HomeMy WebLinkAbout20160981 Ver 2_Revised UMBI_20181220ID#* 20160981
Select Reviewer:*
Katie Merritt
Initial Review
Completed Date
12/20/2018
Mitigation Project Submittal - 12/20/2018
Version* 2
Is this a Prospectus, Technical Proposal or a New Site? * r Yes r No
Type of Mitigation Project:*
r Stream r Wetlands PF Buffer PF Nutrient Offset
(Select all that apply)
Project Contact Information
Contact Name:* Email Address:*
Bob White bwhite@res.us
Project Information
Existing 20160981 Existing 2
(DWR) (nunbersonly ...nodash) Version: (nurrbersonly)
I D#: *
Project Name: RES Poplar Creek Buffer and Nutrient Offset
Umbrella Mitigation Banking Instrument
County: Johnston
Document Information
Mitigation Document Type:*
Mitigation Bank Instrument
File Upload: RES Poplar Creek UMBI - FINAL.pdf 278.16KB
Rease upload only one RDF of the conplete file that needs to be subr itted...
Signature
Print Name:* Megan Engel
Signature:*
AGREEMENT TO ESTABLISH THE RES POPLAR CREEK BUFFER AND
NUTRIENT OFFSET UMBRELLA MITIGATION BANKING INSTRUMENT IN THE
NEUSE RIVER BASIN FOR RIPARIAN BUFFER AND NUTRIENT OFFSET
MITIGATION CREDITS PURSUANT TO THE NEUSE NUTRIENT MANAGEMENT
STRATEGY
TABLE OF CONTENTS
I.
PREAMBLE....................................................................................................................... 2
IL
LOCATION AND GEOGRAPHIC SERVICE AREA ...................................................... 2
III.
AUTHORITIES.................................................................................................................. 3
IV.
ESTABLISHMENT OF BANK PARCELS....................................................................... 3
V.
BANK PARCEL DEVELOPMENT PACKAGE.............................................................. 5
VI.
POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL ............. 7
VII.
CALCULATION OF MITIGATION CREDITS FOR EACH BANK PARCEL .............. 9
VIII.
CREDIT RELEASE SCHEDULE....................................................................................
10
IX.
PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS ...........
11
X.
BANK PARCEL CLOSURE............................................................................................
13
XI.
GENERAL PROVISIONS FOR EACH BANK PARCEL ..............................................
13
ATTACHMENTS
A — Division of Water Resources Authority Document
B — Rule Text 15A NCAC 02B .0240
C — Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015)
D — Buffer Ledger Template
E — Nutrient Offset Ledger Template
1
I. PREAMBLE
This RES Poplar Creek Umbrella Mitigation Banking Instrument ("Instrument") regarding the
establishment, use, operation, and maintenance of two (2) Nutrient Offset and Buffer
Mitigation Bank Parcels, identified in Section II, is 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 EBX-
Neuse I, 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 0213.0240 and the Consolidated Mitigation Rule 15A NCAC 02B
.0295, which became effective on November 1, 2015 (Attachments B and C). This instrument
is for two individual bank sites, Poplar Creek and Uzzle.
The purpose of these Bank Parcels is:
A. To restore, enhance and preserve riparian vegetation adjacent to streams and/or agricultural
ditches with the intent to improve water quality within the Neuse River Basin (8 -digit HC
03020201), excluding the Falls Lake Watershed.
B. To convert agricultural land uses within riparian areas adjacent to streams and/or
agricultural ditches into a dense, hardwood vegetated state with the intent to significantly
reduce nutrient loadings associated with agricultural practices into streams and ditches.
C. To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset
Credits to third parties in the Neuse River Basin, for development (both existing and
proposed) requiring such mitigation.
IL 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 Neuse River Basin in the State of North
Carolina, United States Geological Survey ("USGS") 8 -digit Hydrologic Unit Code
("HUC") 03020201.
C. Sale or transfer of Riparian Buffer Credits shall be limited to the Neuse River Basin (8 -
digit HUC 03020201), excluding the Falls Lake Watershed, unless otherwise authorized
by the DWR or delegated local government in accordance with 15A NCAC 02B .0295.
D. Sale or transfer of Nutrient Offset Credits shall be limited to Neuse River Basin (8 -digit
HUC 03020201) excluding the Falls Lake Watershed in accordance with 15A NCAC 02B
.0240.
