20180975 Ver 2_Signed MBI_20200326

AGREEMENT TO ESTABLISH THE BLACK BULL MITIGATION BANKING INSTRUMENT IN THE HAW RIVER
SUBWATERSHED FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO
THE JORDAN LAKE NUTRIENT MANAGEMENT STRATEGY
TABLE OF CONTENTS
I. PREAMBLE.........................................................................................................................................3
IL LOCATION AND GEOGRAPHIC SERVICEAREA.........................................................................................3
III. AUTHORITIES.....................................................................................................................................4
IV. ESTABLISHMENT OF THE BANK PARCEL(S)........................................................................................4
V. BUFFER MITIGATION & NUTRIENT OFFSET PLAN..............................................................................6
Property Disposition & Long Term Management for Each Bank Parcel ...................................................
7
Financial Assurances for the Bank Parcel.................................................................................................8
VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL................................................8
As -Built Report ..........................................................................................................................................8
Financial Assurances for Each Bank Parcel...............................................................................................9
Monitoringand Maintenance.................................................................................................................10
K. Monitoring Reports for Riparian Buffer Credit and Nutrient Offset Credit: ...................................
10
VII. CALCULATION OF MITIGATION CREDITS FOR THE BANK PARCEL...................................................11
RiparianBuffer Credits............................................................................................................................11
NutrientOffset Credits............................................................................................................................12
Vill. CREDIT RELEASE SCHEDULE.............................................................................................................14
IX. PROCEDURE FOR DEBITING AND CREDITING..................................................................................15
CreditLedger...........................................................................................................................................15
CreditProcessing....................................................................................................................................15
Mitigation Credit Transfer Certificates...................................................................................................16
X. BANK PARCEL CLOSURE...................................................................................................................17
XI. GENERAL PROVISIONS FOR EACH BANK PARCEL............................................................................17
1

TABLES
Table1.0 Bank Parcels.................................................................................................................................4
Table 2.0. Site Viability Letter Details...........................................................................................................5
Table 3.0. Generated Credit Yield for Forest Buffer Restoration in the Haw Sub-watershed....................12
Table4.0. Delivery Factors..........................................................................................................................13
Table 5.0. Credit Release Schedule for RIPARIAN BUFFER CREDITS & Nutrient Offset Credits .................14
ATTACHMENTS
A Division of Water Resources Authority Document
B Delivered Credit Yield Table for Jordan Sub Watersheds dated December 20, 2012
C Rule Text 15A NCAC 028.0240
D Rule Text i5A NCAC 02B .0295 (Effective November 2015)
F Jordan Lake Buffer Ledger Template
G Jordan Lake Nutrient Offset Ledger Template

This Black Bull Mitigation Banking Instrument ("Instrument") documents the procedures for the
establishment, use, operation, and maintenance of the Black Bull Nutrient Offset and Buffer Mitigation
Bank Parcel to provide Jordan Lake Riparian Buffer mitigation credits ("Riparian Buffer Credits") and
Jordan Lake Nutrient Strategy nutrient load reduction credits ("Nutrient Offset Credits"). This instrument
is made and entered into by KCI Technologies, Inc. acting as the Bank Sponsor ("Sponsor"), and the
North Carolina Department of Environmental Quality - Division of Water Resources ("DWR"). This
Instrument has been developed in accordance with 15A NCAC 02B.0240 and the Consolidated
Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachments C and
D, respectively).
The purpose of this Bank Parcels is:
A. To restore, enhancement and preserve riparian vegetation adjacent to mitigated streams and/or
agricultural ditches with the intent to improve water quality within the Haw River Sub -
watershed of the Jordan Lake Watershed.
B. To convert agricultural land uses within riparian areas adjacent to mitigated 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 Haw River Sub -watershed of Jordan Lake 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 Credit for impacts due to
development activities.
B. The GSA for this instrument is limited to the Haw River sub -watershed of Jordan Lake as defined
in Rule 15A NCAC 02B .0262.
C. Sale or transfer of Riparian Buffer Credits shall be limited to the Haw River Sub -watershed of the
Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262, unless otherwise authorized by
the DWR or delegated local government in accordance with 15A NCAC 02B .0295.
D. Sale or transfer of delivered Nutrient Offset Credits shall also be limited to the Haw River Sub -
watershed of the Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262 and in
accordance with 15A NCAC 02B .0240 unless otherwise authorized by the DWR in accordance
with Session Law 2019-86.

E. The following table provides site -specific detail of each Bank Parcel proposed under this
instrument.
Table 1.0 Bank Parcel
Bank Parcel
Name
DWR #
County
Coordinates 14-Digit
1
Alamance
Black Bull
2018-0975v2
35.9803 N,-79.4845 W 03030(
III. AUTHORITIES
Named Receiving
Primary Land
t USGS HUC
Stream
Use/s
South Prong
Crop Fields,
)02040080
Stinking Quarter
Cattle Pasture
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 subsequently approved North Carolina statutes and
rules for the Jordan Lake Nutrient Sensitive Water Management Strategy.
C. The selling of mitigation credits generated from the Bank Parcels approved under this
Instrument shall be consistent with approved North Carolina statutes and rules for the Jordan
Lake Nutrient Sensitive Waters Management Strategy.
D. Mitigation activities proposed under this Instrument and corresponding Buffer Mitigation &
Nutrient Offset Plan ("Plan") to generate Riparian Buffer Credits and Nutrient Offset Credits shall
be consistent with North Carolina statutes and rules for the Jordan Lake Nutrient Sensitive
Waters Management Strategy that are in place at the time a complete Plan is submitted to
DWR.
IV. ESTABLISHMENT OF THE BANK PARCEL(S)
A. In accordance with 15A NCAC 026.0295 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. Table 2.0 below
outlines when a Site Viability Letter was issued by NCDWR for the mitigation sites proposed
under this Instrument:
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Table 2.0. Site Viability Letter Details
Bank Parcel
NC DWR Site Visit Viability Letter Received
Viability Letter
Expiration Date
Black Bull Site
October 15, 2018
November 15, 2018
November 15, 2020
B. A valid Site Viability Letter is required prior to submittal of each Plan. Site Viability Letters will
either expire on the dates listed in the table above or upon submittal of an individual As -Built
Report to the DWR, whichever comes first. If a Site Viability Letter expires prior to submittal of a
complete Plan 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 Buffer Mitigation &
Nutrient Offset Plan ("Plan") be submitted to, and approved, by the DWR prior to use of the
individual Bank Parcel for mitigation purposes or the sale or transfer of any associated credits.
The contents of each Plan are provided in Section V.
D. This Bank Parcel is also proposed under the KCI Cape Fear 02 Umbrella Mitigation Banking
Instrument (KCI Cape Fear 02 UMBI), United States Army Corps of Engineers (USACE) Action ID
#SAW-2018-00967 for stream and wetland mitigation. The KCI Cape Fear 02 UMBI and the site -
specific Mitigation Plan for the Black Bull Site, were submitted to the IRT for review and
approval.
E. The Plan 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 the Bank Parcel will be generated along restored stream
channels that are proposed for stream mitigation. Stream Mitigation Plans will be submitted
under the KCI Cape Fear 02 UMBI referenced in "D" in this section. Additionally, all activities
conducted within riparian buffers and adjacent riparian areas for purposes of generating
Riparian Buffer Credits or Nutrient Offset Credits will be conducted in concurrence with stream
and wetland mitigation activities. In general, the Bank Sponsor expects all buffer mitigation
credits to be generated through restoration, enhancement and/or preservation of DWR riparian
buffers as they are defined in 15A NCAC 02B.0267, and other riparian areas as allowed per 1SA
NCAC 02B .0295 (n) and (o). Riparian Buffer Credits are only attainable if the width of the
mitigated area is at least 20 feet as measured perpendicular from top of banks.

