HomeMy WebLinkAbout20160225 Ver 2_Cane CreekUMBI for PN_20180209AGREEMENT TO ESTABLISH THE CANE CREEK UMBRELLA MITIGATION BANKING INSTRUMENT IN THE
HAW- RIVER SUBWATERSHED FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS
PURSUANT TO THE JORDAN LAKE NUTRIENT MANAGEMENT STRATEGY
TABLE OF CONTENTS
I.
PREAMBLE.........................................................................................................................................2
II.
LOCATION AND GEOGRAPHIC SERVICE AREA..................................................................................
2
III.
AUTHORITIES.....................................................................................................................................3
IV.
ESTABLISHMENT OF THE BANK PARCELS......................................................................................... 3
V.
BANK PARCEL DEVELOPMENT PACKAGE.........................................................................................5
Property Disposition & Long Term Management for Each Bank Parcel..........................................6
Financial Assurances for Each Bank Parcel......................................................................................6
VI.
POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL..............................................7
As -Built Report.................................................................................................................................7
Financial Assurances for each Bank Parcel......................................................................................7
Monitoring and Maintenance..........................................................................................................8
Contingency Plans/Remedial Actions..............................................................................................9
VII.
CALCULATION OF MITIGATION CREDITS FOR EACH BANK PARCEL................................................9
RiparianBuffer Credits.....................................................................................................................9
NutrientOffset Credits.....................................................................................................................9
VIII.
CREDIT RELEASE SCHEDULE............................................................................................................11
IX.
PROCEDURE FOR DEBITING AND CREDITING.................................................................................12
CreditLedger..................................................................................................................................12
CreditProcessing...........................................................................................................................12
Mitigation Credit Transfer Certificates..........................................................................................13
X.
BANK PARCEL CLOSURE..................................................................................................................13
XI.
GENERAL PROVISIONS FOR EACH BANK PARCEL...........................................................................14
ATTACHMENTS
A — Division of Water Resources Authority Document
B — Delivered Credit Yield Table for Jordan Sub Watersheds dated December 20, 2012
C — Rule Text 15A NCAC 0213 .0240
D — Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015)
E —Jordan Lake Buffer Ledger Template
F —Jordan Lake Nutrient Offset Ledger Template
Page 1 of 15
I. PREAMBLE
This Cane Creek Umbrella Mitigation Banking Instrument ("Instrument') regarding the establishment,
use, operation, and maintenance of three (3) Nutrient Offset and Buffer Mitigation Bank Parcels,
identified in Section II, to provide Jordan Lake Riparian Buffer mitigation credits ("Riparian Buffer
Credits") and Jordan Lake Nutrient Strategy nutrient load reduction credits ("Nutrient Offset Credits")
is made and entered into by and among Wildlands Holdings IV, 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 026.0240 and the Consolidated
Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachments C
and D).
The purpose of these Bank Parcels is:
A. To restore, enhancement and preserve riparian vegetation adjacent to streams and/or
agricultural ditches with the intent to improve water quality within the Haw River Sub -watershed
of the Jordan Lake Watershed.
B. To convert agricultural land uses within riparian areas adjacent to streams and/or agricultural
ditches into a dense, hardwood vegetated state with the intent to significantly reduce nutrient
loadings associated with agricultural practices into streams and ditches.
C. To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits
to third parties in the Haw River Sub -watershed 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 Credit for impacts due to
development activities.
B. The GSA for this instrument is limited to the Haw River Sub -watershed of Jordan Lake as defined
in rule 15A NCAC 02B .0262.
C. Sale or transfer of Riparian Buffer Credits shall be limited to the Haw River sub -watershed of the
Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262, unless otherwise authorized by
the DWR or delegated local government in accordance with 15A NCAC 02B.0295.
D. Sale or transfer of delivered Nutrient Offset Credits shall also be limited to the Haw River sub -
watershed of the Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262 and in
accordance with 15A NCAC 02B .0240.