E. The following table provides site-specific details of each of the two Bank Parcels proposed
under this Instrument, all are within the Neuse River Basin (8 -digit HUC 03020201);
Table 1.0 — Site-specific Details
Bank Parcel
8 -Digit
DWR
Project
Named
Name
County
USGS
Project #
Location
Receiving
Primary Land Use/s
HUC
Stream
Mature natural forest
Poplar Creek
Johnston
03020201
20160979
35.5521,
Poplar Creek
grazed by cattle,
v2
-78.3568
cattle pasture
Uzzle
Johnston
03020201
20160981
35.5851,
Little Poplar
Mature natural forest
v2
-78.3935
Creek
grazed by cattle
III.AUTHORITIES
A. The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in
accordance with the requirements in the DWR Authority document referenced herein as
"Attachment A" and attached to this Instrument.
B. Projects eligible for utilization of the credits are those requiring authorization under the
requirements of Attachment A and any new approved North Carolina ("State") statutes and
rules for the Neuse Nutrient Sensitive Waters Management Strategy.
C. The sale of mitigation credits generated from the Bank Parcels approved under this
Instrument, 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 Packages (BPDP) to generate Riparian Buffer Credits and Nutrient Offset
Credits shall be consistent with North Carolina ("State") 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 BANK PARCELS
A. In accordance with 15A NCAC 02B .0295 and 15A NCAC 02B .0240, DWR has provided
a "Site Viability Letter" for each of the Bank Parcels proposed under this Instrument. The
site viability letter is not an approval of the site to generate mitigation credits, but is a
preliminary review of the Bank Parcel that details and confirms existing land -use
conditions, defines the riparian zone sites (Restoration, Enhancement or Preservation), and
identifies features (streams, ditches, ponds, etc.) that meet general criteria to be suitable to
generate mitigation credits. Table 2.0 below outlines when a Site Viability Letter was
issued by NCDWR for the mitigation sites proposed under this Instrument:
Table 2.0 — Site Viability Letter Details
Bank Parcel
NC DWR Site Visit
Viability Letter
Received
Viability Letter
Expiration Date
Poplar Creek
October 181, 2016
December 6th, 2016
None noted
Uzzle
January 131, 2017
January 13th, 2017
None noted
B. A valid Site Viability Letter is required prior to submittal of each BPDP. Site Viability
Letters will either expire upon the submittal of a BPDP to the DWR. If a Site Viability
Letter expires prior to submittal of a complete BPDP as described in Section V to DWR,
then the Sponsor must submit a formal request to DWR for a new Site Viability Letter for
that Bank Parcel.
C. The Bank Parcels proposed for inclusion under this Instrument shall require a Bank Parcel
Development Package (`BPDP") be submitted to, and approved by, the DWR prior to use
of the individual Bank Parcel for mitigation purposes or for any sale or transfer of any
associated credits. The contents of the BPDP are provided in Section V.
D. These two (2) Bank Parcels are part of the Neu -Con Stream and Wetland Umbrella
Mitigation Bank, Poplar Creek Army Action ID #SAW -2016-01985, Uzzle Action ID
#SAW -2016-01973. These mitigation plans have been submitted to the Interagency
Review Team (IRT) for review and approval.
E. Each BPDP submitted under this instrument will be placed on public notice and made
available for public commenting for 15 calendar days.
F. Most of the Riparian Buffer Credits on these Bank Parcels will be generated along stream
channels that are proposed for stream mitigation. Stream Mitigation Plans will be submitted
under the Neu -Con Stream and Wetland Umbrella Mitigation Bank referenced in "D" in
this section. Additionally, all activities conducted within riparian buffers and adjacent
riparian areas for purposes of generating Riparian Buffer Credits will be conducted in
concurrence with stream mitigation activities. Riparian Buffer Credit may be achieved
through restoration, enhancement and preservation of DWR riparian buffers as they are
defined in 15A NCAC 02B .0233, and other riparian areas allowed per 15A NCAC 02B
.0295 (n) and (o) on the Bank Parcel. Riparian Buffer Credits are only attainable if the
width of the restoration site, enhancement site, and preservation site is at least 20 feet from
top of bank.