G. The Bank Parcel is intended to provide Jordan lake Riparian Buffer Credit as follows:
1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 028.0295,
(b) adjacent to mitigated streams.
2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (b) along streams allowed
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
02B .0295 (o)(6).
4. Diffused flow will be maintained onsite to the maximum extent practicable.
H. Nutrient Offset Credit maybe achieved on these Bank Parcels through restoration of riparian
areas, where agriculture is the predominant land use. The width of the restoration area begins
at the most landward limit top of the bank or the rooted herbaceous vegetation and extends
landward a minimum of 50' and a maximum of 200 feet on all sides of the surface waters.
I. The Bank Parcel will provide Nutrient Offset Credit in accordance with 15A NCAC 02B .0240 and
is expected to provide Nutrient Offset Credit as follows:
1. Converting agricultural land uses within riparian areas to non-agricultural land uses.
2. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 0213.0295
(b) adjacent to streams where agriculture has been determined to be the predominant land
use.
J. The Bank Parcels submitted for review under this Instrument is anticipated to begin
construction of stream and wetland mitigation activities in the spring of 2020.
V. BUFFER MITIGATION & NUTRIENT OFFSET PLAN
A. The Plans 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 Plan must describe any
changes that have occurred to the site between the date of the Site Viability Letter and the date
the Plan is submitted to DWR. The Plan 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 and nutrient offset activities including a detailed
vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated
buffer mitigation/nutrient credit calculations, which shall include credit generation, service area,
and accounting as appropriate for each regulatory authority; 7) stream buffer determination
letter from DWR; 8) Site Viability Letter from DWR; 9) a figure depicting the proposed stream
6

and wetland 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 and/or enhancement 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 Bank Parcels. All restoration and enhancement activities must be
performed in concurrence with any stream or wetland mitigation activities and not before.
D. Requests for deviation from the approved Plan must be submitted to DWR in writing. Written
approval from the DWR must be received prior to implementing any deviation from the
approved Plan.
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 Alamance County Register of Deed's office that are sufficient to ensure protection,
operation, and maintenance of restored riparian buffers and other riparian areas for the
duration specified in the approved Plan.
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.
7

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 Plan.
Financial Assurances for the Bank Parcel
J. Following approval of the Plan 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 Bank Parcel according to the approved Plan. 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 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 Plan. No bond shall
be less than $150,000.00 to cover construction costs.
L. Alternatively, in lieu of posting a Performance Bond, the Sponsor may elect to construct the
project prior to the first credit release.
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 Plan Approved by DWR, Conservation Easement Recorded, Financial
Assurance Posted;
2. Mitigation Site Earthwork, Planting and Installation of Monitoring Devices Completed and all
applicable permits obtained
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
8

Instrument and corresponding Plans, to establish, maintain, and monitor Jordan Lake Riparian
Buffers or other riparian areas until Items 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 each Bank Parcel separately 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 Plan and will document the following:
1. Buffer restoration and enhancement planting details, confirmation of fence installation,
invasive species control, monitoring device locations, vegetation plot locations, and photo
point locations.
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 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 were performed and any deviations to the Bank Parcel from what was
approved in the Plan.
S. Aerial map of the mitigation that was included in the approved Plan.
6. As -built map of the stream and/or wetland mitigation areas.
Financial Assurances 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 Plan and As -Built Report. 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 the surety company is still rated no less than an "A-" with
each 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 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.
9

E. For the Bank Parcel, once DWR has released 100% of all credits for completion of all Bank Parcel
milestones described in Table 5 of Section VIII and in the corresponding Plan, the Bank Sponsor
will be released from its performance obligations under the performance bond required in C and
D in this section.
F. To comply with this section, DWR must be the Obligee on all performance bonds.
Monitoring -and Maintenance
G. The Sponsor shall monitor the Bank Parcel as described in the Plan 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 Plan 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 diffused flow,
managing invasive species, and pest control will be included in the Plan.
Monitoring Reports for Riparian Buffer Credit and Nutrient Offset Credit
K. 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 at the date of acceptance of the Plan. The Sponsor shall submit
to the DWR an annual monitoring report no later than December 31st 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 Plan. 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
10

3. A map, survey, or other figures showing locations of sampling plots, permanent photo
points, and location of transects, Etc.; and
4. Monitoring data, including specific vegetation 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 lodgers; 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 (when applicable).
Contingency Plans Remedial Actions
L. In the event a Bank Parcel fails to achieve the performance criteria described in this Instrument
and in the approved Plan, the Bank Sponsor shall develop necessary contingency plans in
coordination with the DWR and implement appropriate remedial actions for the Bank Parcels
and the Bank. Depending on the degree remedial actions required, the DWR may modify the
monitoring period.
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 as described in 15A NCAC 02B .0295 (n) or (o) and defined in 15A
NCAC 02B .0295 (b) and performed on agriculture lands within the Bank Parcels, may be used
for either Riparian Buffer Credit or Nutrient Offset Credit but not both. Riparian restoration on
non -agriculture lands can only be used for Riparian Buffer Credit.
C. Riparian buffer enhancement on these Bank Parcels, as described in 15A NCAC 026 .0295 (o)(6),
can only be used for Riparian Buffer Credit.
D. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (o) (5) and
defined in 15A NCAC 02B .0295 (b), can only be used for Riparian Buffer Credit.
E. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer
credits per one acre.
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F. 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
G. The acreage of Nutrient Offset Credits on the Bank Parcel submitted under this Instrument is
determined by applying the applicable ratio as provided in 15A NCAC 02B .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 the site viability letter
as agriculture.
H. Nutrient Offset Credits cannot be achieved on the Bank Parcels in areas where preservation
activities are performed or where enhancement is proposed under 15A NCAC 02B .0295 (o)(6).
I. Nutrient Abatement of Restored Riparian Areas on Agricultural Lands: The Sponsor and DWR
agree to the following:
1. Pursuant to the Jordan Trading Rule Item 15A NCAC 02B .0273 (2)(a), load reductions
eligible for credit are only those that exceed reduction needs calculated by applying the
strategy sub -watershed percentage reduction goals as provided in 15A NCAC 02B .0262 (5).
For the Haw River Sub -watershed, this requirement results in a reduction of credits yielded
per acre for restored riparian buffers when compared with the credit given in other river
basins. Table 3.0 below lists the generated credit per acre of restored riparian buffer for the
Haw -River Sub -watershed.
Table 3.0. Generated Credit Yield for Forest Buffer Restoration in the Haw Sub -watershed.
Credit Generated (lbs./30 yrs./ac.)
Jordan Lake Sub -watershed Nitrogen Phosphorus
Haw River 2,249.36 143.81
J. As required under Jordan Trading Item 15A NCAC 02B .0273 (2)(d)(i), the party seeking to sell
credits must account for differences in instream nutrient losses between the location of the
reduction need and excess loading reduction being delivered to the affected area of Jordan
Lake. Attachment B produced the delivered Jordan Lake Total Nitrogen (TN) and Jordan lake
Total Phosphorous (TP) credit yields per acre of buffer restoration by each Jordan Lake 14-Digit
HUC sub -watershed.
1. Delivered credits are calculated by applying the delivery factors in Table 4.0 below and the
acreage of riparian restoration to the generated credit yields from Table 3.0 above. The .
delivery factors for the Bank Parcel under this Instrument for Total Nitrogen (TN) and Total
Phosphorus (TP) are provided in Table 4.0 below using Attachment B for reference. The
12

amount of delivered credits for the Bank Parcel will be detailed in the Plan for each Bank
Parcel.
Table 4.0. Delivery Factors
Delivery Factors
TN TP
Black Bull 53% 51%
The Bank Sponsor shall report the pounds of nitrogen and phosphorus credit per acre of
restored riparian buffer in each Bank Parcel's Plan for both credits generated at the site of
the nutrient reduction activity and the credits delivered to Jordan Lake.
K. The Sponsor and DWR agree the methodology and calculations for determining nitrogen and
total phosphorous reduction, associated with restoration of riparian areas as described in
Section IV of this Instrument, shall be fixed as part of the approval of this Instrument, with the
fixed amount not changing during Plan Development or credit release schedule for the Bank
Parcel unless the viability letter for that Bank Parcel has expired.
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Vlll. 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 5.0. Credit Release Schedule for Nutrient Offset Credits at Black Bull Site
% Credit Available for
Task
Project Milestone
Sale
Instrument and Plan Approved by DWR, Conservation
1
25
Easement Recorded* and Financial Assurance Posted
Mitigation Site Earthwork, Planting and Installation of
2
20
Monitoring Devices Completed, all applicable permits obtained
Monitoring Financial Assurance Posted and Approval of As-Built
3
10
Report
Monitoring Report #1: Approved by the DWR** & financial
4
10
assurance renewed
Monitoring Report #2: Approved by the DWR** & financial
5
10
assurance renewed
Monitoring Report #3: Approved by the DWR** & financial
6
10
assurance renewed
Monitoring Report #4: Approved by the DWR** & financial
7
5
assurance renewed
Monitoring Report #5: Approved by the DWR** and final site
B
10
visit by DWR has been conducted
Tota 1
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 Plan
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.
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 Plan for each site under this
Instrument in concurrence with all stream and/or wetland mitigation activities proposed in the
approved Mitigation Plans referenced in Item D of Section IV of this Instrument.
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IX. PROCEDURE FOR DEBITING AND CREDITING
Credit Ledger
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 Riparian Buffer 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 X in. x 111n. spreadsheet with legible font
style and font size. All ledgers shall be submitted using the templates provided in Attachments E
and F of this Instrument or any updated versions to these templates as provided by DWR.
Credit Processine
C. Riparian Buffer Credits generated on this Bank Parcels will be used to provide mitigation for
authorized buffer impacts within the Haw River Sub -watershed of Jordan Lake in accordance
with 15A NCAC 02B .0295 (g).
D. Nutrient Offset Credits generated on this Bank Parcels will be used to offset nitrogen and
phosphorus nutrient loads within the Haw River Sub -watershed of Jordan Lake in accordance
with 15A NCAC 02B .0240.
E. Available nutrient offset credits (credits that have been released by DWR but not sold by the
Sponsor) that are generated from riparian restoration within 0-100' from top of intermittent
and perennial stream banks, as defined in 15A NCAC 02B .0295 (b) and described in 15A NCAC
02B .0295 (n) and 15A NCAC 02B .0295 (o) may be converted and transferred from Nutrient
Offset Credits to Riparian Buffer Credits upon written approval from DWR. Once a credit has
been converted to another credit type, the transaction is permanent, and the credit cannot be
converted again.
F. Available riparian buffer credits (credits have been released by the DWR but not sold by the
Sponsor) that are generated from riparian restoration on agricultural lands within 0-200' from
top of stream banks, as defined in 15A NCAC 02B .0295 (b) and described in 15A NCAC 02B
.0295 (n) and 15A NCAC 02B .0295 (o) may be converted and transferred from Riparian Buffer
Credits to Nutrient Offset Credits upon written approval from DWR. Once a credit has been
converted to another credit type, the transaction is permanent, and the credit cannot be
converted again.
G. Riparian Buffer Enhancement and Preservation credits generated from the Bank Parcel, under
this Instrument are not transferrable into nutrient offset credits.
15

H. The Bank Sponsor shall obtain written verification of buffer mitigation required from the
delegated local government in the Haw River Sub -watershed or DWR prior to debiting Riparian
Buffer Credit from the individual Bank Parcel.
I. The Bank Sponsor shall obtain written verification of nutrient offset need from a designated
local government in the Haw River Sub -watershed or from DWR through an approved NPDES
permit for wastewater nutrient sources, prior to debiting Nutrient Offset Credits from the
individual Bank Parcel.
J. 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 theBank 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.
Mitigation 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;
1. Bank Details: (1) Sponsor Name, (2) Bank Parcel name as it appears in this Instrument and,
(3) DWR project number for the Plan.
2. Credit Details: [1) date of receipt, (2) identify if providing full or partial amount of required
credits, (3-when applicable) amount of nitrogen credits purchased in pounds and
confirmation from the designated local government of the amount required, (4- when
applicable) amount of phosphorous credits purchased in pounds and confirmation from the
designated local government of the amount required, and (5- when applicable) amount of
Riparian Buffer Credits purchased in square feet and the confirmation from DWR or the local
government of the amount required.
3. Permitted Project Details: (1) project name as it appears on DWR or local government
permits and/or certifications, (2)14-digit HUC, (3) the sub -watershed within the Jordan
Lake, (4) the 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 Butter Credits for this project.
L. If the DWR determines 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
16

