HomeMy WebLinkAbout20180580 Ver 1_Wolfe MBI for PN_20180524Action History (UTC -05:00) Eastern Time (US & Canada)
Submit by Anonymous User 5/24/2018 11:55:27 AM (Message Start Event)
Approve by Montalvo, Sheri A 5/24/2018 12:47:27 PM (Initial Review- Sheri Montalvo)
• The task was assigned to Montalvo, Sheri A 5/24/2018 11:55 AM
D# * 20180580
Version* 1
Select Reviewer:* Katie Merritt
Mitigation Project Submittal - 5/24/2018
Type of Mitigation Project:*
r— Stream r Wetlands fJ Buffer rJ Nutrient Offset
(Select all that apply)
Is this a Prospectus, Technical Proposal or a a yes a No
New Site? *
Project Contact Information
......................................................................................................................
Contact Name:* Andrea Eckardt
Email Address:* aeckardt@Wldlandseng.com
Project Information
Existing (DWR) ID#:* 20180580
(nunbers only... no dash)
Existing Version:* 1
(nunbers only)
Project Name:* Wolfe Mitigation Bank Parcel
County:* Person
Document Information
Mitigation Document Type:*
Mitigation Bank Instrument
File Upload: Wolfe MBI Final 5.24.2018.pdf 1.59MB
Rease upload only one FDF of the conplete file that needs to be subnitted...
Signature
Print Name:* Andrea Eckardt
Signature:
moi`
1
AGREEMENT TO ESTABLISH THE WOLFE BANKING INSTRUMENT IN THE UPPER NEUSE RIVER BASIN
FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE FALLS LAKE
WATER SUPPLY NUTRIENT STRATEGY
TABLE OF CONTENTS
I. PREAMBLE ........................................................................................................................... 2
II.LOCATION AND GEOGRAPHIC SERVICE AREA ..................................................................... 2
III.AUTHORITIES ....................................................................................................................... 3
IV.ESTABLISHMENT OF WOLFE 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 ................................................................... 10
X. BANK PARCEL CLOSURE .................................................................................................... 12
XI.GENERAL PROVISIONS ...................................................................................................... 12
ATTACHMENTS
A – Division of Water Resources Authority Document
B – Buffer Restoration Ledger Template
C – Buffer Preservation Ledger Template
D –Nutrient Offset Ledger Template
E‐ Rule Text 15A NCAC 02B .0240
F – Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015)
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I. PREAMBLE
This Mitigation Banking Instrument (“Instrument”) regarding the establishment, use, operation, and
maintenance of the Wolfe Nutrient Offset and Buffer Mitigation Bank Parcel (“Bank Parcel”) to
provide Neuse Riparian Buffer mitigation credit (“Riparian Buffer Credits”) and Falls Lake Water Supply
nutrient load reduction credit (“Nutrient Offset Credits”) is made and entered into by and among
Wildlands Holdings V, 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 E and F).
The purpose of the Bank is:
A. To improve water quality of Byrd’s Creek and tributaries to Byrd’s Creek through the restoration
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 and Falls Lake Watershed respectively, 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 of the Upper
Falls Watersheds as defined in 15A NCAC 02B .0276.
C. The project is comprised of one parcel of land in Person County, NC, lying adjacent to an existing
conservation easement for the Byrds Creek Full‐Delivery Mitigation Site (DMS ID# 95020). The
Bank Parcel property is currently used for hay crop production is accessed from Wolfe Road in
Hurdle Mills, NC. The project is located at 36.24687 N and 79.04504 W.
D. Byrd’s Creek and unnamed tributaries to Byrd’s Creek are the receiving bodies of water for
stormwater runoff from this parcel. The Byrd’s 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 in which the Bank
Parcel is located unless otherwise authorized by the DWR or delegated local government in
accordance with 15A NCAC 02B .0295.
F. Sale or transfer of Nutrient Offset Credits shall be limited to the Falls Lake Watershed, as defined
in Rule 15A NCAC 02B .0276 and in accordance with 15A NCAC 02B .0282 (2).
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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 – and‐ for the Falls Lake Water
Supply Nutrient Strategy.