G. The Bank Parcels are intended to provide Neuse Riparian Buffer mitigation as follows:
1. Planting on a Restoration Site as defined in 15A NCAC 02B .0295(b).
2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (o) by placing
a conservation easement around riparian areas.
3. Enhancing riparian areas that are being grazed by cattle by installing fencing to
permanently exclude cattle from the streams and their associated riparian areas as
allowed in 15A NCAC 0213 .0295 (0)(6).
4. Diffused flow will be maintained onsite to the maximum extent practicable.
al
H. Nutrient Offset Credit may be achieved on these Bank Parcels through restoration of the
riparian areas, where agriculture is the predominant land use. 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 Parcels are expected to provide Nutrient Offset Credits in accordance with 15A
NCAC 02B .0240 and are expected to provide Nutrient Offset Credit as follows:
I. Converting agricultural land uses within riparian areas to non-agricultural land
uses.
2. Installing fencing to permanently exclude livestock from the riparian areas and
streams.
3. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC
02B .0295 (b) adjacent to streams where agriculture has been determined to be the
predominant land -use.
F. The two Bank Parcels submitted for review under this Instrument are anticipated to begin
construction of stream mitigation activities in Spring 2019.
V. BANK PARCEL DEVELOPMENT PACKAGE
A. All Bank Parcel Development Packages (BPDP) submitted under this Instrument shall be
submitted to DWR for review and must be approved by DWR prior to any construction on
the Bank Parcel. The BPDP must describe any changes that have occurred to the site
between the date of the Site Viability Letter and the date the BPDP is submitted to DWR.
The BPDP shall include detailed information consistent with the sections below
concerning; 1) site location (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, and 8) Site Viability Letter from DWR; 9)
a figure depicting the proposed stream mitigation areas; and 10) service area figure for each
mitigation type
B. The Sponsor will obtain all applicable federal, state, and local documentation, permits, or
authorizations needed to construct and maintain the Bank Parcel. This Instrument does not
qualify as, or substitute for, such documentation, permit, or authorization.
C. Any restoration or enhancement activities or proposed construction within riparian buffers
and other riparian areas on the Bank Parcels 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 and enhancement activities
must be performed in concurrence with any stream mitigation activities and not before.
5
D. Requests for deviation from the approved BPDP must be submitted to DWR in writing.
Written approval from the DWR must be received prior to implementing any deviation
from the approved BPDP.
Property Disposition & Long -Term Management for Each Bank Parcel
E. Prior to the release of any credits, the Sponsor shall record permanent conservation
easements at the County Register of Deed's office in the county in which the Bank Parcel
is located that is sufficient to ensure protection, operation and maintenance of restored
riparian buffers and other riparian areas for the duration specified in the approved BPDP.
F. The form of the conservation easement shall be consistent with the standards employed by
the State of North Carolina in the protection of restored riparian buffers and riparian areas
and shall be approved by the DWR and Army Corps of Engineers (ACOE) prior to the
release of any credits.
G. The Sponsor shall not grant additional easements, right of ways, or any other property
interest in or to the project areas, without prior approval from the DWR.
H. The Sponsor agrees to transfer or assign the conservation easement and its interests in
perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and 170(h)
of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring Report. The
holder shall be a land trust or stewardship program that will hold and enforce the
conservation easement and the interests in perpetuity. The Sponsor shall choose a land trust
or stewardship program that is accredited by the Land Trust Accreditation Commission
and/or has been approved by DWR prior to the end of the fourth-year monitoring period.
A land trust must be certified under 501(c)(3) of the Internal Revenue Code.
I. In the event the Sponsor is also the owner of the underlying fee interest in the property, the
conveyance of the conservation easement to a land trust or stewardship fund must be
arranged at the outset of the approved BPDP.
Financial Assurances for Each Bank Parcel
J. Following approval of the BPDP for each Bank Parcel, the Sponsor shall provide
Performance/Maintenance Bonds from a surety company that is rated no less than an "A-"
as rated by A.M. Best, to construct the sites according to the approved BPDPs. It is the
Sponsor's responsibility to confirm that the surety company is rated no less than an "A-"
with each annual bond renewal.
K. The amount of each Performance Bond shall be 100% of the estimated cost for
implementation of the mitigation activities of the Bank Parcel as described in the approved
BPDP. No bond shall be less than $150,000.00 to cover construction costs.
