HomeMy WebLinkAbout20170687 Ver 2_Signed MBI_20180228AGREEMENT TO ESTABLISH THE GRANTHAM BRANCH MITIGATION
BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR RIPARIAN BUFFER
AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE NEUSE
NUTRIENT MANAGEMENT STRATEGY
TABLE OF CONTENTS
I.
PREAMBLE....................................................................................................................... 2
II.
LOCATION AND GEOGRAPHIC SERVICE AREA ......................................................
2
III.
AUTHORITIES..................................................................................................................
3
IV.
ESTABLISHMENT OF GRANTHAM BRANCH BANK PARCEL ...............................
3
V.
BANK PARCEL DEVELOPMENT PACKAGE..............................................................
5
VI.
POST CONSTRUCTION DOCUMENTATION...............................................................
7
VII.
CALCULATION OF MITIGATION CREDITS...............................................................
9
VIII.
CREDIT RELEASE SCHEDULE....................................................................................
11
IX.
PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS ...........
11
X.
BANK PARCEL CLOSURE............................................................................................
13
XI.
GENERAL PROVISIONS...............................................................................................
14
ATTACHMENTS
A — Division of Water Resources Authority Document
B — Buffer Ledger Template
C —Nutrient Offset Ledger Template
D- Rule Text 15A NCAC 02B .0240
E — Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015)
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I. PREAMBLE
This Mitigation Banking Instrument ("Instrument") regarding the establishment, use,
operation, and maintenance of the Grantham Branch Nutrient Offset and Buffer Mitigation
Bank Parcel ("Bank Parcel") to provide Neuse Riparian Buffer mitigation credits ("Riparian
Buffer Credits") and Neuse Nutrient Strategy nutrient load reduction credit ("Nutrient Offset
Credits") is made and entered into by and among Wildlands Holdings 111, LLC acting as the
Bank Sponsor ("Sponsor"), and the North Carolina Department of Environmental Quality —
Division of Water Resources ("DWR"). This Instrument is in accordance with 15A NCAC
02B .0240 and the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became
effective on November 1, 2015 (Attachment D and E).
The purpose of the Bank is:
A. To restore and preserve riparian vegetation adjacent to streams and/or agricultural ditches
with the intent to improve water quality within the Neuse River Basin.
B. To convert agricultural land uses within riparian areas adjacent to streams and/or
agricultural ditches into a dense, hardwood vegetated state with the intent to significantly
reduce nutrient loadings associated with agricultural practices into streams and ditches
C. To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset
Credits to third parties in the Neuse River Basin, excluding the Falls Watershed, for
development (both existing and proposed) requiring such mitigation.
II. LOCATION AND GEOGRAPHIC SERVICE AREA
A. The Geographic Service Area ("GSA") is the designated area wherein a Bank can
reasonably be expected to sell Riparian Buffer Credits and/or Nutrient Offset Credits for
impacts due to development activities.
B. The GSA for this instrument is limited to the 8 -digit Hydrologic Unit Code ("HUC")
03020201 of the Neuse River Basin, excluding the Falls Lake Watershed.
C. The project is comprised of five parcels of land in Wayne County, NC and is currently used
for corn and soybean production. The land use is a combination of forested and non -
forested cropland and is accessed from Grantham School Road, in Goldsboro, NC. The
project is located at 35.275728 N and 78.175728 W.
D. Unnamed tributaries to Falling Creek are the receiving bodies of water for stormwater
runoff from this parcel. Falling Creek is classified by DWR as Nutrient Sensitive Waters
(NSW).
E. Sale or transfer of Riparian Buffer Credits shall be limited to the 8 -digit HUC 03020201,
with the exception of the Falls Lake Watershed, unless otherwise authorized by the DWR
or delegated local government in accordance with 15A NCAC 02B .0295.
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F. Sale or transfer of Nutrient Offset Credits shall be limited to 8 -digit HUC 03020201 with
the exception of the Falls Lake Watershed in accordance with 15A NCAC 02B .0240.
III. AUTHORITIES
A. The Bank Parcel will be used to provide Riparian Buffer Credit and Nutrient Offset Credit
in accordance with the requirements in the DWR Authority document referenced herein as
"Attachment A" and attached to this Instrument.
B. Projects eligible for utilization of the credits are those requiring authorization under the
requirements of Attachment A and any new approved North Carolina ("State") statutes and
rules for the Neuse Nutrient Sensitive Waters Management Strategy.
C. The selling of mitigation credits shall be consistent with approved North Carolina ("State")
statutes and rules for the Neuse Nutrient Sensitive Waters Management 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 GRANTHAM BRANCH BANK PARCEL
A. In accordance with 15A NCAC 0213.0295 and 15A 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 (streams, ditches, ponds, etc.) that meet general criteria to be suitable to
generate mitigation credits. Two (2) Site Viability Letters that apply to this Bank Parcel
were issued by DWR on April 18, 2017 and November 29, 2017.
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. This Bank Parcel is also part of the "Falling Creek Umbrella Mitigation Bank" "Grantham
Branch Mitigation Site" Army Action ID# 2017-00549 for stream and wetland mitigation.
D. The BPDP will be placed on public notice and made available for public commenting for
15 calendar days.
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E. Most of the Riparian Buffer Credits on this Bank Parcel will be generated along restored
stream channels that are proposed for stream mitigation and will be a minimum of 50'.
Stream Mitigation Plans will be submitted to the Interagency Review Team (IRT) under
the Falling Creek Umbrella Mitigation Bank referenced in "C" of this section for review
and approval.
F. Riparian Buffer Credit may be achieved through restoration of DWR riparian buffers as
they are defined in 15A NCAC 02B.0233, and other riparian areas allowed per 15A NCAC
02B .0295 (n) and (o) on the Bank Parcel. Buffer credits are only attainable if the width
of the restoration site is at least 20 feet from top of bank of streams and 50 feet from top of
banks along ditches. Buffer Credit along ditches can only be attainable within the first 50
feet.
G. The Bank Parcel is intended to provide Neuse Riparian Buffer mitigation as follows:
I. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B
.0295(b) adjacent to streams.
2. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B
.0295(0) adjacent to ditches.
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(0)
4. Diffuse flow will be maintained onsite. The Buffer Interpretation /Clarification
Memo #2008-019 applies where maintenance of diffuse flow onsite is unattainable.
H. Nutrient Offset Credit may be achieved through restoration of the riparian areas adjacent
to streams and ditches on the Bank Parcel where agriculture is the predominant land use.
The streams and ditches onsite drain to other unnamed tributaries onsite or to Falling Creek.
The width of the restoration area begins at the most landward limit of the top of bank or
the rooted herbaceous vegetation and extends landward a minimum of 50 feet and a
maximum of 200 feet on all sides of the surface waters.
I. The Bank Parcel is intended to provide Nutrient Offset Credit as follows:
1. Converting agricultural land uses within riparian areas to non-agricultural land uses
by placing a conservation easement around riparian areas along streams and
ditches.
2. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 2B .0295
(b) adjacent to streams and ditches where agriculture has been determined by DWR
to be the predominant landuse.
J. The total area of riparian buffer or nutrient offset mitigation on the Bank Parcel is expected
to be 68.78 acres.
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V. BANK PARCEL DEVELOPMENT PACKAGE
A. The Grantham Branch 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 Letters and the date the BPDP is
submitted to DWR. The BPDP shall include detailed information consistent with the
sections below concerning; 1) site location (12 -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 letters from DWR; 8) Site Viability Letters from DWR; 9)
a figure depicting the proposed stream and wetland mitigation areas; and 10) service area
figure for each mitigation type proposed under this Instrument.
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. All restoration activities must be performed in
concurrence with any stream or wetland mitigation activities and not before.
D. Requests for deviation from the approved BPDP must be submitted to DWR in writing.
Written approval from the DWR must be received prior to implementing any deviation
from the approved BPDP.
Property Disposition & Long Term Management
E. Prior to the release of any credits, the Sponsor shall acquire a permanent conservation
easement at the Wayne County Register of Deed's office that is sufficient to ensure
protection, operation and maintenance of restored riparian buffers and other riparian areas
for the duration specified in the approved BPDP.
F. The form of the conservation easement shall be consistent with the standards employed by
the State of North Carolina in the protection of restored riparian buffers and riparian areas
and shall be approved by the DWR and Army Corps of Engineers (ACOE) prior to the
release of any credits.