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 its
responsibilities to the Bank Parcel and there are no mitigation buffer or nutrient offset credits
left to sell.
B. Bank Parcel Closure shall commence only after all the following events have occurred;
1. Transfer or assign the conservation easement and all 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
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 an authorized
representative of the Director of DWR to enter the property containing the Bank Parcel(s).
B. Amendments: This Banking Instrument maybe 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 the credits have been released in accordance with the credit
release schedule in Section VIII of this Instrument 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 in accordance
with the credit release schedule in Section VIII, the Sponsor shall take remedial action to restore
17

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. Plan 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 listen in Section VI of this Instrument,
6. Credit Ledger review and approval of items listen 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 this Instrument: This Instrument will become valid on the date of the last party's
signature.
H. Specific Language of this 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.
18

J. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently and
voluntarily.
K. Notices: All Notices and other communication which maybe 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: KCI Technologies, Inc.
4505 Falls of Neuse Road, Suite 400
Raleigh, NC 27609
[e-mail]
If to DWR: NC Division of Water Resources - 401 & Buffer Permitting Branch
Attn: Nutrient Offset & Buffer 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.
19

Signature Page:
KCI Technologies, Inc.
By:
Title:
Date:
Gary M. Mryncza, PE
i=1,&�
Senior Vice President
02 .. 2..7. '202D
(Print)
(Signature)
North Carolina Department of Environmental Quality-Division of Water Resources
By: (Print)
(Signature)
Title:
Date:
20
Director
March 26, 2020
S. Daniel Smith
Updated
Nutrient Offset Program & Buffer Mitigation Program 10/28/2019
MBI Authorities for KCI Technologies, Inc. effective 02/27/2020
ATTACHMENT A
Authorities pertaining to the Black Bull Mitigation Banking Instrument
All Basins
General Statutes:
G.S. §143-214.11 Ecosystem Enhancement Program
G.S. §143-214.26 Nutrient Offset Credits
G.S. § 143-214.20-24 Riparian Buffer Protection Program
G.S. § 143-214.7 Stormwater runoff rules and programs
G.S. § 143-215.8B Basinwide Water Quality Management Plans
Session Laws
S.L. 2015-246
S.L. 2015-149
S.L. 2014-90
S.L. 2014-120
S.L.2013-413
S.L.2013-121
S.L.2013-265
S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. §143-215.1)
S.L. 2011-343 (Amendment to G.S. §143-214.11)
S.L. 2009- 337 (Amendment to G.S. § 143-214.11)
Administrative Rules:
15A NCAC 02B .0202 Definitions
15A NCAC 02B .0223 Nutrient Sensitive Waters
15A NCAC 02B .0237 Best Management Practice Cost -Effectiveness Rate
15A NCAC 02B .0240 Nutrient Offset Payments
15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers
Jordan Buffer and Jordan Water Supply Nutrient Stratezy
General Statutes and Session Laws:
S.L. 2019-86 (Amendment to G.S. § 143-214.26)
G.S. §143-214.5 Water Supply Watershed Protection)
S.L. 2013-395
S.L. 2012-201
S.L. 2012-200S.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: Protection of Existing 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

Jordan Water Supply Nutrient Strategy I Updated
Delivered Credit Yield Table for Jordan Sub Watersheds 12/20/2012
Attachment B
Delivered credit yields for buffer acres in Jordan small watersheds.
Watershed ID
Jordan
Subwatershed
Delivery Factors
TN TP
TN Credit
(Ibs/30yrs)
TP Credit
(Ibs/30yrs)
03030002010010
Haw
25% 10%
562.34
14.38
03030002010020
Haw
37% 36%
832.26
51.77
03030002010030
Haw
44% 40%
989.72
57.52
03030002010040
Haw
49% 44%
1102.19
63.27
03030002010050
Haw
55% 48%
1237.15
69.03
03030002020010
Haw
15% 4%
337.40
5.75
03030002020020
Haw
22% 12%
494.86
17.26
03030002020030
Haw
48% 43%
1079.69
61.84
03030002020040
Haw
32% 33%
719.80
47.46
03030002020050
Haw
32% 32%
719.80
46.02
03030002020060
Haw
47% 42%
1057.20
60.40
03030002020070
Haw
54% 47%
1214.66
67.59
03030002030010
Haw
60% 56%
1349.62
80.53
03030002030020
Haw
44% 31%
989.72
44.58
03030002030030
Haw
25% 8%
562.34
11.50
03030002030040
Haw
42% 30%
944.73
43.14
03030002030050
Haw
64% 62%
1439.59
89.16
03030002030060
Haw
39% 19%
877.25
27.32
03030002030070
Haw
36% 18%
809.77
25.88
03030002030080
Haw
73% 64%
1642.04
92.04
03030002040010
Haw
30% 14%
674.81
20.13
03030002040020
Haw
28% 14%
629.82
20.13
03030002040030
Haw
71% 63%
1597.05
90.60
03030002040040
Haw
32% 15%
719.80
21.57
03030002040050
Haw
52% 50%
1169.67
71.90
03030002040060
Haw
54% 51%
1214.66
73.34
03030002040070
Haw
67% 60%
1507.07
86.28
03030002040080
Haw
53% 51%
1192.16
73.34
03030002040090
Haw
54% 51%
1214.66
73.34
03030002040100
Haw
75% 65%
1687.02
93.47
03030002040110
Haw
66% 60%
1484.58
86.28
03030002050010
Haw
74% 68%
1664.53
97.79
03030002050020
Haw
81% 74%
1821.98
106.42
03030002050030
Haw
42% 17%
944.73
24.45
03030002050040
Haw
80% 73%
1799.49
104.98
Page 1 of 2

Jordan Water Supply Nutrient Strategy I Updated
Delivered Credit Yield Table for Jordan Sub Watersheds 12/20/2012
Jordan
Delivery Factors
TN Credit TP Credit
Watershed ID
Subwatershed
TN TP
(Ibs/30yrs) (Ibs/30yrs)
03030002050050
Haw
71% 67%
1597.05
96.35
03030002050060
Haw
79% 73%
1777.00
104.98
03030002050070
Haw
78% 72%
1754.50
103.54
03030002050080
Haw
80% 73%
1799.49
104.98
03030002050090
Haw
79% 73%
1777.00
104.98
03030002050100
Haw
81% 75%
1821.98
107.85
03030002060010
Haw
81% 74%
1821.98
106.42
03030002060020
Haw
95% 97%
2136.90
139.49
03030002060030
Haw
88% 91%
1979.44
130.86
03030002060040
Haw
97% 98%
2181.88
140.93
03030002060050
Haw
92% 95%
2069.41
136.61
03030002060062
Haw
UNH
98% 99%
2204.38
142.37
03030002060070
40% 19 %
867.70
27.32
03030002060080
UNH
59% 45%
1279.86
64.71
03030002060100
UNH
69% 63%
1496.79
90.60
03030002060110
UNH
61% 58%
1323.25
83.41
03030002060120
UNH
69% 63%
1496.79
90.60
03030002060140
UNH
85% 89%
1843.87
127.99
03030002060130
UNH
69% 63%
1496.79
90.60
03030002060160
LNH
85% 90%
1932.07
131.76
03030002060090*
UNH
92% 94%
1995.71
135.18
03030002060090*
LNH
92% 94%
2091.18
137.62
03030002060060*
UNH
94% 96%
2039.10
138.05
03030002060060*
LNH
94% 96%
2136.64
140.54
03030002060150*
UNH
88% 91%
1908.94
130.86
03030002060150*
LNH
88% 91%
2000.26
133.22
*Watershed is located in both the Upper New Hope (UNH) and Lower New Hope (LNH) Subwatersheds.
Page 2 of 2

Attachment C: Rule Text 15A NCAC 02B .0240
15A NCAC 02B .0240 NUTRIENT OFFSET PAYMENTS
(a) The purpose of this Rule is to establish procedures for the optional payment of nutrient offset fees to the NC
Ecosystem Enhancement Program, subsequently referred to as the Program, or to other public or private parties where the
Program or such parties implement projects for nutrient offset purposes and accept payments for those purposes, and
where either of the following applies:
(1) The following rules of this Section allow offsite options or nutrient offset payments toward fulfillment
or maintenance of nutrient reduction requirements:
(A) .0234 and .0235 of the Neuse nutrientstrategy,
(B) .0258 of the Tar -Pamlico nutrient strategy, and
(C) applicable rules of the Jordan nutrient strategy, which is described in Rule .0262; and
(2) Other rules adopted by the Commission allowthis option toward fulfillment of nutrient load reduction
requirements.
(b) Offset fees paid pursuant to this Rule shall be used to achieve nutrient load reductions subject to the following
geographic restrictions:
(1) Load reductions shall be located within the same 8-digit cataloguing unit, as designated by the US
Geological Survey, as the loading activity that is being offset;
(2) The Division shall track impacts by 10-digit watershed, as designated by the US Geological Survey
and providers shall locate projects proportional to the location of impactsto the extent that the projects
would meet the least cost alternative criterion per S.L. 2007-438. The location of load reduction
projects shall be reviewed during the approval process described in Paragraph (c) of thisRule;
(3) Impacts that occur in the watershed of Falls Lake in the upper Neuse River Basin may be offset only
by load reductions in the same watershed; Impacts in the Neuse 01 8-digit cataloguing unit below the
Falls watershed, as designated by the US Geological Survey, may be offset only by load reductions in
that same lower watershed;
(4) Restrictions established in the Jordan nutrient strategy, which is described in Rule 15A NCAC 02B
.0262; and
(5) Any further restrictions established by the Commission through rulemaking.
(c) The Program and other parties shall obtain Division approval of proposed nutrient offset projects prior to
construction. Other parties shall sell credits in compliance with approved credit release schedules and with the
requirements of this Rule. Project approval shall be based on the following standards:
(1) Load reductions eligible for credit shall not include reductions used to satisfy other requirements under
the same nutrient strategy;
(2) The Program and other parties shall agree to provide adequate financial assurance to protect and
maintain load reductions for the stated duration, including for maintenance, repair and renovation of
the proposed measure;
(3) The Program and other parties shall agree that once credits are established for a measure and until they
are exhausted, they shall provide a credit/debit ledger to the Division at regular intervals;
(4) The Program and other parties shall agree that the party responsible for a measure shall allow the
Division access to it throughout its lifetime for compliance inspection purposes;
(5) The Program or other party seeking approval shall obtain a site review from Division staff prior to
Division approval to verify site conditions suitable to achieve the proposed load reductions through the
proposed measure; and
(6) The Program shall submit a proposal, and other parties shall submit a proposal or a draft banking
instrument, addressing the following items regarding a proposed load -reducing measure:
(A) Identify the location and site boundaries of the proposed measure, the geographic area to be
served by credits in compliance with the requirements of Paragraph (b) of this Rule, existing
conditions in the contributing drainage area and location of the measure, and the nature of the
proposed measure with sufficient detail to support estimates of load reduction required in this
Paragraph;
(B) Provide calculations of the annual magnitudes of load reductions and identify final credit
values incorporating any delivery factors or other adjustments required underrules identified
in Paragraph (a) of this Rule;
(C) Define the duration of load reductions, and provide a conservation easement or similar legal
mechanism to be recorded with the County Register of Deeds and that is sufficient to ensure
protection and maintenance of load reductions for the stated duration;

(D) Identify the property owner and parties responsible for obtaining all permits and other
authorizations needed to establish the proposed measure, for constructing and ensuring initial
performance of the proposed measure, for reporting on and successfully completing the
measure, for holding and enforcing the conservation easement, and for ensuring protection
and maintenance of functions for its stated duration;
(E) Provide a plan for implementing the proposed measure, including a timeline, a commitment
to provide an as -built plan and report upon establishment of the measure, elements to be
included in the as -built plan and report, a commitment to provide a bond or other financial
assurance sufficient to cover all aspects of establishment and initial performance prior to the
release of any credits, and criteria for successful completion; and
(F) Provide a monitoring and maintenance plan designed to achieve successful completion, that
commits to annual reporting to the Division until success is achieved, that recognizes the
Division's authority to require extension or re -initiation of monitoring depending on progress
toward success, and that commits to a final report upon completion. The final report shall
reaffirm the party that shall hold and enforce the conservation easement or other legal
instrument.
(d) The Program shall establish and revise nutrient offset rates as set out in Rule .0274 of this Section. Offset payments
accepted by the Program shall be placed into the Riparian Buffer Restoration Fund administered by the Department
pursuant to G.S. 143-214.21
(e) Persons who seek to pay nutrient offset fees under rules of this Section shall do so in compliance with such rules, the
requirements of Paragraph (b) of this Rule, and the following:
(1) A non-govemmental entity shall purchase nutrient offset credit from a party other than the Program if
such credit is available in compliance with the criteria of this Rule at the time credit is sought, and
shall otherwise demonstrate to the permitting authority that such credit is not available before seeking
to make payment to the Program;
(2) Offset payments made to the Program shall be contingent upon acceptance of the payment by the
Program. The financial, temporal and technical ability of the Program to satisfy the mitigation request
will be considered to determine whether the Program will accept or deny the request;
(3) Where persons seek to offset more than one nutrient type, they shall make payment to address each
type;
(4) The offset payment shall be an amount sufficient to fund 30 years of nutrient reduction.
(5) Persons who seek offsets to meet new development stormwater permitting requirements shall provide
proof of offset credit purchase to the permitting authority prior to approval of the development plan;
and
(6) A wastewater discharger that elects to purchase offset credits for the purpose of fulfilling or
maintaining nutrient reduction requirements shall submit proof of offset credit acquisition or a letter of
commitment from the Program or third party provider with its request for permit modification.
Issuance of a permit that applies credits to nutrient limits shall be contingent on receipt of proof of
offset credit acquisition. A discharger may propose to make incremental payments for additional
nutrient allocations, contingent upon receiving a letter of commitment from the Program or third party
provider to provide the offset credit needed for permit issuance. In that event the Division may issue
or modify that permit accordingly, and shall condition any flow increase associated with that
incremental purchase on payment in full for the additional allocation. Offset responsibility for nutrient
increases covered under this Paragraph shall be transferred to the Program or third party provider
when it has received the entire payment.
(f) Credits associated with load reducing activities funded under this Rule shall be awarded exclusively to the person,
municipality, discharger, or group of dischargers who paid the offset fee.
History Note: Authority G.S. 143-214.1; 143-214.20; 143-214.21; S.L. 1995, c. 572; S.L. 2007, e. 438; S.L. 2009, c.
337, S.L. 2009, c. 484; S.L. 2009, c. 486;
Eff: August 1, 1998;
Amended Eff. August 1, 2006;
Amended Eff.' September 1, 2010.

Attachment D: Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015)
15A NCAC 02B .0295 MITIGATION PROGRAM REQUIREMENTS FOR PROTECTION AND
MAINTENANCE OF RIPARIAN BUFFERS
(a) PURPOSE. The purpose of this Rule is to set forth the mitigation requirements that apply to applicants listed in
Paragraph (c) of this Rule and to set forth requirements for buffer mitigation providers.
(b) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows:
(1) "Authority" means either the Division or a local government that has been delegated or designated
pursuant to Rules .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter to implement the
riparian buffer program.
(2) "Compensatory Buffer Mitigation Bank" means a buffer mitigation site created by a mitigation
provider and approved for mitigation credit by the Division through execution of a mitigation
banking instrument.
(3) "Division" means the Division of Water Resources of the North Carolina Department of
Environment and Natural Resources.
(4) "Enhancement Site" means a riparian zone site characterized by conditions between that of a
restoration site and a preservation site such that the establishment of woody stems (i.e., tree or shrub
species) will maximize nutrient removal and other buffer functions.
(5) "Hydrologic Area" means the Watershed Boundary Dataset (WBD), located at no cost at
http://data.nconemap.com/geoportal/catalog/search/resource/details.page?uuid=(I 6A42F31 -
6DC7-4 EC3-88A9-03 E6B7D55653) using the eight -digit Hydrologic Unit Code (HUC)prepared
by the United States Geological Survey.
(6) "Locational Ratio" means the mitigation ratio applied to the mitigation requirements based on the
location of the mitigation site relative to the impact site as set forth in Paragraph (f) of this Rule.
(7) "Mitigation banking instrument" means the legal document for the establishment, operation, and
use of a mitigation bank.
(8) "Monitoring period" means the length of time specified in the approved mitigation plan during
which monitoring of vegetation success and other anticipated benefits to the adjacent water as listed
in the mitigation approval is done.
(9) "Non -wasting endowment" means a fund that generates enough interest to cover the cost of the long
term monitoring and maintenance.
(10) "Outer Coastal Plain" means the portion of the state shown as the Middle Atlantic Coastal Plain
(63) on Griffith, et al. (2002) "Ecoregions of North and South Carolina." Reston, VA, United States
Geological Survey available at no cost at
http://www.epa.gov/wed/pages/ccoregions/ncsc_eco. htm.
(11) "Preservation Site" means riparian zone sites that, as determined by a site visit conducted by the
Authority, are characterized by a forest consisting of the forest strata and diversity of species
appropriate for the location.
(12) "Restoration Site" means riparian zone sites that are characterized by an absence of trees and by a
lack of dense growth of smaller woody stems (i.e., shrubs or saplings) or sites that are characterized
by scattered individual trees such that the tree canopy is less than 25 percent of the cover and by a
lack of dense growth of smaller woody stems (i.e., shrubs orsaplings).
(13) "Riparian buffer mitigation unit" means a unit representing a credit of riparian buffer mitigation as
set forth in Paragraph (m) of this Rule.
(14) 'Riparian wetland" means a wetland that is found in one or more of the following landscape
positions:
(A) in a geomorphic floodplain;
(B) in a natural topographic crenulation;
(C) contiguous with an open water equal to or greater than 20 acres in size; or
(D) subject to tidal flow regimes excluding salt/brackish marsh wetlands.
(15) "Stem" means a woody seedling, sapling, shrub, or tree, no less than 10 centimeters in height.
(16) "Urban" means an area that is either designated as an urbanized area under the most recent federal
decennial census available at no cost at http://www.census.gov/ or is located within the corporate
limits of a municipality.
(17) "Zonal Ratio" means the mitigation ratio applied to impact amounts in the respective zones of the
riparian buffer as set forth in Paragraph (e) of this Rule.
(c) MITIGATION REQUIREMENTS. Buffer mitigation is required when one of the following applies:

(1) The applicant has received an authorization certificate for impacts pursuant to Rule .0233, .0243,
.0250, .0259, .0267, or .0607 of this Subchapter and is required to perform mitigation as a
condition of the authorization certificate; or
(2) The applicant has received a variance pursuant to Rule .0233, .0243, .0250, .0259, .0267, or.0607
of this Subchapter and is required to perform mitigation as a condition of a variance approval.
Any applicant covered under this Paragraph shall submit to the Authority a written mitigation proposal that calculates
the required area of mitigation and describes the area and location of each type of proposed mitigation. The applicant
shall not impact buffers until the Authority approves the mitigation plan and issues written approval.
(d) AREA OF IMPACT. The Authority shall determine the area of impact in square feet to each Zone as defined by
the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter of the proposed riparian buffer by
adding the following:
(1) The area of the footprint of the use impacting the riparian buffer;
(2) The area of the boundary of any clearing and grading activities within the riparian buffer
necessary to accommodate the use; and
(3) The area of any ongoing maintenance corridors within the riparian buffer associated with theuse.
The Authority shall deduct from this total the area of any wetlands that are subject to and compliant with riparian
wetland mitigation requirements under 15A NCAC 02H .0506 and are located within the proposed riparian buffer
impact area.
(e) AREA OF MITIGATION REQUIRED ON ZONAL MITIGATION RATIOS. The Authority shall determine the
required area of mitigation for each Zone by applying each of the following ratios to the area of impact calculated
under Para gra . h(d) of this Rule:
Basin/Watershed
Zone 1 Ratio
Zone 2 Ratio
Neuse River Basin (15A NCAC 02B .0233)
3:1
1.5:1
Catawba River Basin (15A NCAC 02B .0243)
2:1
1.5:1
Randleman Lake Watershed (15A NCAC 02B .0250)
3:1
1.5:1
Tar -Pamlico River Basin (15A NCAC 02B .0259)
3:1
1.5:1
Jordan Lake Watershed (15A NCAC 02B .0267)
3:1
1.5:1
Goose Creek Watershed (15A NCAC 02B .0607)
3:1^
The Goose Creek Watershed does not have a Zone 1 and Zone 2. The mitigation ratio in the Goose
Creek Watershed is 3:1 for the entire buffer.
(f) AREA OF MITIGATION REQUIRED ON LOCATIONAL MITIGATION RATIOS. The applicant or
mitigation provider shall use the following locational ratios as applicable based on location of the proposed mitigation
site relative to that of the proposed impact site. Locational ratios shall be as follows:
Location
Ratio
Within the 12-digit HUCA
0.75:1
Within the eight -digit HUCB
1:1
Outside of the eight -digit HUCB
2:1
Except within the Randleman Lake Watershed. Within the Randleman Lake Watershed
the ratio is 1: 1.
B Except as provided in Paragraph (g) of this Rule.
(g) GEOGRAPHIC RESTRICTIONS ON LOCATION OF MITIGATION. Mitigation shall be performed in the
same river basin where the impact is located with the following additional specifications:
(1) In the following cases, litigation shall be performed in the same watershed where the impact is
located:
(A) Falls Lake Watershed, as defined in Rule .0275 of this Section;
(B) Goose Creek Watershed, as defined in Rule .0601 of this Subchapter;
(C) Randleman Lake Water Supply Watershed, as defined in Rule .0248 of this Section;
(D) Each subwatershed of the Jordan Lake watershed, as defined in Rule .0262 of this
Section; and
(E) Other watersheds as specified in riparian buffer protection rules adopted bythe
Commission.
(2) Buffer mitigation for impacts within watersheds with riparian buffer rules that also have federally
listed threatened or endangered aquatic species may be done within other watersheds with the

same federally listed threatened or endangered aquatic species as long as the impacts are in the
same river basin as the mitigation site.
(h) MITIGATION OPTIONS FOR APPLICANTS. The applicant may propose any of the following types of
mitigation:
(1) Riparian buffer restoration or enhancement pursuant to Paragraph (n) of this Rule;
(2) Payment of a compensatory mitigation fee to a compensatory buffer mitigation bank pursuant to
Paragraph (i) of this Rule or payment of a compensatory mitigation fee to the Riparian Buffer
Restoration Fund pursuant to Paragraph 0) of this Rule. Payment shall conform to the requirements
of G.S. 143-214.20;
(3) Donation of real property or of an interest in real property pursuant to Paragraph (k) of this Rule;
(4) Alternative buffer mitigation pursuant to Paragraph (o) of this Rule; or
(5) Other buffer mitigation as approved by the Environmental Management Commission as a
condition of a variance approval.
(i) PURCHASE OF BUFFER MITIGATION CREDITS FROM A PRIVATE OR PUBLIC COMPENSATORY
BUFFER MITIGATION BANK. Applicants who choose to satisfy some or all of their mitigation by purchasing
mitigation credits from a private or public compensatory buffer mitigation bank shall meet the following requirements:
(1) The compensatory buffer mitigation bank from which credits are purchased shall have available
riparian buffer credits approved by the Division;
(2) The compensatory buffer mitigation bank from which credits are purchased shall be locatedas
described in Paragraphs (e), (f), and (g) of this Rule; and
(3) After receiving a mitigation acceptance letter from the compensatory buffer mitigation bank, proof
of payment for the credits shall be provided to the Authority prior to any activity that results in the
removal or degradation of the protected riparian buffer.
0) PAYMENT TO THE RIPARIAN BUFFER RESTORATION FUND. Applicants who choose to satisfy some or
all of their mitigation requirement by paying a compensatory mitigation fee to the Riparian Buffer Restoration Fund
shall meet the requirements of Rule .0269 of this Section. Payment made to the NC Division of Mitigation Services
(DMS) shall be contingent upon acceptance of the payment by the DMS. The DMS shall consider their financial,
temporal, and technical ability to satisfy the mitigation request to determine whether they shall accept or deny the
request.
(k) DONATION OF PROPERTY. Applicants who choose to satisfy their mitigation requirement by donating real
property or an interest in real property to fully or partially offset an approved payment into the Riparian Buffer
Restoration Fund pursuant to Paragraph 0) of this Rule shall do so in accordance with 15A NCAC 02R.0403.
(1) MITIGATION SITE REQUIREMENTS FOR APPLICANTS AND MITIGATION PROVIDERS. For each
mitigation site proposed by an applicant or mitigation provider under Paragraphs (n) or (o) of this Rule, the Authority
shall identify functional criteria to measure the anticipated benefits of the mitigation to the adjacent water. The
Authority shall issue a mitigation determination that specifies the area, type, and location of mitigation and the water
quality benefits to be provided by the mitigation site. All mitigation proposals shall meet the following criteria:
(1) The location of the buffer mitigation site shall comply with the requirements of Paragraphs (f) and
(g) of this Rule. In the Catawba watershed, buffer mitigation may be done along the lake
shoreline as well as along intermittent and perennial stream channels throughout the watershed.
(2) The mitigation proposal shall include a commitment to provide:
(A) a perpetual conservation easement or similar preservation mechanism to ensure perpetual
stewardship that protects the mitigation site's nutrient removal and other water quality
functions;
(B) a non -wasting endowment or other dedicated financial surety to provide for the perpetual
land management and hydrological maintenance of lands and maintenance of structures as
applicable; and
(C) financial assurance in the form of a completion bond, credit insurance, letter of credit,
escrow, or other vehicle acceptable to the Authority payable to, or for the benefit of, the
Authority in an amount sufficient to ensure that the property is secured in fee title or by
easement, and that planting or construction, monitoring and maintenance are completed as
necessary to meet success criteria as specified in the approved mitigation plan. This
financial assurance obligation shall not apply to the NC DMS.