Con
L. Alternatively, in lieu of posting Performance Bonds, the Sponsor may elect to construct
the projects prior to the first credit releases.
M. For each Bank Parcel, once DWR has released all credits for completion of all the items
listed below, then the Bank Sponsor will be released from its performance obligations
under the performance bond required in Item J and K of this section:
1. Instrument and BPDP approved by DWR, Conservation Easement recorded,
Financial Assurance posted;
2. Mitigation site earthwork and planting and installation of monitoring devices
completed;
3. As -Built Report as described in Section VI has been received by DWR; and
4. DWR has submitted a written approval of the As -Built Report.
N. To comply with this section, DWR must be the Obligee on all performance bonds.
VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL
As -Built Report
A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of
this Instrument and corresponding BPDP, 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 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
establishment of the buffer and nutrient offset mitigation areas. The as -built report will
describe any deviation from the approved BPDP and will document the following:
Buffer restoration and planting details, invasive species control, confirmation of
fence installation, monitoring device locations, vegetation plot locations, photo
point locations, surface and groundwater elevations, as appropriate.
2. Provide confirmation that the construction of all stream mitigation activities have been
completed.
3. Boundary Survey of the conservation easement area, signed and sealed by a
licensed surveyor, including an inventory of the final mitigation areas for riparian
buffer and/or nutrient offset mitigation credits in both square feet and acres.
4. As -built map of the mitigation area showing where riparian restoration,
enhancement and preservation was performed and any deviations to the Bank
Parcel from what was approved in the BPDP.
5. As -Built map of the stream mitigation areas.
7
6. Aerial map of the mitigation area that was included in the approved BPDP.
Financial Assurance for each Bank Parcel
C. After completion of the restoration/construction on each Bank Parcel, a separate
Performance/Maintenance Bond will be secured for 100% of the estimated cost to
implement the monitoring and maintenance plan as described in the approved BPDP and
As -Built Report applicable for each site. The Bond must be from a surety company that is
rated no less than an "A-" as rated by A.M. Best, and it is the Sponsor's responsibility to
confirm that the surety company is rated no less than an "A-" with annual bond renewal.
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 initially, to cover monitoring and
maintenance costs.
E. For each Bank Parcel, once DWR has released 100% of all credits for completion of all
Bank Parcel milestones described in Table 3 of Section VIII and in the corresponding
BPDP, the Bank Sponsor will be released from its performance obligations under the
performance bond required in "C -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 or native hardwood tree and
shrub species should be planted at a density sufficient to provide 260 stems per acre after
five years. A minimum of four (4) native hardwood trees or four (4) native hardwood tree
and shrub species must be planted. No one species shall be greater than 50% of the planted
stems. A list of species for planting will be detailed in the BPDP for approval. Native
hardwood tree volunteer species may be included to meet performance standards as
determined by the DWR.
I. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in
height.
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.
N.
K. Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit: Reporting
criteria of the vegetation shall be based on the Carolina Vegetation Survey (CVS) — EEP
Protocol for Recording Vegetation Level 2 Plot Sampling only version 4.0 or any updated
versions of this protocol in place 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 the
following:
1. A U.S. Geological Survey map showing location of the Bank Parcel;
2. A detailed narrative with supporting photos summarizing the condition of the Bank
Parcel along with any maintenance or remediation performed that year; and
3. A map, survey, or other figure showing locations of sampling plots, permanent
photo points, location of transects, etc.; and
4. Monitoring data, including specific vegetative counts showing that the trees or tree
and shrub species planted are meeting performance standards and updated
photographs; and
5. A copy of the most recent Bank credit/debit ledgers; and
6. Corresponding verification letters from designated local governments upon request;
and
7. Corresponding Mitigation Transfer Certificates upon request.
8. Proof of performance bond renewal to cover the next monitoring year (if
applicable)
Contingency Plans/Remedial Actions
L. In the event the Bank Parcel fails to achieve the performance 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 FOR EACH BANK PARCEL
Riparian Buffer Credits
A. All Riparian Buffer Credits shall be determined based on the ratios and percentages
provided in 15A NCAC 0213 .0295 (m) and (n).
B. Riparian buffer restoration on the Bank Parcels, as described in 15A NCAC 0213.0295 (n),
and defined in 15A NCAC 02B .0295 (b) that is performed on agriculture lands within the
Bank Parcels, may be used for either Riparian Buffer Credit or Nutrient Offset Credit, but
not both.
I
C. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295 (n)
and 15A NCAC 02B .0295 (0)(3) and defined in 15A NCAC 02B .0295 (b) that is
performed on agriculture lands within the Bank Parcels, may be used for either Riparian
Buffer Credit or Nutrient Offset Credit, but not both.
D. Riparian buffer enhancement on the Bank Parcel, as described in 15A NCAC 02B .0295
(0)(6) can only be used for Riparian Buffer Credit.
E. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (o)
and defined in 15A NCAC 02B .0295 (b), can only be used for Riparian Buffer Credit.
F. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560
buffer credits per one acre.
G. Pursuant to 15A NCAC 02B .0295 (1)(6)(B), "Buffer mitigation credit shall not be
generated within wetlands that provide mitigation credit required by 15A NCAC 02H
.0506".
Nutrient Offset Credits
H. The acreage of Nutrient Offset Credits on the two (2) Bank Parcels submitted under this
Instrument is determined by applying the applicable ratio as provided in 15A NCAC O2B
.0295 (m) for a Restoration Site. All riparian areas proposed for Nutrient Offset Credits
must be a minimum of fifty (50) feet from the top of the stream or ditch banks on land
noted in a Site Viability Letter as agriculture.
I. Nutrient Offset Credits cannot be achieved through the preservation activities performed
on these Bank Parcels.
J. Nutrient Offset Credits cannot be achieved through enhancement activities performed on
this Bank Parcel under 15A NCAC 02B .0295 (0)(6).
K. Nutrient Abatement of Restored Riparian Area/Buffers: The Sponsor and DWR agree to
the following:
1. The pounds of nitrogen offset per acre of restored riparian areasibuffers shall be
2,273.02 pounds per acre.
L. The Sponsor and DWR agree the methodology and calculations for determining nitrogen
reduction, associated with restoration and enhancement of riparian areas as described in
Section IV of this Instrument, shall be fixed as part of the approval of this Instrument, with
the fixed amount not changing during the Bank Parcel Development or credit release
schedule for each Bank Parcel unless the viability letter for that Bank Parcel has expired
VIII. CREDIT RELEASE SCHEDULE
10
A. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval
by DWR, it is agreed that the mitigation credits associated with each individual Bank Parcel
will become available for sale to a third party in accordance with Credit Release Schedules.
B. A Credit Release Schedule shall be provided in each site-specific BPDP included in this
Instrument and shall outline Bank Parcel milestones expected to be completed for each
mitigation bank. Credit Release Schedules approved in the BPDP will be based on the
completion of these Bank Parcel milestones.
C. In general, Bank Parcel milestones and the percentage of credits most often released upon
completion are described in Table 5.0 below:
Table 3.0 - Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits
Task
Project Milestone
% Credit
Available for
Sale
1
Instrument 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
6
Monitoring Report #3: Approved by the DWR** & financial assurance renewed
10
7
Item B (1) of Section X in this Instrument has been completed and approved by
DWR.
5
No remaining credits will be released until the conservation easement has been
assigned to an approved land trust or stewardship
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
D. DWR may modify credit release schedules based on the information submitted or the order
in which required information is received. DWR will notify the Sponsor of any
modification to the credit release schedule.
E. DWR may consider a Credit Release Schedule for a Bank Parcel based on the extent of
change between current onsite conditions and proposed post construction conditions.
F. The Sponsor must initiate implementation of the approved BPDP for each site under this
Instrument in concurrence with all stream mitigation activities proposed in the approved
Mitigation Plans referenced in Item D of Section IV of this Instrument.
IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS
Credit Ledgers
11
A. The Bank Sponsor shall maintain a credit ledger for each mitigation type for each Bank
Parcel under this Instrument: Credit ledgers shall provide the accounting for buffer
mitigation credits in square feet and acres, and Nutrient Offset Credits in pounds and acres.
B. Each credit ledger shall be submitted on a separate 8 t/2 inch by 11 -inch spreadsheet with
legible font style and font size. All ledgers shall be submitted using the templates provided
in Attachments D and E of this Instrument or any updated versions to these templates as
provided by DWR.
Credit Processing
C. Riparian Buffer Credits generated on these Bank Parcels will be used to provide mitigation
for authorized buffer impacts within the Neuse River Basin according to 15A NCAC 02B
.0295 (g).
D. Nutrient Offset Credits generated on these Bank Parcels will be used 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 15A NCAC 02B .0295 (0)(3),
on agriculture 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 Enhancement (generated under 15A NCAC 02B .0295 (0)(6)) and
Preservation credits generated on these two (2) Bank Parcels are not transferrable into
nutrient offset credits.
G. The Bank Sponsor shall obtain verification of nutrient offset need from a designated local
government in the Neuse River Basin outside of the Falls Watershed, prior to debiting
Nutrient Offset Credits from the Bank Parcel.
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 individual Bank Parcel.
I. All credit and debit transactions for each Bank Parcel under this Instrument shall be
accurately depicted in the credit ledgers. The Bank Sponsor shall provide DWR up-to-date
credit ledgers for each Bank by the tenth (10th) of each month. At a minimum and upon
request DWR shall receive a hard copy of updated credit ledgers along with the
corresponding Mitigation Credit Transfer Certificates ("Certificate") and all corresponding
letters from the designated local governments or DWR where applicable once a year.
12
Notification of all credit sales shall be provided to DWR until all credits that have been
released have been sold.
Mitigation Credit Transfer Certificates
J. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is
required to be provided to the buyer of Riparian Buffer and/or Nutrient Offset credits, that
will include, at a minimum, the following information:
1. Bank Details: (1) sponsor, (2) bank parcel as it appears in this Instrument, (3) DWR
project number for the BPDP as it appears in Table 10.
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.
3. Project Details: (1) project name as it appears on DWR or local government permits
and/or certifications, (2) 8 -digit HUC, (3) river basin, (4) nutrient strategy
applicable to the project, (5 — when applicable) designated local government
requiring Nutrient Offset Credits, and/or (6) DWR authorization number or
delegated local government requiring Riparian Buffer Credits for this project.
G. 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:
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 FOR EACH BANK PARCEL
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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, or 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, including the USACE if it is applicable to the amendment.
C. Any transfer of the Sponsor's rights or obligations outlined in this Instrument or any other
agreement referenced in this Instrument to a third party must be approved by DWR prior
to the transfer.
D. Force Majeure: After 100% of all of the credits have been released according to the credit
release schedule in the BPDP and confirmation has been received by the DWR that the
Conservation Easement has been successfully assigned in compliance with Item H of
Section V, the Sponsor will not be responsible for Bank failure that is attributed to natural
catastrophes including but not limited to flood, drought, disease, regional pest infestation,
etc. that are beyond the control of the Sponsor.
E. However, if an event occurs before 100% of all of the credits have been released according to
the credit release schedule in Section VIII, the Sponsor shall take remedial action to restore
the property to its condition prior to the event, in a manner sufficient to provide adequate
mitigation to cover credits that were sold prior to the occurrence of the event. Such remedial
action shall be taken by the Sponsor only to the extent necessary and appropriate, as
determined by DWR and the Sponsor.
DWR must concur in writing that a force majeure event has occurred for this provision to apply.
F. Oversight: Actions taken by DWR may include, but are not limited to, the following:
1. Site visits,
2. Issuance of Site Viability Letters,
3. BPDP review and approval of items listed in Section V of this Instrument,
4. As -Built Report review, and approval of items listed in Section VI of this
Instrument,
5. Monitoring Report review, and approval of items 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 and,
8. Information requests, file reviews and audits
Reports, ledgers, files and other information shall be made available to DWR upon request, unless
otherwise specified in this or any other document.
G. Validity of the Banking Instrument: This Instrument will become valid on the date of the
last party's signature.
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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, electronic mail, 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: EBX —Neuse I, LLC
Attention: Mr. Bob White
302 Jefferson Street Suite 110
Raleigh, North Carolina 27605
Bob White
bwhite@res.us
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.
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EBX-Neuse I, LLC
By: (Print)
(Signature)
Title:
Date:
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF
WATER RESOURCES
By: (Print)
(Signature)
Title:
Date:
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