G. The Sponsor shall not grant additional easements, right of ways, or any other property
interest in or to the project areas, without prior approval from the DWR.
H. The Sponsor agrees to transfer or assign the conservation easement and its interests in
perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and 170(h)
of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring Report. The
holder shall be a land trust or stewardship program that will hold and enforce the
conservation easement and the interests in perpetuity. The Sponsor shall choose a land
trust or stewardship program that is accredited by the Land Trust Accreditation
Commission and/or has been approved by DWR prior to the end of the fourth year
monitoring period. 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
Following approval of the BPDP, the Sponsor shall provide a Performance/Maintenance
Bond from a surety company that is rated no less than an "A-" as rated by A.M. Best, to
construct the site according to the approved BPDP. It is the Sponsor's responsibility to
confirm that the surety company is rated no less than an "A-" with each annual bond
renewal.
K. The Performance Bond amount shall be 100% of the estimated cost for implementation of
the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond
shall be less than $150,000.00 to cover construction costs.
L. Alternatively, in lieu of posting the Performance Bond, the Sponsor may elect to construct
the project prior to the first credit release.
M. Once DWR has released all credits for completion of all the items listed below, then the
Bank Sponsor will be released from its performance obligations under the performance
bond required in Item ] and K of this section:
1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded,
Financial Assurance Posted;
2. Mitigation Site Earthwork and Planting and Installation of Monitoring Devices
Completed;
3. As -Built Report as described in Section VI has been received by DWR; and
4. DWR has submitted a written approval of the As -Built Report
N. To comply with this section, DWR must be the Obligee on all performance bonds.
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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. When all stream and wetland mitigation activities have commenced, the Sponsor will
submit an as -built plan and report for the Bank Parcel within 30 calendar days after
completing the riparian buffer and nutrient offset mitigation activities. The as -built report
will describe any deviation from the approved BPDP and will document all the following:
1. Buffer restoration planting details, invasive species control, monitoring device
locations, vegetation plot locations, photo point locations, surface and groundwater
elevations, as appropriate.
2. Provide confirmation that the construction of all stream and wetland mitigation
activities have been completed.
3. Boundary Survey of the conservation easement area, signed and sealed by a
licensed surveyor, including an enumeration of the final mitigation areas for
riparian buffer and nutrient offset mitigation credits in both square feet and acres.
4. As -built map of the mitigation area showing where restoration and preservation
were performed and any deviations to the Bank Parcel from what was approved in
the BPDP.
5. As -Built map of the stream and/or wetland mitigation areas
6. Aerial map of the mitigation area that was included in the approved BPDP.
Financial Assurance
C. After completion of the restoration/construction a separate Performance/Maintenance
Bond will be secured for 100% of the estimated cost to implement the monitoring and
maintenance plan as described in the approved BPDP. The Bond must be from a surety
company that is rated no less than an "A-" as rated by A.M. Best, and it is the Sponsor's
responsibility to confirm that the surety company is rated no less than an "A-" with 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 -D" of this Section
F. To comply with this section, DWR must be the Obligee on all performance bonds.
Monitoring and Maintenance Reports
G. The Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as
DWR determines that the performance standards described below have been met. The
monitoring period shall be a minimum of five consecutive years.
H. Performance Standards for Vegetation: Native hardwood trees should be planted at a
density sufficient to provide 260 stems per acre after five years. A minimum of four (4)
native hardwood trees species must be planted. No one species shall be greater than 50%
of the planted stems. A list of species for planting will be detailed in the BPDP for
approval. Native hardwood tree volunteer species may be included to meet performance
standards as determined by the DWR.
I. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in
height.
J. If the performance standards of the vegetation are not met, supplemental plantings may be
required. Supplemental plantings will be utilized until the required densities have been
achieved and maintained for five years. Bank Parcel maintenance, such as ensuring diffuse
flow, managing invasive species, and pest control will be included in the BPDP.
K. Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit: Reporting
criteria of the riparian restoration areas shall be based on the Carolina Vegetation Survey
(CVS) — EEP Protocol for Recording Vegetation Level 2 Plot Sampling Only Version 4.0
or any updated versions of this protocol in place on 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 all 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
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 species
planted are meeting performance standards and updated photographs; and
5. A copy of the most recent Bank credit/debit ledgers; and
6. Corresponding verification letters from designated local governments upon request;
and
7. Corresponding Mitigation Transfer Certificates upon request.
8. Proof of performance bond renewal to cover the next monitoring year (if
applicable)
Contingency Plans/Remedial Actions
L. In the event the Bank Parcel fails to achieve the success criteria described in this Instrument
and the approved BPDP, the Bank Sponsor shall develop necessary contingency plans in
coordination with the DWR and implement appropriate remedial actions for the Bank
Parcel and the Bank. Depending on the degree of remedial actions required, the DWR may
modify the monitoring period.
VII. CALCULATION OF MITIGATION CREDITS
Riparian Buffer Credits
A. All Riparian Buffer Credits shall be determined based on the ratios and percentages
provided in 15A NCAC 0213 .0295 (m) and (n).
B. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295 (n)
and (o) and defined in 15A NCAC 0213.0295 (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(0)
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 Site. All riparian areas proposed for
V
nutrient offset credits must be a minimum of fifty (50) feet from the top of the stream bank
and ditch banks.
F. Nutrient Offset Credits cannot be achieved through the preservation activities performed
on this Bank Parcel.
G. Nutrient Abatement of Restored Riparian Area/Buffers: The Sponsor and DWR agree:
1. The pounds of nitrogen offset per acre of restored riparian areas/buffers shall be
2,273.02 pounds per acre.
H. The Sponsor and DWR agree the methodology and calculations for determining nitrogen
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. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval
by DWR, it is agreed that the mitigation credits associated with each individual Bank Parcel
will become available for sale to a third party in accordance with the Credit Release
Schedule below::
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** & financial assurance renewed
10
5
Monitoring Report #2: Approved by the DWR** & financial assurance renewed
10
b
Monitoring Report #3: Approved by the DWR** & financial assurance renewed
10
7
Item B (1) of Section X in this Instrument has been completed and approved by
DWR.
g
No remaining credits will be released until Task 7 has been sans red
8
Monitoring Report #4: Approved by the DWR** & financial assurance renewed
5
9
Monitoring Report #5: Approved by the DWR** and final site visit by DWR has
been conducted
10
Total
100%
* For specification, please see Section V in this Instrument
** DWR Approval provided upon a determination that the site is meeting success criteria contained within the
approved BPDP
B. DWR may modify the credit release schedule based on the information submitted or the
order in which required information is received. DWR will notify the Sponsor of any
modification to the credit release schedule.
IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS
Credit Ledgers
A. The Bank Sponsor shall maintain three credit ledgers, for the Bank Parcel under this
Instrument: one accounting for Riparian Buffer Restoration Credits in square feet and
acres, one for Riparian Buffer Preservation Credits in square feet and acres, and one
accounting for Nitrogen Nutrient Offset Credits in pounds and acres.
B. Each credit ledger shall be submitted on a separate 8 '/zin X 11 in spreadsheet with legible
font style and font size. All ledgers shall be submitted using the templates provided in
Attachments B and C of this Instrument or any updated versions to these templates as
provided by DWR.
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Credit Processing
C. Riparian Buffer Credits generated on this Bank Parcel must be provided to offset impacts
within the Neuse River Basin, excluding the Falls Lake Watershed, according to 15A
NCAC 02B.0295 (g).
D. Nutrient Offset Credits generated on this Bank Parcel can only be provided to offset
nitrogen nutrient loads within the 03020201 HUC of the Neuse River Basin, excluding
Falls Lake Watershed in accordance with 15A NCAC 02B .0240.
E. Available mitigation credits (credits that have been released by DWR but not sold by the
Sponsor) that are generated from riparian buffer restoration, as defined in 15A NCAC 02B
.0295 (b) and described in 15A NCAC 02B .0295 (n) and (o) on agricultural land, 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. Riparian Buffer Preservation credits generated on this Bank Parcel are not transferrable
into Nutrient Offset Credits
G. The Bank Sponsor shall obtain written verification of nutrient offset need from a designated
local government in the Neuse River Basin outside of the Falls Watershed, prior to debiting
Nutrient Offset Credits from the Bank Parcel.
H. The Bank Sponsor shall obtain verification of buffer mitigation required from the delegated
local government in the Neuse River Basin outside of the Falls Watershed or DWR prior
to debiting Riparian Buffer Credits from the Bank Parcel,
I. After Bank Parcel Closure has commenced, which is described in Section X of this
Instrument, the Bank Sponsor will be unable to add mitigation credits to the Grantham
Branch Nutrient Offset and Buffer Mitigation Bank.
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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Mitieation Credit Transfer Certificates
K. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is
required to be provided to the buyer of Riparian Buffer and/or Nutrient Offset credits, that
will include, at a minimum, the following information:
Bank Details: (1) sponsor Name, (2) bank parcel name as it appears in this
Instrument and, (3) DWR project number for the BPDP.
2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 — when
applicable) amount of nitrogen credits purchased in pounds and confirmation from
the designated local government of the amount required, and (4 — when applicable)
amount of Riparian Buffer Credits purchased in square feet and the confirmation
from DWR or the local government of the amount required.
Project Details: (1) project name as it appears on DWR or local government
permits and/or certifications, (2) 8 -digit HUC, (3) river basin, (4) nutrient strategy
applicable to the project, (5 — when applicable) designated local government
requiring Nutrient Offset Credits, and/or (b) DWR authorization number or
delegated local government requiring Riparian Buffer Credits for this project.
L. 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.
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XI. GENERAL PROVISIONS
A. Upon the presentation of proper credentials, and during normal business hours, the Sponsor
and the landowner shall grant permission to the Director of DWR, an authorized
representative of the Director of DWR, to enter the property containing the Bank Parcel(s).
B. Amendments: This Banking Instrument may be amended or modified only with written
approval of all signatory parties.
C. Any transfer of the Sponsor's rights or obligations outlined in this Instrument or any other
agreement referenced in this Instrument to a third party must be approved by DWR prior
to the transfer.
D. Force Majeure: After 100% of all 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.
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G. Validity of the Banking Instrument: This Instrument will become valid on the date of the
last party's signature.
H. Specific Language of Banking Instrument Shall Be Controlling: To the extent that specific
language in this document changes, modifies, or deletes terms and conditions contained in
those documents that are incorporated into the Instrument by reference, and that are not
legally binding, the specific language within the Instrument shall be controlling.
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 are required to be given
or made by any party to the other shall be in writing and shall be deemed to have been
properly given and received on the date delivered in person or deposited in the United
States mail, registered or certified, return receipt requested, to the addresses set out below,
or at such other addresses as specified by written notice delivered in accordance herewith.
If to Bank Sponsor: 1430 South Mint Street, Suite 104
Charlotte, NC 28203
Attn: Shawn Wilkerson
Copy to: 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.
15
Wildlands Holdings III, LLC
By: SlWwn D. Wilkerson
����7• (Signature)
Title: Manager vc�
Date: J( V/ 2-61 o
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF
WATER RESOURCES
By: L KL C cel ocnncr (Print)
(Signature)
Title: DPVK
Date: .2 /a F190 / F -
lb
Updated
Nutrient Offset Program & Buffer Mitigation Program 9/6/2016
Authorities for UMBI
ATTACHMENT A
Authorities pertaining to the Grantham Branch 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. § 143-215.8E 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. 2013413
S.L. 2013-121
S.L. 2013-265
S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. §143-215.1)
S.L. 2011-343 (Amendment to G.S. § 143-214.11)
S.L. 2009- 337 (Amendment to G.S. § 143-214.11)
Administrative Rules:
15A NCAC 02B .0202 Definitions
15A NCAC 02B .0223 Nutrient Sensitive Waters
15A NCAC 02B .0237 Best Management Practice Cost -Effectiveness Rate
15A NCAC 02B .0240 Nutrient Offset Payments
15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers
Neuse River Basin Buffer and Neuse Nutrient Strate2v
Session Laws
S.L. 2011-394
S.L. 1998-221 (Part 1)
S.L. 1995-572
Administrative Rules:
15A NCAC 02B .0232 Basin Nutrient Reduction Goal
15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers
15A NCAC 02B .0235 Basinwide Stormwater Requirements
15A NCAC 02B .0236 Agricultural Nitrogen Loading Reduction
15A NCAC 02B .0238 Agricultural Nitrogen Reduction Strategy
15A NCAC 02B .0239 Nutrient Management
15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers