20090866 Ver 1_Mitigation Bank Instrument_20090807

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WILDLANDS' NEUSE RIVER RIPARIAN BUFFER
AND NUTRIENT MITIGATION UMBRELLA BANK
BANKING INSTRUMENT
1. PREAMBLE
This Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument, regarding the
establishment, use, operation, and maintenance of the Wildlands' Neuse River Riparian Buffer
and Nutrient Mitigation Umbrella Bank ("Bank") is made and entered into by and among
Wildlands, Inc (Wildlands) and the North Carolina Department of Environment and Natural
Resources - Division of Water Quality (NCDWQ). The Bank will be established to serve
riparian buffer and nutrient mitigation needs within the Neuse River basin. The Bank is to be
populated with "Parcels" (meaning individual tracts of land subject to a conservation easement
or restrictive covenants), and the Parcels shall be located in the service area within the specific
USGS Hydrologic Unit Code (HUC) subset of the Neuse River basin.
The purpose of the Bank is to improve water quality through the restoration of riparian buffer
habitat, enhancement of existing stormwater best management practices (BMPs), and installation
of new stormwater BMPs within the Neuse River basin in the State of North Carolina, and to
provide mitigation for buffer impacts and development requiring nutrient offset payments within
the Neuse River basin, and to sell any resulting buffer and nutrient credits to third parties.
II. AUTHORITIES
The Bank will be used to provide nitrogen offset and riparian buffer mitigation in accordance
with the requirements of.
15A NCAC 2B .0233 (Neuse Buffer Rule);
15A NCAC 213.0234 (Wastewater Discharge Requirements);
15A NCAC 2B.0235 (Basinwide Stormwater Requirements);
15A NCAC 2H.0506(h) (NC Stream, Wetland and Buffer Mitigation);
15A NCAC 2B .0240 (Nutrient Offset Payments), under such authority as established in
SL 2007-438 and any amendments thereto.
All activities shall be consistent with rules adopted by the Environmental Management
Commission and all other applicable authorities.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Each Parcel to be included in the Bank shall require a Bank Parcel Development Package
(BPDP), including detailed information concerning site location, existing conditions,
proposed restoration activities and / or stormwater best management practice (BMP)
activities, monitoring and maintenance plans, success criteria, finan
n m A U G ? 2009
DEW - VVA i tk QUALITY
WETLANDS AND STORMWATER BRANCH
associated buffer mitigation and / or nutrient credit calculations (to include credit
generation, service area, and accounting as appropriate for each. regulatory authority cited
above). Additional Parcels may be added to the Bank at any time; however, no credits
may be released for mitigation purposes until the specific BPDP for a given Parcel is
approved by NCDWQ. Each specific BPDP shall be based upon the criteria established
by this Banking Instrument.
B. Service Area. Credits generated by Bank Parcels shall only be available for sale within
the eight-digit USGS Hydrologic Unit Code (HUC) in which the Bank Parcel is located.
C. Wildlands agrees to perform all necessary work, in accordance with the provisions of this
Banking Instrument, to establish or enhance, maintain and monitor riparian buffer areas,
to enhance, maintain and monitor existing stormwater BMPs, or to establish, maintain
and monitor new stormwater BMPs until it is demonstrated to the satisfaction of
NCDWQ that the restored property and/or the enhanced or established BMP(s) complies
with all conditions contained herein, or until all credits are sold, whichever is later, but
for a minimum of five (5) years. One or all of the methods for buffer and nutrient
mitigation credits (buffer restoration/enhancement, enhancement of existing BMPs, or
establishment of new BMPs) may be used on a given Parcel as defined within that
Parcel's specific BPDP.
D. Wildlands will obtain all appropriate environmental documentation, permits or other
authorizations needed to establish and maintain the Parcels. This Banking Instrument
does not qualify or substitute for such authorization.
E. Financial Assurance Requirements. Following approval of a BPDP for a given Parcel,
Wildlands shall provide a Letter of Credit, or alternately a Performance Bond from a
surety that is rated no less than an "A-" as rated by A.M. Best. The Letter of Credit or
Bond amount shall be two times the estimated cost for implementation of the restoration
plan and/or stormwater management plan included in the BPDP. After completion of
construction or implementation of the BPDP, a Monitoring Bond or Letter of Credit will
be substituted for the Performance Bond or Letter of Credit. The Sum of said Monitoring
Bond or Letter of Credit shall be for two times the estimated cost to implement the
monitoring and maintenance plan. For buffer restoration, the Monitoring Bond or Letter
of Credit shall be in effect for a period of five years, and shall decline in total amount
each year by an amount equal to twenty percent (20%) of the original sum upon the
submittal of each scheduled monitoring report to NCDWQ. For construction or
renovation of BMPs, the Monitoring Bond or Letter of Credit shall be in effect for a
period of one year, and shall be released in full upon completion of the one year
monitoring and maintenance requirements of the specific BMP Operations and
Maintenance manual.
F. Real Estate Provisions. As a condition of NCDWQ's certification of any credits,
Wildlands shall record in the appropriate County Register of Deeds a permanent
conservation easement or restrictive covenants to the deed(s) on the respective Parcel to
provide protection to the restored riparian buffer and/or the enhanced or established
BMP(s) from activities that would impair its ability to provide nutrient abatement to
surface waters. The form of the conservation easement or restrictive covenants shall be
consistent with the standards employed by the State of North Carolina in the protection of
restored riparian buffers and/or stormwater BMPs and shall be approved by NCDWQ
prior to the certification of any credits. Wildlands shall not grant additional easements,
rights of way, or any other property interest in or to the project areas without the written
consent of NCDWQ or its designee. In the case of a conservation easement, Wildlands
will hold the easement until all credits are released from the Parcel. At the conclusion of
Parcel's activities, the conservation easement(s) may be permanently transferred to. a
NCDWQ approved land trust, non-profit group, or governmental entity to be held in
perpetuity.
G. Operation and Maintenance Agreements: Prior to the release of any credits, Wildlands
shall provide DWQ with the necessary operation and maintenance agreements for the
newly constructed or enhanced stormwater BMP's. These agreements shall be consistent
with the standards adopted by DWQ and shall be approved by DWQ prior to the
certification of any credits.
H. As-Built Reports. Wildlands shall submit an as-built drawing and (?) report for each
Parcel within 30 days after completing the establishment of the buffer and/or completion
of the enhancement or establishment of BMP(s). The as-built report will shall describe in
detail any substantive deviation from the BPDP. In addition, the as-built report shall
document finished grades, planting details, surface and groundwater elevations, and
boundary survey of the easement area, monitoring device locations, photo point locations,
and physical attributes of the BMP(s) as defined as appropriate within the specific BPDP.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions. Wildlands agrees to perform all necessary work to operate and
maintain the Parcel(s) consistent with the maintenance criteria established in this
instrument. Wildlands shall continue such operation and maintenance activities until all
credits are sold or all success criteria are met and the Parcel is closed. Deviation from the
approved BPDP shall be subject to review and shall require written approval by NCDWQ
or its designee.
B. Monitoring Provisions. Wildlands agrees to perform all necessary work to monitor the
Bank to demonstrate compliance with the Success Criteria established in this Banking
Instrument and with site-specific conditions of the BPDP until such time that DWQ
determines that the success criteria have been met.
C. Vegetative Success Criteria. Buffer Vegetative Success Criteria will be based upon the
density and growth of character tree species. "Character Trees" are defined as planted or
volunteer species identified from a survey of local vegetation on less degraded sections of
the specified stream and from reference literature that details native species. A list of
Character Tree species for each Parcel shall be detailed in that Parcel's BPDP. Vegetative
Success Criteria must be based upon guidelines set forth in the Guidelines for Riparian
Buffer Restoration prepared by the North Carolina Ecosystem Enhancement Program (or
subsequent updated versions of the Guidelines in place at the date of acceptance of a
BPDP), and shall be defined as a success rate equivalent to 320 stems per acre surviving
the monitoring period. Natural recruitment of desirable character tree species shall be
counted towards the survival and success rate of the restored site.
If vegetative success criteria are not achieved based on acreage density calculations from
combined monitoring plots over the entire restoration area, or if an inspection of a buffer
restoration site indicates that portions of the site do not have sufficient stem densities or
are otherwise deficient, supplemental planting shall be performed with tree species
approved by NCDWQ. Supplemental planting shall be performed as needed until the
required densities have been achieved after five (5) years. No quantitative measurements
of herb assemblages will be required to meet the vegetative success criteria. The quantity
of monitoring plots shall be determined in accordance with The Carolina Vegetative
Sampling Protocol (Levels I & II), such that no more than 2 percent of any one Parcel is
encompassed in monitoring plots (see BPDP).
D. Stormwater BMP Success Criteria. BMP success criteria for a given Parcel will be based
upon the specific type and character of each individual BMP. Each BPDP utilizing a
BMP must establish the specific design criteria for that particular BMP and an
appropriate operations and maintenance schedule to be followed by Wildlands for a
period of one year after completion and submission to DWQ of the as-built report for the
BMP. For purposes of this agreement, the design criteria shown in the North Carolina
Division of Water Quality Stormwater Best Management Practices Manual (October
2007 or as amended) and the approved operation and maintenance agreement, described
in III-G of this agreement shall be the basis for judging the success of a specific device.)
E. Monitoring Reports. Wildlands shall submit to NCDWQ an annual monitoring report, no
later than December 31" each year for five consecutive years after the first full growing
season, describing the conditions of each Bank Parcel and relating those conditions to the
success / approved design criteria. Reports will must be submitted annually and shall
contain the following:
I . A US Geological Survey Map showing the location of the Banh Parcel;
2. A detailed narrative summarizing the condition of the Bank Parcel and all regular
maintenance activities;
3. Appropriate topographic maps showing location of sampling plots, permanent photo
points, location of transects, etc.;
4. Monitoring data, including specific vegetative counts and photographs; and
5. A copy of the Bank credit/debit ledger for the Parcel.
F. Contingency Plans/Remedial Actions. In the event the Bank fails to achieve the success
criteria described in this instrument for a given Parcel, Wildlands shall develop necessary
contingency plans and implement appropriate remedial actions for the Bank in
coordination with NCDWQ or its designee. Depending on the degree of remedial actions
required, NCDWQ reserves the authority to extend or re-start the monitoring period as
necessary to demonstrate site success.
If NCDWQ determines that the Bank is operating at a deficit (i.e., Wildlands is selling or
transferring credits not yet available), the sale/transfer of credits shall immediately cease
and NCDWQ, in consultation with Wildlands, will determine what remedial actions are
necessary to correct the situation.
V. OPERATION OF BANK
A. Nitrogen Abatement of Restored Riparian Buffer: Wildlands and NCDWQ agree that the
pounds of nitrogen offset per acre of restored riparian buffer at the time of establishment
of this Banking Instrument is two thousand two hundred seventy three (2273 lbs/acre). If
NCDWQ adopts a different nitrogen offset value per acre based on updated scientific
data supporting this change, this new offset value shall apply to future individual Bank.
Parcel Development Packages as they are approved. The offset value approved for each
Parcel shall not negatively change during the development, monitoring and credit release
schedule of each Parcel. However, should the nitrogen offset value change in a positive
direction; Wildlands reserves the right to amend the current Banking Instrument to reflect
this increased value.
B. Nutrient Abatement of Enhanced J Installed BMP(s). Wildlands and NCDWQ agree that
the pounds of nitrogen available for credit release shall be that determined and
established by the BMP design criteria of each specific BPD.P. Design criteria for
establishment and enhancement of BMPs shall be in accordance with the specific BPDP
described in Section IV-D of this Banking Instrument.
C. Establishment and Release of Credits. Within thirty (30 days of Upon submittal of all
appropriate documentation by Wildlands, and subsequent approval by NCDWQ or its
designee, it is agreed that the mitigation credits associated with this Bank will become
available for sale to a third party in accordance with the following schedule.
Table 1- Credit Release Schedule

Task
Project Milestone Percent
Credit
Available

1 Bank Parcel Development Package Approved by NCDWQ, Conservation
Easement or Restrictive Covenants Recorded and Letter of Credit and/or
Performance Bond provided.
20
2 Mitigation Site Earthwork, Planting and Installation of Monitoring Devices
Completed, installation or enhancement of BMP(s) 20
3 Approval of As-Built Report and Letter of Credit and/or Monitoring Bond
provided. 10
4 Submission of Monitoring Report #I to NCDWQ (meets success criteria) 10
5 Submissiont of Monitoring Report #2 to NCDWQ (meets success criteria) 10
6 Submissiont of Monitoring Report #3 to NCDWQ (meets success criteria) 10
7 Submission of Monitoring Report #4 to NCDWQ (meets success criteria) 10
8 Submission of Monitorin Report #5 to NCDWQ (meets success criteria) 10
Total 100%
Table II - Credit Release Schedule for BMP Construction and Retrofits
% of Total
Task Project Milestone Credit
Available for
Release
Bank Parcel Development Package Approved by NCDWQ, Conservation
1 Easement or Restrictive Covenants Recorded and Letter of Credit and/or 20
Performance Bond provided
Installation and/or enhancement of BMPs per• in accordance with approved
2 BPDP, Operation and Maintenance Agreement for one year period approved by 20
NCDW
Approval of As-Built Drawing and Report. Letter of Credit and/or Performance

'
Bond provided for one year maintenance requirements 20
4 Submission of one year monitoring report to NCDWQ (meets success criteria) 40
Total 100%
D. Projects Eligible to Use the Bank. Projects eligible for utilization of the credits are those
requiring authorization under the requirements of 15A NCAC 2B .0233 (Neese Buffer
Rule), 15A NCAC 2B .0234 (Wastewater Discharge Requirements), 15A NCAC 2B
.0235 (Basinwide Stormwater Requirements), and 15A NCAC 02B .0242 (Mitigation
Program for Protection and Maintenance of Existing Riparian Buffer); 15A NCAC 2H
.0506(h) (NC Stream, Wetland and Buffer Mitigation), and 15A NCAC 2B .0240
(Nutrient Offset Payments) under such authority as established in SL 2007-438 and any
amendments thereto provided such use has met all applicable requirements and is
authorized by the appropriate authority and any others as deemed appropriate by
NCDWQ.
E. Procedure for Debiting or Crediting the Bank. Wildlands shall maintain two credit
ledgers: one accounting for buffer mitigation credits (in square feet), which are generated
by that portion of the buffer from regulatory top of bank to 50 feet from regulatory top of
bank along "blue-line" streams; and one accounting for nitrogen offset credits, which are
generated by that portion of the buffer more than 50 feet from regulatory top of bank
along "blue-line" streams, more than 50 feet from the installation and/or enhancement of
BMPs, and areas that are less than or equal to 50 feet in width along agricultural ditches
determined not to be "blue-line" streams. The ledgers shall record the area of available
buffer for each Parcel and all associated debits and credits. All debits or credits shall be
entered in the ledger and notification provided to DWQ within thirty (30) days of each
transaction. Credits e-an may be converted and transferred from buffer mitigation to
nitrogen offsets, but the opposite shall not occur. No debits or credits to the ledger shall
be made without the written concurrence of NCDWQ or its designee and Wildlands. All
written concurrences shall be kept in the ledger. Key documents are the Credit
Reservation Letter confirming that the credits are available for transfer and debiting and
have been legally contracted and reserved for a specific project. The final document for
verification and transfer is the Transfer Certificate that issued to DWQ along with the
updated credit ledger after the purchaser's permit application is approved and the
permittee fully funds the purchase of credits. The Transfer Certificate will be used by
DWQ to verify that the permittee has met the mitigation requirements of the respective
permit.
The accounting and tracking presented in the ledgers and overseen by NCDWQ must be
sufficient to (1) allow for accurate tracking of debits and (2) prevent "double-dipping" of
the same. All correspondence related to credit transactions shall be forwarded to
NCDWQ for review via electronic transmission.
VI. OTHER PROVISIONS
A. Wildlands shall allow, or otherwise provide for, access to the Parcel(s) by NCDWQ or
other parties authorized by NCDWQ, as necessary, for the purpose of inspection and
assessment of compliance with the terms and conditions of this Banking Instrument and
the conservation easement or restrictive covenants. Inspecting parties shall provide
reasonable notice, of not less than 24 hours, to Wildlands, prior to inspection of the Bank.
B. Force Majeure. After the sale of available credits, Wildlands will not be responsible for
failure of a Parcel that is attributed to natural catastrophes such a flood, drought, disease,
regional pest infestation, etc., that are beyond the control of Wildlands.
However, while Wildlands may not have control of such events, if an event occurs before
the final sale of all credits, Wildlands shall take remedial action to restore the property to
its condition before the event, in a manner sufficient to provide adequate mitigation to
cover credits that were sold prior to the event. Such remedial action shall be taken by
Wildlands only to the extent necessary and appropriate, as determined by NCDWQ and
Wildlands, in order to offset authorized impacts to buffers or to satisfy nutrient offset
buydown requirements imposed during land development activities and satisfied through
payment into the Bank.
C. Validity, Modification and Termination of the Banking Instrument. This Banking
Instrument will become valid on the date of the last party's signature. This Banking
Instrument may be amended or modified only with the written approval of all signatory
parties. This Banking Instrument is assignable in whole or in part by Wildlands to any
successors, subcontractors, and/or assignees.
D. Specific Language of Banking Instrument Shall Be Controlling. To the extent that
specific language in this document changes, modifies, or deletes terms and conditions
contained in those documents that are incorporated into the Banking Instrument by
reference, and that are not legally binding, the specific language within the Banking
Instrument shall be controlling.
E. Dispute Resolution. Any disputes between Wildlands and NCDWQ regarding the
attainment of success criteria and release of credits from a specific site and appropriate
monitoring, maintenance and/or remedial onsite activities shall first be addressed among
the field staff of NCDWQ and Wildlands field personnel and then, if not resolved, raised
to the level of the individual signatories to the Banking Instrument or their designees.
F. Notices. Unless otherwise provided herein, all notices and other communications which
may be or are required to be given or made by any party to the other in connection
herewith 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 Wildlands: 5605 Chapel Hill Road, Suite 122
Raleigh, NC 27607
If to NCDWQ: 2321 Crabtree Boulevard, Suite 250
Raleigh, NC 27604
G. Entire Agreement. This Agreement constitutes the sole and entire agreement among the
parties hereto and no modification of this Agreement shall be binding unless in writing
and signed by all parties hereto.
H. Applicable Law. This Agreement shall be construed under the laws of the State of North
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North Carolina Department of Environment and Natural Resources
Division of Water Quality
By:
Name:
Title: