20181097 Ver 2_MBI_DRAFT_20191220

ID#* 20181097 Version* 2
Select Reviewer:*
Katie Merritt
Initial Review Completed Date 12/23/2019
Mitigation Project Submittal - 12/20/2019
Is this a Prospectus, Technical Proposal or a New Site?* r Yes r No
Type of Mitigation Project:*
r Stream r Wetlands W Buffer r- Nutrient Offset
(Select all that apply)
Project Contact Information
Contact Name:*
Katie Webber
Project Information
..................................................................................................................................................................................
ID#:* 20181097
Existing IDY
Project Type: r DMS r Mitigation Bank
Project Name: Dogtown Stream Mitigation Bank
County: Catawba
Document Information
Email Address:*
[e-mail]
Version:
*2
Existing Version
Mitigation Document Type:*
Mitigation Bank Instrument
File Upload: RES DOGTOWN MBI_DRAFT.pdf 419.69KB
Rease upload only one RDFcf the conplete file that needs to be subnitted...
Signature
Print Name:* Kathleen Webber
Signature:*

1

AGREEMENT TO ESTABLISH THE RES DOGTOWN MITIGATION BANKING
INSTRUMENT IN THE CATAWBA RIVER BASIN FOR RIPARIAN BUFFER
MITIGATION CREDITS PURSUANT TO THE CONSOLIDATED BUFFER RULES FOR
THE CATAWBA RIVER BASIN

TABLE OF CONTENTS

I. PREAMBLE ....................................................................................................................... 2
II. LOCATION AND GEOGRAPHIC SERVICE AREA ...................................................... 2
III. AUTHORITIES .................................................................................................................. 2
IV. ESTABLISHMENT OF BANK PARCELS ....................................................................... 3
V. BANK PARCEL DEVELOPMENT PACKAGE .............................................................. 4
VI. POST CONSTRUCTION DOCUMENTATION FOR THE BANK PARCEL ................ 6
VII. CALCULATION OF MITIGATION CREDITS FOR THE BANK PARCEL ................. 9
VIII. CREDIT RELEASE SCHEDULE .................................................................................... 10
IX. PROCEDURE FOR DEBITING AND CREDITING ...................................................... 10
X. BANK PARCEL CLOSURE ............................................................................................ 12
XI. GENERAL PROVISIONS FOR THE BANK PARCEL ................................................. 12

ATTACHMENTS
A – Division of Water Resources Authority Document
B – Catawba River Basin Buffer Ledger Template

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I. PREAMBLE
This RES Dogtown Mitigation Banking Instrument (“Instrument”) regarding the establishment, use,
operation, and maintenance of the Dogtown Buffer Mitigation Bank Parcel (“Bank Parcel”), to provide
Catawba River Basin Riparian Buffer mitigation credits (“Riparian Buffer Credits”) is made and
entered into by and among Environmental Banc and Exchange (“EBX, 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 the Consolidated Mitigation Rule
15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachment A).

The purpose of this 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 Catawba River Basin.

B. To convert agricultural land uses within riparian areas adjacent to streams , ponds, 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 to third parties in the Catawba
River Basin, 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 for impacts due to development activities.

B. The GSA for this instrument is limited to the Catawba River Basin watershed as defined in rule
15A NCAC 02B .0295 L.1.

C. Sale or transfer of Riparian Buffer Credits shall be limited to Catawba River Basin watershed, as
defined in rule 15A NCAC 02B .0243, unless otherwise authorized by the DWR or delegated local
government in accordance with 15A NCAC 02B .0295.

D. The following table provides site-specific details of the Bank Parcel proposed under this
Instrument, which is within the Catawba River Basin watershed (8-digit HUC 03050101);

Table 1.0 – Site-specific Details
Bank Parcel
Name
County 14-Digit USGS
HUC
DWR Project # Project
Location
Named Receiving
Stream
Primary Land
Use/s
Dogtown Catawba 03050101140010 unknown 35.752292,
-81.187442
Baker’s Creek Agricultural and
cattle pasture

III. AUTHORITIES
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A. The Bank will be used to provide Riparian Buffer 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 Consolidated Buffer Rules for The Catawba River Basin.

C. The sale of mitigation credits generated from the Bank Parcel approved under this Instrument,
shall be consistent with approved North Carolina statutes and rules for the Consolidated Buffer
Rules for The Catawba River Basin.

D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development
Packages (BPDP) to generate Riparian Buffer Credits shall be consistent with North Carolina
statutes and rules for the Catawba Riparian Buffer Rules 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, 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 (Restoration 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 DWR for
the mitigation site proposed under this Instrument:

Table 2.0 – Site Viability Letter Details
Bank Parcel NC DWR Site Visit Viability Letter
Received
Viability Letter
Expiration Date
Dogtown
May 2, 2016
March 9, 2017
April 12, 2017
June 16, 2016
April 18, 2017
April 21, 2017
None noted

B. A valid Site Viability Letter is required prior to submittal of the BPDP. Site Viability Letters will
either expire on the dates listed in the table above or upon the submittal of an individual As-Built
Report to the DWR, whichever comes first. If the 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 Parcel proposed for inclusion under this Instrument shall require a 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. This Bank Parcel is slated to be developed in conjunction with the RES Catawba Umbrella
Mitigation Bank, and the Dogtown Mitigation Site, United States Army Corps of Engineers
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(USACE) Action ID # SAW-2017-00608, for stream mitigation. The mitigation plan associated
with this Bank Parcel has been submitted to the Interagency Review Team (IRT) for review and
approval.

E. The 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 this Bank Parcel will be generated along stream channels
and in-line ponds that are proposed for stream mitigation. Stream Mitigation Plans will be
submitted under the RES Catawba 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 and preservation
of DWR riparian buffers as they are defined in 15A NCAC 02B .0243, 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 mitigated area is at least 20 feet as measured perpendicularly
from top of bank.

G. The Bank Parcel is intended to provide Catawba River Basin Riparian Buffer Credit as follows:

1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B
.0295(b) adjacent to mitigated streams.

2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295(b) by placing a
conservation easement around riparian areas along streams as allowed by 15A NCAC 02B
.0295 (o).

3. Diffused flow will be maintained onsite to the maximum extent practicable.

H. The Bank Parcel submitted for review under this Instrument is anticipated to begin stream
mitigation construction in Winter 2020.

V. BANK PARCEL DEVELOPMENT PACKAGE
A. The Bank Parcel Development Package (BPDP) submitted under this Instrument shall be
submitted to DWR for review and must be approved by DWR prior to any construction on the
Bank Parcel. The BPDP must describe any changes that have occurred to the site between the date
of the Site Viability Letter and the date the BPDP is submitted to DWR. The BPDP shall include
detailed information consistent with the sections below concerning; 1) site location (14-digit HUC
is required); 2) existing conditions with current photos; 3) proposed buffer mitigation activities
including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances;
6) associated buffer mitigation 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.

5

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 riparian buffers and other riparian areas
on the Bank Parcel to produce Riparian Buffer 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 the Bank Parcel. All restoration activities must be
performed in concurrence with any stream 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 for the Bank Parcel

E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements at
the Catawba County Register of Deeds’ 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 USACE 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 and the USACE.

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 the Bank Parcel

J. Following approval of the BPDP for the 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
6

responsibility to confirm that the surety company is rated no less than an “A-” with each annual
bond renewal.

K. The amount of the Performance Bond shall be 100% of the estimated cost for implementation of
the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond shall be
less than $150,000.00 to cover construction costs.

L. Alternatively, in lieu of posting Performance Bonds, the Sponsor may elect to construct the
projects prior to the first credit releases.

M. For the 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 THE 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 Catawba River Basin
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
riparian buffer mitigation areas. The as-built report will describe any deviation from the approved
BPDP and will document the following:

1. Buffer restoration and planting details, invasive species control, confirmation of fence
installation (if applicable), 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 has been
completed.

7

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 mitigation
credits in both square feet and acres.

4. As-built map of the mitigation area showing where riparian restoration 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.

6. Aerial map of the mitigation area that was included in the approved BPDP.

Financial Assurance for the Bank Parcel

C. After completion of the restoration/construction on the Bank Parcel, a 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 the 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 renewals.

D. A Performance/Maintenance Bond shall be secured each year for a minimum of five years, and
until DWR has released all mitigation credits to the Bank Sponsor. Upon receiving a credit release
letter from DWR approving a monitoring report with no contingencies , the bond may be lowered
for that next year’s monitoring 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. Once DWR has released 100% of all credits for completion of all Bank Parcel milestones described
in Table 3.0 of Section VIII and in the corresponding BPDP, the Bank Sponsor will be released
from its performance obligations under the performance bond required in C and D 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.

8

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: 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 the 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; and

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.

9

VII. CALCULATION OF MITIGATION CREDITS FOR THE BANK PARCEL
Riparian Buffer Credits

A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in
15A NCAC 02B .0295(m) and (n).

B. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295(n) and
(o)(3), and defined in 15A NCAC 02B .0295(b) may be used for Riparian Buffer Credit.

C. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 0 2B .0295 (o) and
defined in 15A NCAC 02B .0295 (b), can only be used for 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.

E. Pursuant to 15A NCAC 02B .0295(l)(6)(B), “Buffer mitigation credit shall not be generated within
wetlands that provide mitigation credit required by 15A NCAC 02H .0506”.

Commented [KW1]: Katie, would you like VII.C. to remain in
this document?
10

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 the Bank Parcel will become available
for sale to a third party in accordance with the Credit Release Schedule below in Table 3.0.

Table 3.0 - Credit Release Schedule for Riparian Buffer Credits
Task Project Milestone % Credit
Release
% Credit Release
within the Pond
Footprints
1
Instrument and BPDP Approved by DWR, Conservation Easement
Recorded and Assigned according to Item B (1) of Section X in this
Instrument* and Financial Assurance Posted
25
No credits released
for areas within
pond footprints
2 Mitigation Site Earthwork, Planting and Installation of Monitoring Devices
Completed and all Applicable Permits Obtained 20
No credits released
for areas within
pond footprints
3 Monitoring Financial Assurance Posted and Approval of As-Built Report 10 50
4 Monitoring Report #1: Approved by the DWR** & financial assurance
renewed 10 10
5 Monitoring Report #2: Approved by the DWR** & financial assurance
renewed 10 10
6 Monitoring Report #3: Approved by the DWR** & financial assurance
renewed 10 10

No remaining credits will be released until the conservation easement has been assigned to an approved land trust
or stewardship
7 Monitoring Report #4: Approved by the DWR** & financial assurance
renewed 5 5
8 Monitoring Report #5: Approved by the DWR** and final site visit by
DWR has been conducted 10 10
Total 100% 100%
* For specification, please see Section V in this Instrument
** DWR Approval provided upon a determination that the site is meeting performance standards contained within the
approved BPDP

B. DWR may modify the 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.

C. 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.

D. The Sponsor must initiate implementation of the approved BPDP for the 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
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Credit Ledgers

A. The Bank Sponsor shall maintain a credit ledger for the bank parcel under this Instrument: The
credit ledger shall provide the accounting for Riparian Buffer Credit in square feet and acres.

B. The credit ledger shall be submitted on a separate 8 ½ inch by 11-inch spreadsheet with legible
font style and font size. The ledger shall be submitted using the templates provided in Attachment
B of this Instrument or any updated versions to these templates as provided by DWR.

Credit Processing

C. Riparian Buffer Credits generated on this Bank Parcel will be used to provide mitigation for
authorized buffer impacts within the Catawba River Basin Watershed according to 15A NCAC
02B .0295(g).

D. The Bank Sponsor shall obtain written verification of buffer mitigation required from the delegated
local government in the Catawba River Basin Watershed or DWR prior to debiting Riparian Buffer
Credits from the individual Bank Parcel.

E. All credit and debit transactions for the 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
the 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 and all corresponding letters from the des ignated or delegated local governments or
DWR where applicable once a year. Notification of all credit sales shall be provided to DWR until
all credits that have been released have been sold.

Mitigation Credit Transfer Certificates

F. All credit sales will include a Mitigation Credit Transfer Certificate (“Certificate”) that is required
to be provided to the buyer of Riparian Buffer credits, that will include , at a minimum, the
following information:

1. Bank Details: (1) Bank Sponsor Name, (2) Bank Parcel as it appears in this Instrument, (3)
DWR project number for the BPDP.

2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 – when
applicable) amount of nitrogen credits purchased in pounds and confirmation from the
designated local government of the amount required, and (4 – when applicable) amount of
phosphorus credits purchased in pounds and confirmation from the designated local
government of the amount required, and (5 – when applicable) amount of Riparian Buffer
Credits purchased in square feet and the confirmation from DWR or the local government
of the amount required.

3. Permitted Project Details: (1) project name as it appears on DWR or local government
permits and/or certifications, (2) 14-digit HUC, (3) the subwatershed within the Catawba
12

River Basin watershed, (4-when applicable) nutrient strategy applicable to the project, (5
– when applicable) designated local government requiring Riparian Buffer 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 Riparian Buffer Credits left to sell.

B. Bank Parcel Closure shall commence only after all of the following events have occurred:

1. Transfer or assign the conservation easement and all of its interests, in perpetuity, to a land
trust or stewardship program as described in Section V of this Instrument.

2. All five years of monitoring completed, and all monitoring reports submitted and approved
by DWR.

3. All credits have been released and debited and updated ledgers showing zero credit
balances have been submitted and approved by DWR.

XI. GENERAL PROVISIONS FOR THE BANK PARCEL
A. Upon the presentation of proper credentials, and during normal business hours, t he 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.

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 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.

Commented [KW2]: Katie, do you want these two clauses
included?
13

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, 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 and,

8. Information requests, file reviews and audits

G. Reports, ledgers, files and other information shall be made available to DWR upon request, unless
otherwise specified in this or any other document.

H. Validity of the Banking Instrument: This Instrument will become valid on the date of the last
party’s signature.

I. 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.

J. 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.

K. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently, and
voluntarily.

14

L. 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: Environmental Banc & Exchange, LLC
Attention: Ms. Katie Webber
302 Jefferson Street Suite 110
Raleigh, North Carolina 27605

Katie Webber
[e-mail]

If to DWR: NC Division of Water Resources – 401 & Buffer Permitting Branch
Attn: Nutrient Offset and Buffer Banking Coordinator
1617 Mail Service Center
Raleigh, NC 27699-1617
15

M. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina.

ENVIRONMENTAL BANC & EXCHANGE, LLC

By: (Print)

(Signature)
Title:

Date:

NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY-DIVISION OF WATER
RESOURCES

By: (Print)

(Signature)
Title:

Date:

Nutrient Offset Program & Buffer Mitigation Program
Authorities for UMBI/MBI
Updated
03/26/2013

Attachment A
All Basins

General Statutes:
G.S. §143-214.1 Water; water quality standards and classifications; duties of Commission
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. §143-215.3(a)(1) General powers of Commission and Department; auxiliary powers
G.S. §143-215.6A Enforcement Procedures: Civil Penalties
G.S. §143-215.6B Enforcement Procedures: Criminal Penalties
G.S. §143-215.6C Enforcement Procedures: Injunctive Relief
G.S. §143-215.8B Basinwide Water Quality Management Plans
G.S. §143B-282 Environmental Management Commission – creation; powers and duties

Session Laws
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 .0269 Riparian Buffer Mitigation Fees to the NC Ecosystem Enhancement Program
15A NCAC 02B .0274 Nutrient Offset Payment Rates for the NC Ecosystem Enhancement Program
15A NCAC 02B .0301 Stream Classifications

Neuse River Basin Buffer and Neuse Nutrient Strategy
Session Laws
S.L. 2011-394
S.L. 1998-221 (Part I)
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 .0234 NPDES Wastewater Discharge Requirements
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
15A NCAC 02B .0242 Mitigation Program for Protection and Maintenance of Riparian Buffers

Attachment A
Authorities Pertaining to Dogtown Buffer Mitigation Instrument
Neuse River Basin Buffer and Falls Lake Nutrient Strategy
General Statutes and Session Laws:
G.S. §143-214.5 Water Supply Watershed Protection
S.L. 2012-187
S.L. 2011-394
S.L. 2009-486
S.L. 1998-221 (Part I)

Administrative Rules:
15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers
15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers
15A NCAC 02B .0242 Mitigation Program for Protection and Maintenance of Riparian Buffers
15A NCAC 02B .0275 Purpose and Scope
15A NCAC 02B .0276 Definitions
15A NCAC 02B .0277 Stormwater Management for New Development
15A NCAC 02B .0278 Stormwater Management for Existing Development
15A NCAC 02B .0279 Wastewater Discharge Requirements
15A NCAC 02B .0280 Agriculture
15A NCAC 02B .0281 Stormwater Requirements for State and Federal Entities
15A NCAC 02B .0282 Options for Offsetting Nutrient Loads

Jordan Buffer and Jordan Water Supply Nutrient Strategy
General Statutes and Session Laws:
G.S. §143-214.5 Water Supply Watershed Protection)
S.L. 2012-201
S.L. 2012-187
S.L. 2009-216
S.L. 2009-484
S.L. 2006-259 (Section 31(a))
S.L. 2005-190
S.L. 1999-329 (part of G.S. 143B-282)

Administrative Rules:
15A NCAC 2B .0262 Purpose and Scope
15A NCAC 2B .0263 Definitions
15A NCAC 2B .0264 Agriculture
15A NCAC 2B .0265 Stormwater Management for New Development
15A NCAC 2B .0267 Jordan Water Supply Nutrient Strategy
15A NCAC 2B .0268 Mitigation for Riparian Buffers
15A NCAC 2B .0270 Wastewater Discharge Requirements
15A NCAC 2B .0271 Stormwater Requirements for State and Federal Entities
15A NCAC 2B .0272 Fertilizer Management
15A NCAC 2B .0273 Options for Offsetting Nutrient Loads

Nutrient Offset Program & Buffer Mitigation Program
Authorities for UMBI/MBI
Updated
03/26/2013

Tar-Pamlico River Basin Buffer and Tar-Pamlico Nutrient Strategy
Session Laws:
S.L. 2011-394
S.L. 1999-329 (part of G.S. 143B-282)

Administrative Rules:
15A NCAC 2B .0229 Nutrient Offset Payments for Non-Tar-Pamlico Basin Association Members
15A NCAC 2B .0255 Agricultural Nutrient Loading Goals
15A NCAC 2B .0256 Agricultural Nutrient Control Strategy
15A NCAC 2B .0257 Nutrient Management
15A NCAC 2B .0258 Basinwide Stormwater Requirements
15A NCAC 2B .0259 Protection and Maintenance of Existing Riparian Buffers
15A NCAC 2B .0260 Mitigation Program for Protection and Maintenance of Existing Riparian Buffers
15A NCAC 2B .0261 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers
*Credits shown below are only for mitigation credits approved by the UMBI, BPDP, and As-Built.Sale/ Release DatePurchaser Name or % of Credit ReleaseProject w/ 14 Digit HUC Local Gov'tSquare Feet Acres Square Feet AcresSquare FeetAcres Credits Released/Available to BankCredits Debited/Sold From BankBuffer Credit Balance(Sponsor Name & Instrument Name)(Parcel Name w/ HUC #) Buffer Credit LedgerDate Last Updated:DWR Bank Parcel Project #: Total Credits Released To Date:Attachment B