C. The selling of mitigation credits shall be consistent with approved North Carolina (“State”)
statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy –and‐ for the
Falls Lake Water Supply Nutrient Strategy.
D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development
Package (BPDP) to generate Riparian Buffer Credits and Nutrient Offset Credits shall be consistent
with North Carolina statutes and rules for the Neuse Nutrient Sensitive Waters Management
Strategy that are in place at the time a complete BPDP is submitted to DWR.
IV.ESTABLISHMENT OF WOLFE BANK PARCEL
A. In accordance with 15A NCAC 02B .0295 and 15 NCAC 02B .0240, DWR has provided a “Site
Viability Letter” for the Bank Parcel 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 (stream, ditches, ponds, etc.)
that meet general criteria to be suitable to generate mitigation credits. The Site Viability Letter
that applies to this Bank Parcel were issued by DWR on January 25,2018.
B. 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.
C. The BPDP will be placed on public notice and made available for public commenting for 15
calendar days.
D. Riparian Buffer Credit may be achieved through restoration, enhancement and preservation of
DWR riparian buffers along Byrd’s Creek and several unnamed tributaries on the Bank Parcel
according to 15A NCAC 02B .0295 (n) and (o). Buffer credits are only attainable if the width of the
restoration, enhancement and preservation site is at least 20 feet from the top of bank.
E. The Bank Parcel is intended to provide Neuse Riparian Buffer mitigation as follows:
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1.Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B .0295 (b)
adjacent to three (3) mitigated streams which are subject to the buffer protection rule
15A NCAC .0233.
2.Planting hardwood trees on an Enhancement Site, as defined in 15A NCAC 02B .0295(b)
along one stream which is subject to the buffer protection rule 15A NCAC .0233
3. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295(b) by placing a
conservation easement around riparian areas along streams as allowed per 15 NCAC 02B
.0295(o).
F. Nutrient Offset Credit may be achieved through restoration of the riparian areas adjacent to the
streams on this Bank Parcel where agriculture was determined by DWR to be the predominant
land use. The width of the restoration and enhancement areas will begin at fifty (50) feet from
the tops of the stream banks and will extend landward a maximum distance of two‐hundred (200)
feet on all sides of the surface waters.
G. The Bank Parcel is expected to provide Nutrient Offsets as follows:
1.Converting agricultural land uses within riparian areas to non‐agricultural land uses by
place a conservation easement around riparian areas along streams.
2.Planting hardwood trees on a Restoration and Enhancement Site, as defined in 15A NCAC
2B .0295 (b) adjacent to mitigation streams where agriculture has been determined by
DWR to be the predominant land use.
H. The total area of mitigation on the Bank Parcel is expected to be 23 acres.
V. BANK PARCEL DEVELOPMENT PACKAGE
A. The Wolfe Bank Parcel Development Package (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. T he BPDP shall include
detailed information consistent with the sections below concerning: 1) site location (8‐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, and
9) service area.
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 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
mitigation site.
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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
E. Prior to the release of any credits, the Sponsor shall acquire a permanent conservation easement
at the Person 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 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 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, and it is the
Sponsor’s responsibility to confirm that the surety company is still 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 all the items listed below, then the Bank
Sponsor will be released from its performance obligations under the performance bond required
in Item J‐L of this section:
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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 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 area and nutrient offset area. 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.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.
3.As‐built aerial map of the mitigation area showing where restoration, enhancement and
preservation were performed and any deviations to the Bank Parcel from what was
approved in the BPDP.
4.Aerial map of the mitigation 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 still rated no less than an “A‐” with each annual bond renewal.
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.
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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” of this Section.
Monitoring and Maintenance Reports
F. 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.
G. Performance Standards for Vegetation: Native hardwood trees should be planted at a density
sufficient to provide 260 stems per acre after five years. A minimum of four (4) native hardwood
trees 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.
H. A “stem” means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height.
I. 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.
J. Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit: Reporting criteria of the
riparian buffer restoration and enhancement 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 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
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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
K. 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 (o),
defined in 15A NCAC 02B .0295(b) and performed on agriculture lands within the Bank Parcel,
may be used for either Riparian Buffer Credit or Nutrient Offset Credit, but not both.
C. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295(o) and
defined in 15A NCAC 02B .0295(b), can be used for only Riparian Buffer Credit.
D. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer
credits per one acre.
Nutrient Offset Credits
E. All Nutrient Offset Credits will be determined by including the applicable ratio as provided in 15A
NCAC 02B .0295 (m) for a Restoration and Enhancement Site. All riparian areas proposed for
nutrient offset credits must be a minimum of fifty (50) feet from the top of the stream bank.
F. Nutrient Offset Credits cannot be achieved through the preservation activities performed on this
Bank Parcel.
G. Nutrient Abatement of Restored Riparian Area: The Sponsor and DWR agree:
1.The pounds of nitrogen offset per acre of restored or enhanced riparian areas shall be
2,273.02 lbs/acre.
2.The pounds of phosphorus offset per acre of restored or enhanced riparian areas shall be
146.4 lbs/acre.
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H. The Sponsor and DWR agree that 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 the Bank
Parcel unless the viability letter for that Bank Parcel has expired.
This space left blank intentionally, do not add text to this space.
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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 party 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
Monitoring Financial Assurance Posted and Approval of As‐Built
Report 10
4
Monitoring Report #1: Approved by the DWR and financial
assurance renewed** 10
5
Monitoring Report #2: Approved by the DWR and financial
assurance renewed** 10
6
Monitoring Report #3: Approved by the DWR and 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 and 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
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A. The Bank Sponsor shall maintain four credit ledgers, if applicable, for the Bank Parcel under this
Instrument: one accounting for buffer restoration and enhancement credits in square feet and
acres, one accounting for buffer preservation credits in square feet and acres, one accounting for
nitrogen nutrient offset credits in pounds and acres, and one accounting for phosphorus nutrient
offset credits in pounds and acres.
B. Each credit ledger shall be submitted on a separate 8 ½in X 11in spreadsheet with legible font style
and font size. All ledgers shall be submitted using the templates provided in Attachments C and
D of this Instrument or any updated versions to these templates as provided by DWR.
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 Upper and Lower Falls Watersheds. Impacted areas in the Upper Falls
Watershed can only mitigate in the Upper Falls Watershed. Impacted areas in the Lower Falls
Watershed can mitigate in any portion of the Falls Watershed per 15A NCAC 02B .0282.
E. Available mitigation credits (credits that have been released by DWR but not sold by the Sponsor)
that are generated from riparian buffer restoration or enhancement, as defined in 15A NCAC 02B
.0295 (b) and described in 15A NCAC 02B .0295 (n) on agricultural lands, 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 written verification of nutrient offset need from a designated local
government in 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 a delegated local
government in the Neuse River Basin or DWR prior to debiting Riparian Buffer Credits from the
Bank Parcel.
H. 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
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.
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Mitigation Credit Transfer Certificates
I. 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, (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) 12‐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.
J. 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:
1. 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
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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 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 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.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 listed in Section VI of this instrument.
6.Credit Ledger review and approval of items listed in Section IX of this instrument.
7.Certificate review of items listed in Section IX of this instrument and cross analysis to
credit ledgers.
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 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: T o the extent that specific language
in this document changes, modifies, or deletes terms and conditions contained in those
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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.
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 a re 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: 5605 Chapel Hill Road, Suite 122
Raleigh, NC 27607
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.
Wildlands Holdings V, LLC
By: awn D. Wilkerson (Print)
km,V (Signature)
Title: Manager
Date: 4/18 a A 12
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF WATER RESOURCES
Title:
Date:
15
(Print)
(Signature)
Updated
Nutrient Offset Program & Buffer Mitigation Program 4/13/2016
Authorities for MBI
ATTACHMENT A
Authorities pertaining to the Wolfe 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 Falls Lake Nutrient Strate
General Statutes and Session Laws:
G.S. § 143-214.5 Water Supply Watershed Protection
S.L. 2012-187
S.L. 2011-394
S.L. 2009-486
S.L. 1998-221 (Part I)
Administrative Rules:
15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers
15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers
15A NCAC 02B .0275 Purpose and Scope
15A NCAC 02B .0276 Definitions
15A NCAC 02B .0277 Stormwater Management for New Development
15A NCAC 02B .0278 Stormwater Management for Existing Development
15A NCAC 02B .0279 Wastewater Discharge Requirements
15A NCAC 02B .0280 Agriculture
15A NCAC 02B .0281 Stormwater Requirements for State and Federal Entities
15A NCAC 02B .0282 Options for Offsetting Nutrient Loads
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^ĂůĞͬZĞůĞĂƐĞĂƚĞWƵƌĐŚĂƐĞƌŽƌйƌĞĚŝƚZĞůĞĂƐĞWƌŽũĞĐƚEĂŵĞ'ŽǀΖƚZĞƋƵŝƌŝŶŐ^ƋƵĂƌĞ&ĞĞƚ ĐƌĞƐ ^ƋƵĂƌĞ&ĞĞƚ ĐƌĞƐ ^ƋƵĂƌĞ&ĞĞƚ ĐƌĞƐ Ͳ Ͳ Ͳ Ͳ Ͳ Ͳ Ͳ Ͳ Ͳ Ͳ ͲͲ Ͳ Ͳ ͲͲͲͲdŽƚĂůƐͲͲͲͲͲ ͲƌĞĚŝƚƐZĞůĞĂƐĞĚͬǀĂŝůĂďůĞƚŽĂŶŬƌĞĚŝƚƐĞďŝƚĞĚͬ^ŽůĚ&ƌŽŵĂŶŬƵĨĨĞƌƌĞĚŝƚĂůĂŶĐĞĂŶŬEĂŵĞ;,hϬϯϬϮϬϮϬϭͿƵĨĨĞƌ PreservationƌĞĚŝƚ>ĞĚŐĞƌĂƚĞ>ĂƐƚhƉĚĂƚĞĚ͗tZ ĂŶŬWĂƌĐĞůWƌŽũĞĐƚη͗dŽƚĂůƌĞĚŝƚƐZĞůĞĂƐĞĚdŽĂƚĞ͗ͺͺͺƐƋ͘Ĩƚ͘ATTACHMENT C
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ATTACHMENT D
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 nu trient off set pay ments 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 op tion toward fulfillment of nu trient 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 ca taloguing unit be low the
Falls wa tershed, as de signated by the US Geo logical Survey, may be offset on ly 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 e ligible for credit shall no t include reductions u sed 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 o ther parties shall agree that once credits are e stablished 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 de tail to support e stimates 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 o ther adjustments requ ired under rules identified
in Paragraph (a) of this Rule;
(C) Define the duration of load reductions, and provide a con servation 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 E
(D) Identify the property owner and parties responsible for obtaining all permits and other
authorizations needed to establish the proposed measure, for con structing 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 p lan 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 a spects of e stablishment and initial perfor mance prior to the
release of any credits, and criteria for successful completion; and
(F) Provide a monitoring and maintenance plan designed to achieve successful co mpletion, that
commits to annual reporting to the Division until success is achieved, that recognizes the
Division's au thority 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 e stablish and revise nutrient offset rates as set ou t in Rule .0274 of this Section. Off set pay ments
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 off set fee s 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 purcha se nutrient off set cred it fro m a par ty 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 o therwise demonstrate to the permitting authority that such credit is no t ava ilable 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 f inancial, temporal and technical ab ility 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 deve lopment stormwater permitting requirements shall prov ide
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 reduc tion requirements shall submit proof of offset cred it 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 a llocations, contingent upon rece iving a letter of commitment fro m 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 purcha se on payment in full for the additional a llocation. Off set re sponsibility 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.
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-
6DC7-4EC3-88A9-03E6B7D55653} 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 F
(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 propos al 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 Paragraph (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 HUCA 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
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 (j) 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.
(j) 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 (j) of this Rule shall do so in accordance with 15A NCAC 02R .0403.
(l) 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) 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%
(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 (l) 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 Par t (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
(l) 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 mitiga tion
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 (o)(4) or (o)(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=55c3758f-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
http://portal.ncdenr.org/web/lr/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 determine s 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.