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E. The following table provides site-specific details of each of the three Bank Parcels proposed under
this Instrument, all are within the Haw River Sub -watershed of Jordan Lake;
Table 1.0 — Site-specific Details
Bank Parcel
County
14 -Digit USGS
Project
Named Receiving
Primary Land Use/s
Name
Hydrologic Unit Code
Location
Stream
35.82258
South Fork Cane
South Fork
Chatham
03030002050050
Cattle Pasture
-79.38184
Creek
35.83092
South Fork Cane
Bethel Branch
Chatham
03030002050050
Cattle Pasture
-79.36687
Creek
Chatham
Pine Hill
35.84711
Soybean fields and
and
03030002050050
Pine Hill Branch
Branch
-79.38704
Pasture
Alamance
III. AUTHORITIES
A. The Bank Parcels 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 subsequently approved North Carolina statutes and rules
for the Jordan Lake Nutrient Sensitive Water Management Strategy.
C. The selling of mitigation credits generated from the Bank Parcels approved under this Instrument
shall be consistent with approved North Carolina statutes and rules for the Jordan Lake Nutrient
Sensitive Waters Management Strategy.
D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development
Packages (BPDP) to generate Riparian Buffer Credits and Nutrient Offset Credits shall be
consistent with North Carolina statutes and rules for the Jordan Lake Nutrient Sensitive Waters
Management Strategy that are in place at the time a complete BPDP is submitted to DWR.
IV. ESTABLISHMENT OF THE BANK PARCELS
A. In accordance with 15A NCAC 02B .0295 and 15A NCAC 02B .0240, DWR has provided a "Site
Viability Letter" for each of the Bank Parcels proposed under this Instrument. The Site Viability
Letter is not an approval of the site to generate mitigation credits, but is a preliminary review of
the Bank Parcel that details and confirms existing land use conditions, defines the riparian sites
(Enhancement Preservation, or Restoration), and identifies features (streams, ditches, ponds,
etc.) that meet general criteria to be suitable to generate mitigation credits. Table 2.0 below
outlines when a Site Viability Letter was issued by NCDWR for the mitigation sites proposed under
this Instrument:
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Table 2.0 — Site Viability Letter Details
Viability Letter
Viability Letter
Bank Parcel
NC DWR Site Visit
Received
Expiration Date
South Fork
August 9, 2017
August 16,
August 16, 2019
2017
Bethel Branch
August 9, 2017
August 23,
August 23, 2019
2017
September 20,
October 26,
October 26, 2019
Pine Hill Branch
2017
2017
B. A valid Site Viability Letter is required prior to submittal of each BPDP. Site Viability Letters will
either expire on the dates listed in the table above or upon submittal of an individual As -Built
Report to the DWR, whichever comes first. If a Site Viability Letter expires prior to submittal of a
complete BPDP as described in Section V to DWR, then the Sponsor must submit a formal request
to DWR for a new Site Viability Letter for that Bank Parcel.
C. The Bank Parcels 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
individual Bank Parcel for mitigation purposes or the sale or transfer of any associated credits.
The contents of each BPDP are provided in Section V.
D. These three (3) Bank Parcels are also proposed under the Cane Creek Umbrella Mitigation Banking
Instrument (Cane Creek UMBI), United States Army Corps of Engineers (USACE) Action ID #SAW -
2016 -00219 for stream and wetland mitigation. The Cane Creek UMBI for all three (3) sites and
the site-specific Mitigation Plan for the South Fork Site, were submitted to the IRT for review and
approval.
E. Each BPDP submitted under this instrument will be placed on public notice and made available
for public commenting for 15 calendar days.
Most of the Riparian Buffer Credits on these Bank Parcels will be generated along restored stream
channels that are proposed for stream mitigation. Stream Mitigation Plans will be submitted
under the Cape Fear 02 UMBI referenced in "D" in this section. Additionally, all activities
conducted within riparian buffers and adjacent riparian areas for purposes of generating Riparian
Buffer Credits will be conducted in concurrence with stream mitigation activities. In general, the
Bank Sponsor expects all buffer mitigation credits to be generated through restoration,
enhancement and/or preservation of DWR riparian buffers as they are defined in 15A NCAC 02B
.0267, and other riparian areas as allowed per 15A NCAC 02B .0295 (n) and (o). Riparian Buffer
Credits are only attainable if the width of the mitigated area is at least 20 feet as measured
perpendicular from top of banks.
G. The Bank Parcels are intended to provide Jordan Lake Riparian Buffer Credit as follows:
1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B
.0295 (b) adjacent to streams.
2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (b) along streams as
allowed in 15A NCAC 02B .0295 (o) by placing a conservation easement around riparian
areas.
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3. Enhancing riparian areas that are being grazed by cattle by installing fencing to
permanently exclude cattle from the streams and their associated riparian areas as
allowed in 15A NCAC 0213 .0295 (o)(6).
4. Diffused flow will be maintained onsite to the maximum extent practicable.
H. Nutrient Offset Credit may be achieved on these Bank Parcels through restoration of riparian
areas, where agriculture is the predominant land use. The width of the restoration area begins at
the most landward limit top of the bank or the rooted herbaceous vegetation and extends
landward a minimum of 50' and a maximum of 200 feet on all sides of the surface waters.
I. The Bank Parcels will provide Nutrient Offset Credit in accordance with 15A NCAC 02B .0240 and
are expected to provide Nutrient Offset Credit as follows:
1. Converting agricultural land uses within riparian areas to non-agricultural land uses.
2. Installing fencing to permanently remove livestock from the riparian areas and streams.
3. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B
.0295 (b) adjacent to streams where agriculture has been determined to be the
predominant land -use.
J. All three of the Bank Parcels submitted for review under this Instrument are anticipated to begin
construction of stream and wetland mitigation activities in Fall 2018.
V. BANK PARCEL DEVELOPMENT PACKAGE
A. All Bank Parcel Development Packages (BPDP) submitted under this Instrument shall be submitted
to DWR for review and must be approved by DWR prior to any construction on the Bank Parcel.
The BPDP must describe any changes that have occurred to the site between the date of the Site
Viability Letter and the date the BPDP is submitted to DWR. The BPDP shall include detailed
information consistent with the sections below concerning; 1) site location (14 -digit HUC is
required); 2) existing conditions with current photos; 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; 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. Any restoration and/or enhancement activities or proposed construction within the riparian
buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit or Nutrient
Offset Credit must be approved by DWR in writing prior to implementation. The failure of the
Sponsor to comply with this requirement may result in a revised or reduced credit release
schedule for that specific Bank Parcels. All restoration and enhancement activities must be
performed in concurrence with any stream or wetland mitigation activities and not before.
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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 for Each Bank Parcel
E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements
at the County Register of Deed's office in the county in which the Bank Parcel is located 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. A land trust must be certified under 501(c)(3) of
the Internal Revenue Code.
I. In the event 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 for Each Bank Parcel
J. Following approval of the BPDP for each Bank Parcel, the Sponsor shall provide
Performance/Maintenance Bonds from a surety company that is rated no less than an "A-" as
rated by A.M. Best, to construct the sites according to the approved BPDPs. 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 amount of each Performance Bond 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 a Performance Bond, the Sponsor may elect to construct the
project prior to the first credit release.
M. For each Bank Parcel, once DWR has released all credits for completion of all the items listed
below, then the Bank Sponsor will be released from its performance obligations under the
performance bond required in Item J and K of this section:
Page 6 of 15
1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded, Financial
Assurance Posted;
2. Mitigation Site Earthwork and Planting and Installation of Monitoring Devices Completed;
3. As -Built Report as described in Section VI has been received by DWR; and
4. DWR has submitted a written approval of the As -Built Report
N. To comply with this section, DWR must be the Obligee on all performance bonds.
VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL
As -Built Report
A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this
Instrument and corresponding BPDPs, to establish, maintain, and monitor Jordan Lake Riparian
Buffers or other riparian areas until Items B (1) and (2) of Section X have been satisfied.
B. When all stream and wetland mitigation activities have commenced, the Sponsor will submit an
as -built plan and report for each Bank Parcel separately within 30 calendar days after completing
the riparian buffer and nutrient offset mitigation activities. Each As -Built report will describe any
deviation from the approved BPDP and will document the following:
1. Buffer restoration and enhancement planting details, confirmation of fence installation,
invasive species control, monitoring device locations, vegetation plot locations, and photo
point locations.
2. Provide confirmation that the construction of all stream and wetland mitigation activities
have been completed.
3. Boundary Survey of the conservation easement area, signed and sealed by a licensed
surveyor, including an inventory 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 riparian restoration, enhancement
and preservation were performed and any deviations to the Bank Parcel from what was
approved in the BPDP.
5. Aerial map of the mitigation that was included in the approved BPDP.
6. As -built map of the stream and/or wetland mitigation areas.
Financial Assurances for each Bank Parcel
C. After completion of the restoration/construction on each Bank Parcel, 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 and As -Built Report. 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
Page 7 of 15
Sponsor's responsibility to confirm the surety company is still rated no less than an "A-" with each
annual bond renewals.
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. For each Bank Parcel, once DWR has released 100% of all credits for completion of all Bank Parcel
milestones described in Table 5 of Section VIII and in the corresponding BPDP, the Bank Sponsor
will be released from its performance obligations under the performance bond required in C and
D in this section.
F. To comply with this section, DWR must be the Obligee on all performance bonds.
Monitoring and Maintenance
G. The Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as DWR
determines that the performance standards 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.
A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height.
J. If the performance standards of the vegetation are not met, supplemental plantings may be
required. Supplemental plantings will be utilized until the required densities rave been achieved
and maintained for five years. Bank Parcel maintenance, such as ensuring diffused flow, managing
invasive species, and pest control will be included in the BPDP.
K. Monitoring Reports for Riparian Buffer Credit and Nutrient Offset Credit: Reporting criteria of
the vegetation 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;
2. A detailed narrative with supporting photos summarizing the condition of the Bank Parcel
along with any maintenance or remediation performed that year; and
Page 8 of 15
3. A map, survey, or other figures showing locations of sampling plots, permanent photo
points, and location of transects, Etc.; and
4. Monitoring data, including specific vegetation 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 lodgers; and
6. Corresponding verification letters from designated local governments upon request; and
7. Corresponding Mitigation Transfer Certificates upon request; and
8. Proof of performance bond renewal to cover the next monitoring year (when applicable).
Contingency Plans/Remedial Actions
L. In the event a Bank Parcel fails to achieve the performance criteria described in this Instrument
and in the approved BPDP, the Bank Sponsor shall develop necessary contingency plans in
coordination with the DWR and implement appropriate remedial actions for the Bank Parcels and
the Bank. Depending on the degree remedial actions required, the DWR may modify the
monitoring period.
VII. CALCULATION OF MITIGATION CREDITS FOR EACH BANK PARCEL
Riparian Buffer Credits
A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in
15A NCAC 0213 .0295 (m) and (n).
B. Riparian buffer restoration as defined in 15A NCAC O2B .0295 and performed on agriculture lands
within the Bank Parcels, may be used for either Riparian Buffer Credit or Nutrient Offset Credit
but not both. Riparian restoration on non -agriculture lands can only be used for Riparian Buffer
Credit.
C. Riparian buffer enhancement on these Bank Parcels, as described in 15A NCAC 02B .0295 (0)(6),
can only be used for Riparian Buffer Credit.
D. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (0)(5) and
defined in 15A NCAC 02B .0295 (b), can only be used for 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 15A NCAC 02H .0506".
Nutrient Offset Credits
G. The acreage of Nutrient Offset Credits on all three (3) Bank Parcels submitted under this
Instrument is determined by applying the applicable ratio as provided in 15A NCAC 0213 .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 banks.
Page 9 of 15
H. Nutrient Offset Credits cannot be achieved on the Bank Parcels in areas where preservation
activities are performed or where enhancement is proposed under 15A NCAC 02B .0295 (0)(6).
I. Nutrient Abatement of Restored Riparian Areas on Agricultural Lands: The Sponsor and DWR
agree to the following:
1. Pursuant to the Jordan Trading Rule Item 15A NCAC 02B .0273 (2)(a), load reductions
eligible for credit are only those that exceed reduction needs calculated by applying the
strategy sub -watershed percentage reduction goals as provided in 15A NCAC 02B .0262
(5). For the Haw River Sub -watershed, this requirement results in a reduction of credits
yielded per acre for restored riparian buffers when compared with the credit given in
other river basins. Table 3.0 below lists the generated credit per acre of restored riparian
buffer for the Haw -River Sub -watershed.
Table 3.0 — Generated credit yield for forest buffer restoration in the Haw Sub -watershed
Credit Generated (lbs. / 30 yrs. / ac.)
Jordan Lake Sub -watershed
Nitrogen
Phosphorus
Haw River
2,249.36
143.81
As required under Jordan Trading Item 15A NCAC 02B .0273 (2)(d)(i), the party seeking to sell
credits must account for differences in instream nutrient losses between the location of the
reduction need and excess loading reduction being delivered to the affected area of Jordan Lake.
Attachment B produced the delivered Jordan Lake Total Nitrogen (TN) and Jordan lake Total
Phosphorous (TP) credit yields per acre of buffer restoration by each Jordan Lake 14 -Digit HUC
sub -watershed.
1. Delivered credits are calculated by applying the delivery factors in Table 4.0 below and
the acreage of riparian restoration to the generated credit yields from Table 3.0 above.
The delivery factors for each of the three (3) Bank Parcels under this Instrument for Total
Nitrogen (TN) and Total Phosphorus (TP) are provided in Table 4.0 below using
Attachment B for reference. The amount of delivered credits for each Bank Parcel will be
detailed in the BPDP for each Bank Parcel.
Table 4.0 — Delivery Factors
Delivery
Factors
Bank Parcel
TN
TP
South Fork
71%
67%
Bethel Branch
71%
67%
Pine Hill Branch
71%
67%
The Bank Sponsor shall report the pounds of nitrogen and phosphorus credit per acre of
restored riparian buffer in each Bank Parcel's BPDP for both credits generated at the site of
the nutrient reduction activity and the credits delivered to Jordan Lake.
Page 10 of 15
K. The Sponsor and DWR agree the methodology and calculations for determining nitrogen and total
phosphorous reduction, associated with restoration of riparian areas as described in Section IV of
this Instrument, shall be fixed as part of the approval of this Instrument, with the fixed amount
not changing during the Bank Parcel Development or credit release schedule for each Bank Parcel
unless the viability letter for that Bank Parcel has expired.
VIII. CREDIT RELEASE SCHEDULE
A. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by
DWR, it is agreed that the mitigation credits associated with each individual Bank Parcel will
become available for sale to a third party in accordance with Credit Release Schedules.
B. A Credit Release Schedule shall be provided in each site-specific BPDP included in this Instrument
and shall outline Bank Parcel milestones expected to be completed for each mitigation bank.
Credit Release Schedules approved in the BPDP will be based on the completion of these Bank
Parcel milestones.
C. In general, Bank Parcel milestones and the percentage of credits most often released upon
completion are described in Table 5.0 below:
Table 5.0 - Credit Release Schedule for Nutrient Offset Credits at Tiger Swamp Mitigation Bank
% Credit Available
Task Project Milestone
for Sale
Instrument and BPDP Approved by DWR, Conservation Easement
1
Recorded* and Financial Assurance Posted
20
Mitigation Site Earthwork, Planting and Installation of Monitoring Devices
2
Completed
20
3
Monitoring Financial Assurance Posted and Approval of As -Built Report
10
Monitoring Report #1: Approved by the DWR** & financial assurance
4
renewed
10
Monitoring Report #2: Approved by the DWR** & financial assurance
5
renewed
10
Monitoring Report #3: Approved by the DWR** & financial assurance
6
renewed
10
Item 13(1) of Section X in this Instrument has been completed and approved
7 5
by DWR
No remaining credits will be released until the conservation easement has been assigned to an approved
land trust or stewardship
Monitoring Report #4: Approved by the DWR** & financial assurance
7
renewed
5
Monitoring Report #5: Approved by the DWR** and final site visit by DWR
9
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
D. DWR may modify Credit Release Schedules 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.
Page 11 of 15
DWR may consider a Credit Release Schedule for a Bank Parcel based on the extent of change
between current onsite conditions and proposed post construction conditions.
The Sponsor must initiate implementation of the approved BPDP for each site under this
Instrument in concurrence with all stream and/or wetland mitigation activities proposed in the
approved Mitigation Plans referenced in Item D of Section IV of this Instrument.
IX. PROCEDURE FOR DEBITING AND CREDITING
Credit Ledger
A. The Bank Sponsor shall maintain a credit ledger for each mitigation type for each Bank Parcel
under this Instrument: Credit ledgers shall provide the accounting for Riparian Buffer Credits in
square feet and acres, and Nutrient Offset Credits in pounds and acres.
B. Each credit ledger shall be submitted on a separate 8 % in. x 11in. spreadsheet with legible font
style and font size. All ledgers shall be submitted using the templates provided in Attachments E
and F of this Instrument or any updated versions to these templates as provided by DWR.
Credit Processing
C. Riparian Buffer Credits generated on these Bank Parcels will be used to provide mitigation for
authorized buffer impacts within the Haw River Sub -watershed of Jordan Lake in accordance with
15A NCAC 0213 .0295 (g).
D. Nutrient Offset Credits generated on these Bank Parcels will be used to offset nitrogen and
phosphorus nutrient loads within the Haw River Sub -watershed of Jordan Lake in accordance with
15A NCAC 0213 .0240.
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) on agricultural land, can be converted and transferred from
Riparian Buffer Credits to Nutrient Offset Credits and from Nutrient Offset Credit to Riparian
Buffer Credits upon written approval from DWR.
Riparian Buffer Enhancement and Preservation credits generated on these three (3) Bank Parcels
are not transferrable into nutrient offset credits.
G. The Bank Sponsor shall obtain written verification of buffer mitigation required from the
delegated local government in the Haw River Sub -watershed or DWR prior to debiting Riparian
Buffer Credit from the individual Bank Parcel.
H. The Bank Sponsor shall obtain written verification of nutrient offset need from a designated local
government in the Haw River Sub -watershed prior to debiting Nutrient Offset Credits from the
individual Bank Parcel.
All credit and debit transactions for each Bank Parcel under this Instrument shall be accurately
depicted in the credit ledgers. The Sponsor shall submit accurate and up-to-date credit ledgers
Page 12 of 15
for each Bank Parcel by the tenth (10th) of each month. At a minimum and only upon request,
DWR shall receive a hard copy of updated credit ledgers along with corresponding Mitigation
Credit Transfer Certificates and all corresponding letters from the designated local governments
or DWR where applicable once 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
J. 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;
1. Bank Details: (1) Sponsor Name, (2) Bank Parcel name as it appears in this Instrument and,
(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.
3. Project Details: (1) project name as it appears on DWR or local government permits
and/or certifications, (2) 14 -digit HUC, (3) the sub -watershed within the Jordan Lake, (4)
the 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 Butter Credits for this project.
K. If the DWR determines 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 its
responsibilities to the Bank Parcel and there are no mitigation credits left to sell.
B. Bank Parcel Closure shall commence only after all the following events have occurred;
1. Transfer or assign the conservation easement and all 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.
Page 13 of 15
XI. GENERAL PROVISIONS FOR EACH BANK PARCEL
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, or an authorized representative of
the Director of DWR to enter the property containing the Bank Parcel(s).
B. Amendments: This Banking Instrument maybe amended or modified only with written approval
of all signatory parties, including the USACE if it is applicable to the amendment.
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 the credits have been released in accordance with the credit
release schedule in the BPDP 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 the credits have been released in accordance with
the credit release schedule in Section VIII, 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. Issuance of Site Viability Letters,
3. BPDP review and approval of items listed in Section V of this Instrument,
4. As -Built report review and approval of items listed in Section VI of this Instrument,
5. Monitoring Report review and approval of items listen in Section VI of this Instrument,
6. Credit Ledger review and approval of items listen in Section IX of this Instrument,
7. Certificate review of items listed in Section IX of this Instrument and cross analysis to
credit ledgers and,
8. 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 this Instrument: This Instrument will become valid on the date of the last party's
signature.
Page 14 of 15
H. Specific Language of this 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.
I. 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.
1508.
J. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently and
voluntarily.
K. Notices: All Notices and other communication 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: Wildlands Holdings IV, LLC
1430 South Mint Street, Suite 104
Charlotte, NC 28203
If to DWR: NC Division of Water Resources
Attn: 401 & Buffer Permitting Branch
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.
WILDLANDS HOLDINGS IV, LLC
By:
Print)
Signature)
Title:
Date:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY — DIVISION OF WATER RESOURCES
By: (Print)
(Signature)
Title:
Date:
Page 15 of 15
Updated
Nutrient Offset Program & Buffer Mitigation Program 09/15/2015
UMBI Authorities for Wildlands Holdings IV, LLC effective 02/09/2018
ATTACHMENT A
Authorities pertaining to the Cane Creek Umbrella 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
Jordan Buffer and Jordan Water Sunnly Nutrient Strate
General Statutes and Session Laws:
G.S. § 143-214.5 Water Supply Watershed Protection)
S.L. 2013-395
S.L. 2012-201
S.L. 2012-200S.L. 2012-187
S.L. 2009-216
S.L. 2009-484
S.L. 2006-259 (Section 31(a))
S.L. 2005-190
S.L. 1999-329 (part of G.S. 143B-282)
Administrative Rules.
15A NCAC 2B .0262 Purpose and Scope
15A NCAC 2B .0263 Definitions
15A NCAC 2B .0264 Agriculture
15A NCAC 2B .0265 Stormwater Management for New Development
15A NCAC 2B .0267 Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers
15A NCAC 2B .0270 Wastewater Discharge Requirements
15A NCAC 2B .0271 Stormwater Requirements for State and Federal Entities
15A NCAC 2B .0272 Fertilizer Management
15A NCAC 2B .0273 Options for Offsetting Nutrient Loads
Jordan Water Supply Nutrient Strategy Updated
Delivered Credit Yield Table for Jordan Sub Watersheds 12/20/2012
Attachment B
Delivered credit yields for buffer acres in Jordan small watersheds.
Watershed ID
Jordan
Subwatershed
Delivery Factors
TN TP
TN Credit
(lbs/30yrs)
TP Credit
(lbs/30yrs)
03030002010010
Haw
25% 10%
562.34
14.38
03030002010020
Haw
37% 36%
832.26
51.77
03030002010030
Haw
44% 40%
989.72
57.52
03030002010040
Haw
49% 44%
1102.19
63.27
03030002010050
Haw
55% 48%
1237.15
69.03
03030002020010
Haw
15% 4%
337.40
5.75
03030002020020
Haw
22% 12%
494.86
17.26
03030002020030
Haw
48% 43%
1079.69
61.84
03030002020040
Haw
32% 33%
719.80
47.46
03030002020050
Haw
32% 32%
719.80
46.02
03030002020060
Haw
47% 42%
1057.20
60.40
03030002020070
Haw
54% 47%
1214.66
67.59
03030002030010
Haw
60% 56%
1349.62
80.53
03030002030020
Haw
44% 31%
989.72
44.58
03030002030030
Haw
25% 8%
562.34
11.50
03030002030040
Haw
42% 30%
944.73
43.14
03030002030050
Haw
64% 62%
1439.59
89.16
03030002030060
Haw
39% 19%
877.25
27.32
03030002030070
Haw
36% 18%
809.77
25.88
03030002030080
Haw
73% 64%
1642.04
92.04
03030002040010
Haw
30% 14%
674.81
20.13
03030002040020
Haw
28% 14%
629.82
20.13
03030002040030
Haw
71% 63%
1597.05
90.60
03030002040040
Haw
32% 15%
719.80
21.57
03030002040050
Haw
52% 50%
1169.67
71.90
03030002040060
Haw
54% 51%
1214.66
73.34
03030002040070
Haw
67% 60%
1507.07
86.28
03030002040080
Haw
53% 51%
1192.16
73.34
03030002040090
Haw
54% 51%
1214.66
73.34
03030002040100
Haw
75% 65%
1687.02
93.47
03030002040110
Haw
66% 60%
1484.58
86.28
03030002050010
Haw
74% 68%
1664.53
97.79
03030002050020
Haw
81% 74%
1821.98
106.42
03030002050030
Haw
42% 17%
944.73
24.45
03030002050040
Haw
80% 73%
1799.49
104.98
Page 1 of 2
Jordan Water Supply Nutrient Strategy Updated
Delivered Credit Yield Table for Jordan Sub Watersheds 12/20/2012
*Watershed is located in both the Upper New Hope (UNH) and Lower New Hope (LNH) Subwatersheds.
Page 2 of 2
Jordan
Delivery Factors
TN Credit
TP Credit
Watershed ID
Subwatershed
TN TP
(lbs/30yrs)
(lbs/30yrs)
03030002050050
Haw
71% 67%
1597.05
96.35
03030002050060
Haw
79% 73%
1777.00
104.98
03030002050070
Haw
78% 72%
1754.50
103.54
03030002050080
Haw
80% 73%
1799.49
104.98
03030002050090
Haw
79% 73%
1777.00
104.98
03030002050100
Haw
81% 75%
1821.98
107.85
03030002060010
Haw
81% 74%
1821.98
106.42
03030002060020
Haw
95% 97%
2136.90
139.49
03030002060030
Haw
88% 91%
1979.44
130.86
03030002060040
Haw
97% 98%
2181.88
140.93
03030002060050
Haw
92% 95%
2069.41
136.61
03030002060062
Haw
98% 99%
2204.38
142.37
03030002060070
UNH
40% 19%
867.70
27.32
03030002060080
UNH
59% 45%
1279.86
64.71
03030002060100
UNH
69% 63%
1496.79
90.60
03030002060110
UNH
61% 58%
1323.25
83.41
03030002060120
UNH
69% 63%
1496.79
90.60
03030002060140
UNH
85% 89%
1843.87
127.99
03030002060130
UNH
69% 63%
1496.79
90.60
03030002060160
LNH
85% 90%
1932.07
131.76
03030002060090*
UNH
92% 94%
1995.71
135.18
03030002060090*
LNH
92% 94%
2091.18
137.62
03030002060060*
UNH
94% 96%
2039.10
138.05
03030002060060*
LNH
94% 96%
2136.64
140.54
E033030002060150*
UNH
88% 91%
1908.94
130.86
030002060150*
LNH
88% 91%
2000.26
133.22
*Watershed is located in both the Upper New Hope (UNH) and Lower New Hope (LNH) Subwatersheds.
Page 2 of 2
ATTACHMENT C
15A NCAC 02B.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 now 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 D
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 saltibrackish 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 D
(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 Parnranh (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)
3:1^
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 HUC^
0.75:1
Within the eight -digit HUCB
1:1
Outside of the eight -digit HUCB
2:1
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 D
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 6) 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.
(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)
£(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 (fl)
Proposed
Percentage
of Full Credit
Less than 20
0%
20-29
75%
30-100
100%
101-200
33%
ATTACHMENT D
(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;
(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
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/document_library/get_file?uuid=55 c3758f-5e27-46cf-8237-
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 D
http://portal.ncdenr.org/web/Iribmp-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); 143-215.6A; 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.
ATTACHMENT E
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