. As part of that request, the Sponsor must provide DWR with a written acceptance letter from the USACE, accompanied by supporting documents, for any wetlands that they want removed from the wetland mitigation bank. After Bank Parcel Closure has commenced, which is described in Section X of this document, the Bank Sponsor will be unable to add mitigation credits to the Falling Creek Nutrient Offset and Buffer Mitigation Bank from the Falling Creek Stream and Wetland Mitigation Bank 11 K. All credit and debit transactions for each Bank Parcel under this Instrument shall be accurately depicted in the credit ledgers. DWR shall be notified of each credit sale or credit transfer within thirty (30) calendar days by electronically submitting an updated credit ledger to DWR. At a minimum, DWR shall receive a hard copy of updated credit ledgers along with the corresponding Mitigation Credit Transfer Certificates ("Certificate") and all corresponding letters from the designated local governments twice a year. Notification of all credit sales shall be provided to DWR until all credits that have been released have been sold. Mitigation Credit Transfer Certificates L. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is required to be provided to the buyer of Riparian Buffer and/or Nutrient Offset credits, that will include, at a minimum, the following information: Bank Details: (1) sponsor Name, (2) bank parcel name as it appears on the BPDP, (3) DWR project number for the BPDP. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 — when applicable) amount of nitrogen credits purchased in pounds and confirmation from the designated local government of the amount required, (4 — when applicable) amount of phosphorous credits purchased in pounds and confirmation from the designated local government of the amount required, and (5 — when applicable) amount of Riparian Buffer Credits purchased in square feet and the confirmation from DWR or the local government of the amount required. Project Details: (1) project name as it appears on DWR or local government permits and/or certifications, (2) 8 -digit HUC, (3) river basin, (4) nutrient strategy applicable to the project, (5 — when applicable) designated local government requiring Nutrient Offset Credits, and/or (6) DWR authorization number or delegated local government requiring Riparian Buffer Credits for this project. M. If the DWR determines that the Bank is operating at a deficit (e.g. the Sponsor is closing on sales and/or transferring credit that is not available), or the Bank is selling credits out of compliance with statutes, rules or this Agreement, the sale/transfer of credits will immediately cease, and the DWR, in consultation with the Sponsor, will determine what remedial actions are necessary. X. BANK PARCEL CLOSURE A. Bank Parcel Closure shall be identified as the event when the Sponsor is relieved of all of its responsibilities to the Bank Parcel and there are no mitigation credits left to sell. B. Bank Parcel Closure shall commence only after all of the following events have occurred: 12 Transfer or assign the conservation easement and all of its interests, in perpetuity, to a land trust or stewardship program as described in Section V of this instrument. 2. All five years of monitoring completed and all monitoring reports submitted and approved by DWR. 3. All credits have been released and debited and updated ledgers showing zero credit balances have been submitted and approved by DWR. XI. GENERAL PROVISIONS A. Upon the presentation of proper credentials, and during normal business hours, the Sponsor and the landowner shall grant permission to the Director of DWR, an authorized representative of the Director of DWR, to enter the property containing the Bank Parcel(s). B. Amendments: This Banking Instrument may be amended or modified only with written approval of all signatory parties. C. Any transfer of the Sponsor's rights or obligations outlined in this Instrument or any other agreement referenced in this Instrument to a third party must be approved by DWR prior to the transfer. D. Force Majeure: After 100% of all of the credits have been released according to the credit release schedule in Section VIII and confirmation has been received by the DWR that the Conservation Easement has been successfully assigned in compliance with Item H of Section V, the Sponsor will not be responsible for Bank failure that is attributed to natural catastrophes including but not limited to flood, drought, disease, regional pest infestation, etc. that are beyond the control of the Sponsor. E. However, if an event occurs before 100% of all of the credits have been released according to the credit release schedule in Section VIII, then the Sponsor shall take remedial action to restore the property to its condition prior to the event, in a manner sufficient to provide adequate mitigation to cover credits that were sold prior to the occurrence of the event. Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate, as determined by DWR and the Sponsor. DWR must concur in writing that a force majeure event has occurred for this provision to apply. F. Oversight: Actions taken by DWR may include, but are not limited to, the following: 1. Site visits. 2. BPDP review and approval of items listed in Section V of this instrument. 3. As -Built Report review and approval of items listed in Section VI of this instrument. 4. Monitoring Report review and approval of items listed in Section VI of this instrument. 5. Credit Ledger review and approval of items listed in Section IX of this instrument. 13 6. Certificate review of items listed in Section IX of this instrument and cross analysis to credit ledgers. 7. Information requests, file reviews and audits Reports, ledgers, files and other information shall be made available to DWR upon request, unless otherwise specified in this or any other document. G. Validity of the Banking Instrument: This Instrument will become valid on the date of the last party's signature. H. 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 Instrument by reference, and that are not legally binding, the specific language within the Instrument shall be controlling. Any disputes over decisions regarding this Instrument, shall be referred to the Director of DWR for a decision. The Director's decision is subject to review as provided in Articles 3 and 4 of G.S. 150B. J. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently, and voluntarily. K. Notices: All notices and other communications which may be or are required to be given or made by any party to the other shall be in writing and shall be deemed to have been properly given and received on the date delivered in person or deposited in the United States mail, registered or certified, return receipt requested, to the addresses set out below, or at such other addresses as specified by written notice delivered in accordance herewith. If to Bank Sponsor: 1430 South Mint Street, Suite 104 Charlotte, NC 28203 Attn: Shawn Wilkerson Copy to: 312 W.Millbrook Rd, Suite 225 Raleigh, NC 27609 Attn: John Hutton If to DWR: NC Division of Water Resources — 401 & Buffer Permitting Branch Attn: Nutrient Offset Banking Coordinator 1617 Mail Service Center Raleigh, NC 27699-1617 L. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. 14 Wildlands Holdings III, LLC By: (Print) (Signature) Title: Date: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF WATER RESOURCES By: (Print) (Signature) Title: Date: 15 Updated Nutrient Offset Program & Buffer Mitigation Program 1/24/2017 Authorities for MBI ATTACHMENT A Authorities pertaining to the Falling Creek Mitigation Banking Instrument All Basins General Statutes: G.S. § 143-214.11 Ecosystem Enhancement Program G.S. § 143-214.26 Nutrient Offset Credits G.S. § 143-214.20-24 Riparian Buffer Protection Program G.S. § 143-214.7 Stormwater runoff rules and programs G.S. § 143-215.8B Basinwide Water Quality Management Plans Session Laws S.L. 2015-246 S.L. 2015-149 S.L. 2014-90 S.L. 2014-120 S.L. 2013-413 S.L. 2013-121 S.L. 2013-265 S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. § 143-215.1) S.L. 2011-343 (Amendment to G.S. § 143-214.11) S.L. 2009- 337 (Amendment to G.S. § 143-214.11) Administrative Rules: 15A NCAC 02B .0202 Definitions 15A NCAC 02B .0223 Nutrient Sensitive Waters 15A NCAC 02B .0237 Best Management Practice Cost -Effectiveness Rate 15A NCAC 02B .0240 Nutrient Offset Payments 15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers Neuse River Basin Buffer and Neuse Nutrient Strategy Session Laws S.L. 2011-394 S.L. 1998-221 (Part I) S.L. 1995-572 Administrative Rules: 15A NCAC 02B .0232 Basin Nutrient Reduction Goal 15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B .0235 Basinwide Stormwater Requirements 15A NCAC 02B .0236 Agricultural Nitrogen Loading Reduction 15A NCAC 02B .0238 Agricultural Nitrogen Reduction Strategy 15A NCAC 02B .0239 Nutrient Management 15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers Attachment B on c •L y `O U v L z �vj m � L © L LL i -O u Q o � Y � v v v Q LL � L Y v a U � GJ i � O M u Q N H 4+ O a+ M Y O v M o u N CA LL y N pC Cr C V1 � N I � J � C Y 0 C,6 U H O Lnv Z Co C: J N v U v _ U � 0.0 O ro L OJ v O1 U 0 O Q) m s U L 3 a v M m v M v � a, o Attachment B Attachment C c ai Cr ot Y o u u C �D N ` u M Q Co Y V O 4) 3 Z ° L Y aZ Y C M Co y E u O Q LL to C d D-0 O Z w Z N O _ N � L v 3 o a � N f6 D, `u o Q' N O a c o m m m 0 c a U N OD C 2 ^ Y - Y a 7 Y CL Z o C v Co � 'I D J 7 Co of O OJ # O U U N � O pb0 O Y d C + M K D! z J Z 7 Q z Y M Z 41 O1 V y U O DD c LL d H d Ol OC M L V 0 O d N A L u a a m � Q d y N t6 Ol d ATTACHMENT D 15A NCAC 0211 .0240 NUTRIENT OFFSET PAYMENTS (a) The purpose of this Rule is to establish procedures for the optional payment of nutrient offset fees to the NC Ecosystem Enhancement Program, subsequently referred to as the Program, or to other public or private parties where the Program or such parties implement projects for nutrient offset purposes and accept payments for those purposes, and where either of the following applies: (1) The following rules of this Section allow offsite options or nutrient offset payments toward fulfillment or maintenance of nutrient reduction requirements: (A) .0234 and .0235 of the Neuse nutrient strategy, (B) .0258 of the Tar -Pamlico nutrient strategy, and (C) applicable rules of the Jordan nutrient strategy, which is described in Rule .0262; and (2) Other rules adopted by the Commission allow this option toward fulfillment of nutrient load reduction requirements. (b) Offset fees paid pursuant to this Rule shall be used to achieve nutrient load reductions subject to the following geographic restrictions: (1) Load reductions shall be located within the same 8 -digit cataloguing unit, as designated by the US Geological Survey, as the loading activity that is being offset; (2) The Division shall track impacts by 10 -digit watershed, as designated by the US Geological Survey and providers shall locate projects proportional to the location of impacts to the extent that the projects would meet the least cost alternative criterion per S.L. 2007-438. The location of load reduction projects shall be reviewed during the approval process described in Paragraph (c) of this Rule; (3) Impacts that occur in the watershed of Falls Lake in the upper Neuse River Basin may be offset only by load reductions in the same watershed; Impacts in the Neuse 01 8 -digit cataloguing unit below the Falls watershed, as designated by the US Geological Survey, may be offset only by load reductions in that same lower watershed; (4) Restrictions established in the Jordan nutrient strategy, which is described in Rule 15A NCAC 02B .0262; and (5) Any further restrictions established by the Commission through rulemaking. (c) The Program and other parties shall obtain Division approval of proposed nutrient offset projects prior to construction. Other parties shall sell credits in compliance with approved credit release schedules and with the requirements of this Rule. Project approval shall be based on the following standards: (1) Load reductions eligible for credit shall not include reductions used to satisfy other requirements under the same nutrient strategy; (2) The Program and other parties shall agree to provide adequate financial assurance to protect and maintain load reductions for the stated duration, including for maintenance, repair and renovation of the proposed measure; (3) The Program and other parties shall agree that once credits are established for a measure and until they are exhausted, they shall provide a credit/debit ledger to the Division at regular intervals; (4) The Program and other parties shall agree that the party responsible for a measure shall allow the Division access to it throughout its lifetime for compliance inspection purposes; (5) The Program or other party seeking approval shall obtain a site review from Division staff prior to Division approval to verify site conditions suitable to achieve the proposed load reductions through the proposed measure; and (6) The Program shall submit a proposal, and other parties shall submit a proposal or a draft banking instrument, addressing the following items regarding a proposed load -reducing measure: (A) Identify the location and site boundaries of the proposed measure, the geographic area to be served by credits in compliance with the requirements of Paragraph (b) of this Rule, existing conditions in the contributing drainage area and location of the measure, and the nature of the proposed measure with sufficient detail to support estimates of load reduction required in this Paragraph; (B) Provide calculations of the annual magnitudes of load reductions and identify final credit values incorporating any delivery factors or other adjustments required under rules identified in Paragraph (a) of this Rule; (C) Define the duration of load reductions, and provide a conservation easement or similar legal mechanism to be recorded with the County Register of Deeds and that is sufficient to ensure protection and maintenance of load reductions for the stated duration; ATTACHMENT D (D) Identify the property owner and parties responsible for obtaining all permits and other authorizations needed to establish the proposed measure, for constructing and ensuring initial performance of the proposed measure, for reporting on and successfully completing the measure, for holding and enforcing the conservation easement, and for ensuring protection and maintenance of functions for its stated duration; (E) Provide a plan for implementing the proposed measure, including a timeline, a commitment to provide an as -built plan and report upon establishment of the measure, elements to be included in the as -built plan and report, a commitment to provide a bond or other financial assurance sufficient to cover all aspects of establishment and initial performance prior to the release of any credits, and criteria for successful completion; and (F) Provide a monitoring and maintenance plan designed to achieve successful completion, that commits to annual reporting to the Division until success is achieved, that recognizes the Division's authority to require extension or re-initiation of monitoring depending on progress toward success, and that commits to a final report upon completion. The final report shall reaffirm the party that shall hold and enforce the conservation easement or other legal instrument. (d) The Program shall establish and revise nutrient offset rates as set out in Rule .0274 of this Section. Offset payments accepted by the Program shall be placed into the Riparian Buffer Restoration Fund administered by the Department pursuant to G.S. 143-214.21 (e) Persons who seek to pay nutrient offset fees under rules of this Section shall do so in compliance with such rules, the requirements of Paragraph (b) of this Rule, and the following: (1) A non-governmental entity shall purchase nutrient offset credit from a party other than the Program if such credit is available in compliance with the criteria of this Rule at the time credit is sought, and shall otherwise demonstrate to the permitting authority that such credit is not available before seeking to make payment to the Program; (2) Offset payments made to the Program shall be contingent upon acceptance of the payment by the Program. The financial, temporal and technical ability of the Program to satisfy the mitigation request will be considered to determine whether the Program will accept or deny the request; (3) Where persons seek to offset more than one nutrient type, they shall make payment to address each type; (4) The offset payment shall be an amount sufficient to fund 30 years of nutrient reduction. (5) Persons who seek offsets to meet new development stormwater permitting requirements shall provide proof of offset credit purchase to the permitting authority prior to approval of the development plan; and (6) A wastewater discharger that elects to purchase offset credits for the purpose of fulfilling or maintaining nutrient reduction requirements shall submit proof of offset credit acquisition or a letter of commitment from the Program or third party provider with its request for permit modification. Issuance of a permit that applies credits to nutrient limits shall be contingent on receipt of proof of offset credit acquisition. A discharger may propose to make incremental payments for additional nutrient allocations, contingent upon receiving a letter of commitment from the Program or third party provider to provide the offset credit needed for permit issuance. In that event the Division may issue or modify that permit accordingly, and shall condition any flow increase associated with that incremental purchase on payment in full for the additional allocation. Offset responsibility for nutrient increases covered under this Paragraph shall be transferred to the Program or third party provider when it has received the entire payment. (f) Credits associated with load reducing activities funded under this Rule shall be awarded exclusively to the person, municipality, discharger, or group of dischargers who paid the offset fee. History Note: Authority G.S. 143-214.1; 143-214.20; 143-214.21; S.L. 1995, c. 572; S.L. 2007, c. 438; S.L. 2009, c. 337; S.L. 2009, c. 484; S.L. 2009, c. 486; Eff. August 1, 1998; Amended Eff. August 1, 2006; Amended Eff. September 1, 2010. ATTACHMENT E 15A NCAC 02B.0295 MITIGATION PROGRAM REQUIREMENTS FOR PROTECTION AND MAINTENANCE OF RIPARIAN BUFFERS (a) PURPOSE. The purpose of this Rule is to set forth the mitigation requirements that apply to applicants listed in Paragraph (c) of this Rule and to set forth requirements for buffer mitigation providers. (b) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows: (1) "Authority" means either the Division or a local government that has been delegated or designated pursuant to Rules .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter to implement the riparian buffer program. (2) "Compensatory Buffer Mitigation Bank" means a buffer mitigation site created by a mitigation provider and approved for mitigation credit by the Division through execution of a mitigation banking instrument. (3) "Division" means the Division of Water Resources of the North Carolina Department of Environment and Natural Resources. (4) "Enhancement Site" means a riparian zone site characterized by conditions between that of a restoration site and a preservation site such that the establishment of woody stems (i.e., tree or shrub species) will maximize nutrient removal and other buffer functions. (5) "Hydrologic Area" means the Watershed Boundary Dataset (WBD), located at no cost at http://data.nconemap. com/geoportal/catalog/search/resource/details.page?uuid= { 16A42F31- 6DC7-4EC3-88A9-03E6B7D556531 using the eight -digit Hydrologic Unit Code (HUC) prepared by the United States Geological Survey. (6) "Locational Ratio' means the mitigation ratio applied to the mitigation requirements based on the location of the mitigation site relative to the impact site as set forth in Paragraph (f) of this Rule. (7) "Mitigation banking instrument" means the legal document for the establishment, operation, and use of a mitigation bank. (8) "Monitoring period" means the length of time specified in the approved mitigation plan during which monitoring of vegetation success and other anticipated benefits to the adjacent water as listed in the mitigation approval is done. (9) "Non -wasting endowment" means a fund that generates enough interest to cover the cost of the long term monitoring and maintenance. (10) "Outer Coastal Plain" means the portion of the state shown as the Middle Atlantic Coastal Plain (63) on Griffith, et al. (2002) "Ecoregions of North and South Carolina." Reston, VA, United States Geological Survey available at no cost at http://www.epa.gov/wed/pages/ecoregions/ncsc_eco.htm. (11) 'Preservation Site" means riparian zone sites that, as determined by a site visit conducted by the Authority, are characterized by a forest consisting of the forest strata and diversity of species appropriate for the location. (12) "Restoration Site" means riparian zone sites that are characterized by an absence of trees and by a lack of dense growth of smaller woody stems (i.e., shrubs or saplings) or sites that are characterized by scattered individual trees such that the tree canopy is less than 25 percent of the cover and by a lack of dense growth of smaller woody stems (i.e., shrubs or saplings). (13) "Riparian buffer mitigation unit" means a unit representing a credit of riparian buffer mitigation as set forth in Paragraph (m) of this Rule. (14) "Riparian wetland" means a wetland that is found in one or more of the following landscape positions: (A) in a geomorphic floodplain; (B) in a natural topographic crenulation; (C) contiguous with an open water equal to or greater than 20 acres in size; or (D) subject to tidal flow regimes excluding salt/brackish marsh wetlands. (15) "Stem" means a woody seedling, sapling, shrub, or tree, no less than 10 centimeters in height. (16) "Urban" means an area that is either designated as an urbanized area under the most recent federal decennial census available at no cost at http://www.census.gov/ or is located within the corporate limits of a municipality. (17) "Zonal Ratio' means the mitigation ratio applied to impact amounts in the respective zones of the riparian buffer as set forth in Paragraph (e) of this Rule. (c) MITIGATION REQUIREMENTS. Buffer mitigation is required when one of the following applies: ATTACHMENT E (1) The applicant has received an authorization certificate for impacts pursuant to Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter and is required to perform mitigation as a condition of the authorization certificate; or (2) The applicant has received a variance pursuant to Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter and is required to perform mitigation as a condition of a variance approval. Any applicant covered under this Paragraph shall submit to the Authority a written mitigation proposal that calculates the required area of mitigation and describes the area and location of each type of proposed mitigation. The applicant shall not impact buffers until the Authority approves the mitigation plan and issues written approval. (d) AREA OF IMPACT. The Authority shall determine the area of impact in square feet to each Zone as defined by the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter of the proposed riparian buffer by adding the following: (1) The area of the footprint of the use impacting the riparian buffer; (2) The area of the boundary of any clearing and grading activities within the riparian buffer necessary to accommodate the use; and (3) The area of any ongoing maintenance corridors within the riparian buffer associated with the use. The Authority shall deduct from this total the area of any wetlands that are subject to and compliant with riparian wetland mitigation requirements under 15A NCAC 02H .0506 and are located within the proposed riparian buffer impact area. (e) AREA OF MITIGATION REQUIRED ON ZONAL MITIGATION RATIOS. The Authority shall determine the required area of mitigation for each Zone by applying each of the following ratios to the area of impact calculated under Parajaraph (d) of this Rule: Basin/Watershed Zone 1 Ratio Zone 2 Ratio Neuse River Basin (15A NCAC 02B .0233) 3:1 1.5:1 Catawba River Basin (15A NCAC 02B .0243) 2:1 1.5:1 Randleman Lake Watershed (15A NCAC 02B .0250) 3:1 1.5:1 Tar -Pamlico River Basin (15A NCAC 02B .0259) 3:1 1.5:1 Jordan Lake Watershed (15A NCAC 02B .0267) 3:1 1.5:1 Goose Creek Watershed (15A NCAC 02B .0607) 3:1A A The Goose Creek Watershed does not have a Zone 1 and Zone 2. The mitigation ratio in the Goose Creek Watershed is 3:1 for the entire buffer. (f) AREA OF MITIGATION REQUIRED ON LOCATIONAL MITIGATION RATIOS. The applicant or mitigation provider shall use the following locational ratios as applicable based on location of the proposed mitigation site relative to that of the proposed impact site. Locational ratios shall be as follows: Location Ratio Within the 12 -digit HULA 0.75:1 Within the eight -digit HUCB 1:1 Outside of the eight -digit HUCB 2:1 A Except within the Randleman Lake Watershed. Within the Randleman Lake Watershed the ratio is 1:1. B Except as provided in Paragraph (g) of this Rule. (g) GEOGRAPHIC RESTRICTIONS ON LOCATION OF MITIGATION. Mitigation shall be performed in the same river basin where the impact is located with the following additional specifications: (1) In the following cases, mitigation shall be performed in the same watershed where the impact is located: (A) Falls Lake Watershed, as defined in Rule .0275 of this Section; (B) Goose Creek Watershed, as defined in Rule .0601 of this Subchapter; (C) Randleman Lake Water Supply Watershed, as defined in Rule .0248 of this Section; (D) Each subwatershed of the Jordan Lake watershed, as defined in Rule .0262 of this Section; and (E) Other watersheds as specified in riparian buffer protection rules adopted by the Commission. (2) Buffer mitigation for impacts within watersheds with riparian buffer rules that also have federally listed threatened or endangered aquatic species may be done within other watersheds with the ATTACHMENT E same federally listed threatened or endangered aquatic species as long as the impacts are in the same river basin as the mitigation site. (h) MITIGATION OPTIONS FOR APPLICANTS. The applicant may propose any of the following types of mitigation: (1) Riparian buffer restoration or enhancement pursuant to Paragraph (n) of this Rule; (2) Payment of a compensatory mitigation fee to a compensatory buffer mitigation bank pursuant to Paragraph (i) of this Rule or payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to Paragraph 0) of this Rule. Payment shall conform to the requirements of G.S. 143-214.20; (3) Donation of real property or of an interest in real property pursuant to Paragraph (k) of this Rule; (4) Alternative buffer mitigation pursuant to Paragraph (o) of this Rule; or (5) Other buffer mitigation as approved by the Environmental Management Commission as a condition of a variance approval. (i) PURCHASE OF BUFFER MITIGATION CREDITS FROM A PRIVATE OR PUBLIC COMPENSATORY BUFFER MITIGATION BANK. Applicants who choose to satisfy some or all of their mitigation by purchasing mitigation credits from a private or public compensatory buffer mitigation bank shall meet the following requirements: (1) The compensatory buffer mitigation bank from which credits are purchased shall have available riparian buffer credits approved by the Division; (2) The compensatory buffer mitigation bank from which credits are purchased shall be located as described in Paragraphs (e), (f), and (g) of this Rule; and (3) After receiving a mitigation acceptance letter from the compensatory buffer mitigation bank, proof of payment for the credits shall be provided to the Authority prior to any activity that results in the removal or degradation of the protected riparian buffer. 0) PAYMENT TO THE RIPARIAN BUFFER RESTORATION FUND. Applicants who choose to satisfy some or all of their mitigation requirement by paying a compensatory mitigation fee to the Riparian Buffer Restoration Fund shall meet the requirements of Rule .0269 of this Section. Payment made to the NC Division of Mitigation Services (DMS) shall be contingent upon acceptance of the payment by the DMS. The DMS shall consider their financial, temporal, and technical ability to satisfy the mitigation request to determine whether they shall accept or deny the request. (k) DONATION OF PROPERTY. Applicants who choose to satisfy their mitigation requirement by donating real property or an interest in real property to fully or partially offset an approved payment into the Riparian Buffer Restoration Fund pursuant to Paragraph 0) of this Rule shall do so in accordance with 15A NCAC 02R.0403. (1) MITIGATION SITE REQUIREMENTS FOR APPLICANTS AND MITIGATION PROVIDERS. For each mitigation site proposed by an applicant or mitigation provider under Paragraphs (n) or (o) of this Rule, the Authority shall identify functional criteria to measure the anticipated benefits of the mitigation to the adjacent water. The Authority shall issue a mitigation determination that specifies the area, type, and location of mitigation and the water quality benefits to be provided by the mitigation site. All mitigation proposals shall meet the following criteria: (1) The location of the buffer mitigation site shall comply with the requirements of Paragraphs (f) and (g) of this Rule. In the Catawba watershed, buffer mitigation may be done along the lake shoreline as well as along intermittent and perennial stream channels throughout the watershed. (2) The mitigation proposal shall include a commitment to provide: (A) a perpetual conservation easement or similar preservation mechanism to ensure perpetual stewardship that protects the mitigation site's nutrient removal and other water quality functions; (B) a non -wasting endowment or other dedicated financial surety to provide for the perpetual land management and hydrological maintenance of lands and maintenance of structures as applicable; and (C) financial assurance in the form of a completion bond, credit insurance, letter of credit, escrow, or other vehicle acceptable to the Authority payable to, or for the benefit of, the Authority in an amount sufficient to ensure that the property is secured in fee title or by easement, and that planting or construction, monitoring and maintenance are completed as necessary to meet success criteria as specified in the approved mitigation plan. This financial assurance obligation shall not apply to the NC DMS. ATTACHMENT E (3) Diffuse flow of runoff shall be maintained in the riparian buffer. Any existing impervious cover or stormwater conveyances such as ditches, pipes, or drain tiles shall be eliminated and the flow converted to diffuse flow. If the applicant or mitigation provider determines that elimination of existing stormwater conveyances is not feasible, then they shall include a justification and shall provide a delineation of the watershed draining to the stormwater outfall and the percentage of the total drainage by area treated by the riparian buffer with the mitigation plan specified in Paragraph (n) or (o) of this Rule for Authority approval. During mitigation plan review and approval, the Authority may reduce credit proportionally. (4) Sewer easement within the buffer. If the proposed mitigation site contains a sewer easement in Zone 1, that portion of the sewer easement within Zone 1 shall not be suitable for buffer mitigation credit. If the proposed mitigation site contains a sewer easement in Zone 2, the portion of the sewer easement in Zone 2 may be suitable for buffer mitigation credit if: (A) the applicant or mitigation provider restores or enhances the forested buffer in Zone 1 adjacent to the sewer easement; (B) the sewer easement is required to be maintained in a condition that meets the vegetative requirements of the collection system permit; and (C) diffuse flow is provided across the entire buffer width. (5) The applicant or mitigation provider shall provide a site specific credit/debit ledger to the Authority at regular intervals as specified in the mitigation plan approval or mitigation banking instrument once credits are established and until they are exhausted. (6) Buffer mitigation credit, nutrient offset credit, wetland mitigation credit, and stream mitigation credit shall be accounted for in accordance with the following: (A) Buffer mitigation used for buffer mitigation credit shall not be used for nutrient offset credits; (B) Buffer mitigation credit shall not be generated within wetlands that provide wetland mitigation credit required by 15A NCAC 02H.0506; and (C) Buffer mitigation credit may be generated on stream mitigation sites as long as the width of the restored or enhanced riparian buffer meets the requirements of Subparagraph (n)(1) of this Rule. (m) RIPARIAN BUFFER MITIGATION UNITS. Mitigation activities shall generate riparian buffer mitigation units as follows: Mitigation Activity Square Feet of Mitigation Buffer Riparian Buffer Mitigation Units Generated Restoration Site 1 1 Enhancement Site 2 1 Preservation Site on Non -Subject Urban Streams 3 1 Preservation Site on Subject Urban Streams 3 1 Preservation Site on Non -Subject Rural Streams 5 1 Preservation Site on Subject Rural Streams 10 1 (n) RIPARIAN BUFFER RESTORATION SITE OR ENHANCEMENT SITE. Authority staff shall make an on- site determination as to whether a potential mitigation site qualifies as a restoration site or enhancement site as defined in Paragraph (b) of this Rule. Riparian buffer restoration sites or enhancement sites shall meet the following requirements: (1) Buffer restoration sites or enhancement sites may be proposed as follows: Buffer width (ft) Proposed Percentage of Full Credit Less than 20 0% 20-29 75% 30-100 100% 101-200 33% ATTACHMENT E (2) The applicant or mitigation provider shall submit a restoration or enhancement mitigation plan to the Authority for written approval. The plan shall demonstrate compliance with the requirements of this Paragraph and Paragraphs (1) and (m) of this Rule and shall also contain the following: (A) A map of the proposed restoration or enhancement site; (B) A vegetation plan that shall detail the activities proposed to ensure a final performance standard of 260 stems per acre at the completion of monitoring. The final performance standard shall include a minimum of four native hardwood tree species or four native hardwood tree and native shrub species, where no one species is greater than 50 percent of stems. Native hardwood and native shrub volunteer species may be included to meet the final performance standard of 260 stems per acre. The Authority may approve alternative vegetation plans upon consideration of factors, including site wetness and plant availability, to meet the requirements of this Part; (C) A grading plan (if applicable). The site shall be graded in a manner to ensure diffuse flow through the entire riparian buffer; (D) A schedule for implementation, including a fertilization and herbicide plan if applicable; and (E) A monitoring plan to document whether the site is expected to meet the final performance standards as defined in Part (n)(2)(B) of this Rule and other anticipated benefits to the adjacent water. The plan shall include a proposed schedule and method for monitoring the vegetative status of the restoration or enhancement site for five years, including the health and average stem densities of native hardwood tree or tree and shrub species that are to be counted toward the final performance standard. (3) Within one year after Authority approval of the mitigation plan, the applicant or mitigation provider shall present documentation to the Authority that the riparian buffer has been restored or enhanced unless the applicant or mitigation provider requests, and the Authority agrees in writing prior to that date, to a longer time period. (4) The applicant or mitigation provider shall submit written annual reports, unless an alternative schedule has been approved by the Authority during the mitigation plan approval, for a period of five years after completion of the activities identified in Part (n)(2)(B) of this Rule at the restoration site or enhancement site showing: (A) compliance with the monitoring plan approved pursuant to Part (n)(2)(E) of this Rule; and (B) that diffuse flow through the riparian buffer has been maintained. If the Authority determines that the native hardwood tree or tree and shrub species at the site are not expected to meet the final performance standards listed in Part (n)(2)(B) of this Rule, then the Authority may require that the applicant or mitigation provider replace trees or trees and shrubs as needed during that five-year period. If the Authority determines that diffuse flow through the buffer is not being maintained, then the Authority may require that the applicant or mitigation provider restore diffuse flow. If the Authority determines that the final performance standards listed in Part (n)(2)(B) of this Rule have not been achieved at the end of the five-year monitoring period, the Authority may require additional years of monitoring. The Authority shall make determinations referenced in this Subparagraph on a site specific basis based on the annual reports, any supplemental information submitted by the applicant or mitigation provider, or a site evaluation by the Authority. (o) ALTERNATIVE BUFFER MITIGATION OPTIONS. Alternative buffer mitigation options are detailed in this Paragraph. Any proposal for alternative buffer mitigation shall be provided in writing to the Division, shall meet the content and procedural requirements for approval by the Division, shall meet the requirements set out in Paragraphs (1) and (m) of this Rule and the requirements set out in the named Subparagraph of this Paragraph addressing that applicable alternative buffer mitigation option: (1) Retroactive Credit. Alternative buffer mitigation sites constructed and within the required monitoring period on the effective date of this Rule shall be eligible for use as alternative buffer mitigation sites. Alternative buffer mitigation sites that have completed monitoring and were released by the Division on or within the past 10 years of the effective date of this Rule shall be eligible for use as alternative buffer mitigation sites. All alternative buffer mitigation site proposals submitted under this Subparagraph shall meet the following: (A) A map or maps of the proposed alternative buffer mitigation site; ATTACHMENT E (B) Documentation of pre-existing conditions showing that the proposed alternative buffer mitigation site met the criteria to qualify for the applicable alternative buffer mitigation type identified in the applicable Subparagraph of this Paragraph; (C) Documentation of the activities that were conducted at the proposed alternative buffer mitigation site to meet success criteria identified in the applicable Subparagraph of this Paragraph; and (D) Documentation that the proposed alternative buffer mitigation site met the success criteria identified in the applicable Subparagraph of this Paragraph. These alternative buffer mitigation sites shall receive credit in accordance with the criteria set forth in Paragraph (m) and Subparagraph (n)(1) of this Rule. (2) Coastal Headwater Stream Mitigation. Wooded buffers planted along Outer Coastal Plain headwater stream mitigation sites may also be approved as riparian buffer mitigation credit if the site meets all applicable requirements of Paragraph (n) of this Rule. In addition, all success criteria specified in the approval of the stream mitigation site by the Division shall be met. The area of the buffer shall be measured perpendicular to the length of the valley being restored. The area within the proposed buffer mitigation site shall not also be used as wetland mitigation. (3) Buffer Restoration and Enhancement on Non -Subject Streams. Restoration or enhancement of buffers may be conducted on intermittent or perennial streams that are not subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter. These streams shall be confirmed as intermittent or perennial streams by Division staff certified per G.S. 143-214.25A using the Division publication, "Methodology for Identification of Intermittent and Perennial Streams and Their Origins (v.4.11, 2010)" available at no cost at http://portal.ncdenr.org/web/wq/swp/ws/401/waterresources/streamdeterminations. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule. (4) Preservation of Buffer on Non -Subject Streams. Preservation of buffers on intermittent or perennial streams that are not subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter may be proposed in order to permanently protect the buffer from cutting, clearing, filling, grading, and similar activities that would affect the functioning of the buffer. These streams shall be confirmed as intermittent or perennial streams by Division staff certified per G.S. 143-214.25A using the Division publication, "Methodology for Identification of Intermittent and Perennial Streams and Their Origins (v4.11, 2010)." The preservation site shall meet the requirements of Subparagraph (n)(1) of this Rule and the requirements set forth in 15A NCAC 02R .0403(c)(7), (8), and (11). The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent of the total area of buffer mitigation. (5) Preservation of Buffers on Subject Streams. Buffer preservation may be proposed on streams that are subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter in order to permanently protect the buffer from cutting, clearing, filling, grading, and similar activities that would affect the functioning of the buffer beyond the protection afforded by the existing buffer rules on sites that meet the definition of a preservation site. The preservation site shall meet the requirements of Subparagraph (n)(1) and the requirements set forth in 15A NCAC 02R .0403(c)(7), (8), and (11). The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent of the total area of buffer mitigation. (6) Enhancement of grazing areas adjacent to streams. Buffer credit at a 2:1 ratio shall be available for an applicant or mitigation provider who proposes permanent exclusion of grazing livestock that otherwise degrade the stream and riparian zone through trampling, grazing, or waste deposition by fencing the livestock out of the stream and its adjacent buffer. The applicant or mitigation provider shall provide an enhancement plan as set forth in Paragraph (n) of this Rule. The applicant or mitigation provider shall demonstrate that grazing was the predominant land use since the effective date of the applicable buffer rule. (7) Mitigation on ephemeral channels. For purposes of riparian buffer mitigation as described in this Part, an "ephemeral channel' is defined as a natural channel exhibiting discernible banks within a topographic crenulation (V-shaped contour lines) indicative of natural drainage on the 1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the U.S. Geologic Survey, or as seen on digital elevation models with contours developed from the most recent available LiDAR data, available at no cost at http://www.ncfloodmaps.com/lidar.com. Ephemeral channels only flow for a short period of time after precipitation in the drainage area and do not have periods of base flow ATTACHMENT E sustained by groundwater discharge. The applicant or mitigation provider shall provide a delineation of the watershed draining to the ephemeral channel. The entire area proposed for mitigation shall be within the contributing drainage area to the ephemeral channel. The ephemeral channel shall be directly connected to an intermittent or perennial stream and contiguous with the rest of the mitigation site protected under a perpetual conservation easement. The area of the mitigation site on ephemeral channels shall comprise no more than 25 percent of the total area of buffer mitigation. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule for restoration or enhancement. The proposal shall meet all applicable requirements of Subparagraph (0)(4) or (0)(5) of this Rule for preservation. (8) Restoration and Enhancement on Ditches. For purposes of riparian buffer mitigation as described in this Part, a "ditch" is defined as a man-made channel other than a modified natural stream that was constructed for drainage purposes. To be used for mitigation, a ditch shall meet all of the following criteria: (A) be directly connected with and draining towards an intermittent or perennial stream; (B) be contiguous with the rest of the mitigation site protected under a perpetual conservation easement; (C) stormwater runoff from overland flow shall drain towards the ditch; (D) be between one and three feet in depth; and (E) the entire length of the ditch shall have been in place prior to the effective date of the applicable buffer rule. The width of the restored or enhanced area shall not be less than 30 feet and shall not exceed 50 feet for crediting purposes. The applicant or mitigation provider shall provide a delineation of the watershed draining to the ditch. The watershed draining to the ditch shall be at least four times larger than the restored or enhanced area along the ditch. The perpetual conservation easement shall include the ditch and the confluence of the ditch with the intermittent or perennial stream, and provide language that prohibits future maintenance of the ditch. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule for restoration or enhancement. (9) Stormwater Treatment Options. All stormwater treatment options shall meet the following requirements: (A) Structural options already required by other local, state, or federal rule or permit cannot be used as alternative buffer mitigation credit, except to the extent such measure(s) exceed the requirements of such rule or permit. Stormwater Best Management Practices (BMPs), including bioretention facilities, constructed wetlands, infiltration devices and sand filters are all potentially approvable BMPs by the Division for alternative buffer mitigation credit. Other BMPs may be approved only if they meet the nutrient removal levels outlined in Part (o)(9)(B) of this Rule. Existing or planned BMPs for a local, state, or federal rule or permit may be retrofitted or expanded to improve their nutrient removal if this level of treatment is not required by other local, state, or federal rules. In this case, the predicted increase in nutrient removal may be counted toward alternative buffer mitigation credit; (B) Minimum treatment levels: Any structural BMP shall provide at least 30 percent total nitrogen and 35 percent total phosphorus removal as demonstrated by a scientific and engineering literature review as approved by the Division. The mitigation proposal shall demonstrate that the proposed alternative removes an equal or greater annual mass load of nutrients to surface waters as the buffer impact authorized in the authorization certificate or variance, following the calculation of impact and mitigation areas pursuant to Paragraphs (d), (e), and (f) of this Rule. To estimate the rate of nutrient removal of the impacted buffer, the applicant or mitigation provider may use the "NC Division of Water Quality — Methodology and Calculation for determining nutrient reductions associated with Riparian Buffer Establishment" available at no cost at http://portal.ncdenr.org/c/documentlibrary/get _file?uuid=55 c3 75 8 f-5 e27-46cf-823 7- 47f890d9329a&groupId=38364. The applicant or mitigation provider may propose an alternative method of estimating the rate of nutrient removal for consideration and review by the Division; (C) All proposed structural BMPs shall follow the Division's "2009 Stormwater Best Management Practice Design Manual" available at no cost at ATTACHMENT E http://portal.ncdenr.org/web/Ir/bmp-manual. If a specific proposed structural BMP is not addressed in this Manual, the applicant or mitigation provider shall follow Chapter 20 in this Manual for approval; (D) All structural options are required to have Division approved operation and maintenance plans; (E) All structural options are required to have continuous and perpetual maintenance and shall follow the Division's "2009 Stormwater Best Management Practice Design Manual"; (F) Upon completion of construction, the designer for the type of BMP installed shall certify that the system was inspected during construction and that the BMP was constructed in conformity with plans and specifications approved by the Division; (G) Removal and replacement of structural options: If a structural option is proposed to be removed and cannot be replaced on-site, then a structural or non-structural measure of equal or better nutrient removal capacity, as determined by calculations submitted to and approved by the Division, in a location as specified by Paragraphs (f) and (g) of this Rule shall be constructed as a replacement; (H) Renovation or repair of structural options: If the applicant, mitigation provider, or the Division determines that a structural option must be renovated or repaired, it shall be renovated to provide equal or better nutrient removal capacity than as originally designed; and (I) Structural options, as well as their operation and maintenance, are the responsibility of the landowner or easement holder unless the Division gives written approval for another responsible party to operate and maintain them. Structural options shall be located in recorded drainage easements for the purposes of operation and maintenance and shall have recorded access easements to the nearest public right-of-way. These easements shall be granted in favor of the party responsible for operating and maintaining the structure, with a note that operation and maintenance is the responsibility of the landowner, easement holder, or other responsible party. (10) Approval for other alternative buffer mitigation options. Other alternative riparian buffer mitigation options not specified within this Rule may be submitted to the Division for review and recommendation to the Environmental Management Commission on a case-by-case basis. Any proposal submitted under this Paragraph shall provide documentation or calculations to demonstrate that the proposed alternative mitigation option removes an equal or greater annual mass load of nutrients to surface waters as a riparian buffer. Upon completion of the Division's review, and prior to recommendation to the Environmental Management Commission, the Division shall issue a 30 -calendar day public notice through the Division's website and the DWRwetlands Listserve. Division staff shall present their recommendations, including comments received during the public notice period, to the Environmental Management Commission for a final decision. If approved by the Environmental Management Commission, the alternative buffer mitigation option may be proposed by other applicants and mitigation providers. History Note: Authority G.S. 143-214.1; 143-214.5; 143-214.7; 143-214.20; 143-215.3(a)(1); 143-215.6,4; 143- 215.6B; 143-215.6C; 143-215.8A; 143-215.8B; 143-282(c); 143B -282(d); S.L. 1998-221; S.L. 1999-329, s. 7.1; S.L. 2001-418, s. 4.(a); S.L. 2003-340, s. 5; S.L. 2005-190; S.L. 2006-259; S.L. 2009-337; S.L. 2009-486; S.L. 2014-95; Temporary Adoption Eff. October 24, 2014; Eff. November 1, 2015.