(3) Diffuse flow of runoff shall be maintained in the riparian buffer. Any existing impervious cover or
stormwater conveyances such as ditches, pipes, or drain tiles shall be eliminated and the flow
converted to diffuse flow. If the applicant or mitigation provider determines that elimination of
existing stormwater conveyances is not feasible, then they shall include a justification and shall
provide a delineation of the watershed draining to the stormwater outfall and the percentage of the
total drainage by area treated by the riparian buffer with the mitigation plan specified in Paragraph
(n) or (o) of this Rule for Authority approval. During mitigation plan review and approval, the
Authority may reduce credit proportionally.
(4) Sewer easement within the buffer. If the proposed mitigation site contains a sewer easement in Zone
1, that portion of the sewer easement within Zone 1 shall not be suitable for buffer mitigation credit.
If the proposed mitigation site contains a sewer easement in Zone 2, the portion of the sewer
easement in Zone 2 may be suitable for buffer mitigation credit if:
(A) the applicant or mitigation. provider restores or enhances the forested buffer in Zone 1
adjacent to the sewer easement;
(B) the sewer easement is required to be maintained in a condition that meets the vegetative
requirements of the collection system permit; and
(C) diffuse flow is provided across the entire buffer width.
(5) The applicant or mitigation provider shall provide a site specific credit/debit ledger to the Authority
at regular intervals as specified in the mitigation plan approval or mitigation banking instrument
once credits are established and until they are exhausted.
(6) Buffer mitigation credit, nutrient offset credit, wetland mitigation credit, and stream mitigation
credit shall be accounted for in accordance with the following:
(A) Buffer mitigation used for buffer mitigation credit shall not be used for nutrient offset
credits;
(B) Buffer mitigation credit shall not be generated within wetlands that provide wetland
mitigation credit required by 15A NCAC 02H .0506; and
(C) Buffer mitigation credit may be generated on stream mitigation sites as long as the width
of the restored or enhanced riparian buffer meets the requirements of Subparagraph (n)(1)
of this Rule.
(m) RIPARIAN BUFFER MITIGATION UNITS. Mitigation activities shall generate riparian buffer mitigation units
as follows:
Mitigation Activity Square Feet of Riparian Buffer
Miti_ation Buffer Mitigation Units Generated
Restoration Site 1 1
Enhancement Site 2 1
Preservation Site on Non -Subject Urban Streams 3
Preservation Site on Subject Urban Streams 3
Preservation Site on Non -Subject Rural Streams 5
Preservation Site on Subiect Rural Streams 10
(n) RIPARIAN BUFFER RESTORATION SITE OR ENHANCEMENT SITE. Authority staff shall make an on -
site determination as to whether a potential mitigation site qualifies as a restoration site or enhancement site as defined
in Paragraph (b) of this Rule. Riparian buffer restoration sites or enhancement sites shall meet the following
requirements:
(1) Buffer restoration sites or enhancement sites may be proposed as follows:
Buffer width (ft)
Proposed
Percentage
of Full Credit
Less than 20
0 %
75 %
20-29
30-100
100 %
101-200
33%

(2) The applicant or mitigation provider shall submit a restoration or enhancement mitigation plan to
the Authority for written approval. The plan shall demonstrate compliance with the requirements of
this Paragraph and Paragraphs (1) and (m) of this Rule and shall also contain the following:
(A) A map of the proposed restoration or enhancement site;
(B) A vegetation plan that shall detail. the activities proposed to ensure a final performance
standard of 260 stems per acre at the completion of monitoring. The final performance
standard shall include a minimum of four native hardwood tree species or four native
hardwood tree and native shrub species, where no one species is greater than 50 percent of
stems. Native hardwood and native shrub volunteer species may be included to meet the
final performance standard of 260 stems per acre. The Authority may approve alternative
vegetation plans upon consideration of factors, including site wetness and plant
availability, to meet the requirements of this Part;
(C) A grading plan (if applicable). The site shall be graded in a manner to ensure diffuse flow
through the entire riparian buffer;
(D) A schedule for implementation, including a fertilization and herbicide plan if applicable;
and
(E) A monitoring plan to document whether the site is expected to meet the final performance
standards as defined in Part (n)(2)(B) of this Rule and other anticipated benefits to the
adjacent water. The plan shall include a proposed schedule and method for monitoring the
vegetative status of the restoration or enhancement site for five years, including the health
and average stem densities of native hardwood tree or tree and shrub species that are to be
counted toward the final performance standard.
(3) Within one year after Authority approval of the mitigation plan, the applicant or mitigation provider
shall present documentation to the Authority that the riparian buffer has been restored or enhanced
unless the applicant or mitigation provider requests, and the Authority agrees in writing prior to that
date, to a longer time period.
(4) The applicant or mitigation provider shall submit written annual reports, unless an alternative
schedule has been approved by the Authority during the mitigation plan approval, for a period of
five years after completion of the activities identified in Part (n)(2)(B) of this Rule at the restoration
site or enhancement site showing:
(A) compliance with the monitoring plan approved pursuant to Part (n)(2)(E) of this Rule; and
(B) that diffuse flow through the riparian buffer has been maintained.
If the Authority determines that the native hardwood tree or tree and shrub species at the site are not expected
to meet the final performance standards listed in Part (n)(2)(B) of this Rule, then the Authority may require
that the applicant or mitigation provider replace trees or trees and shrubs as needed during that five-year
period. If the Authority determines that diffuse flow through the buffer is not being maintained, then the
Authority may require that the applicant or mitigation provider restore diffuse flow. If the Authority
determines that the final performance standards listed in Part (n)(2)(B) of this Rule have not been achieved
at the end of the five-year monitoring period, the Authority may require additional years of monitoring. The
Authority shall make determinations referenced in this Subparagraph on a site specific basis based on the
annual reports, any supplemental information submitted by the applicant or mitigation provider, or a site
evaluation by the Authority. _
(o) ALTERNATIVE BUFFER MITIGATION OPTIONS. Alternative buffer mitigation options are detailed in this
Paragraph. Any proposal for alternative buffer mitigation shall be provided in writing to the Division, shall meet the
content and procedural requirements for approval by the Division, shall meet the requirements set out in Paragraphs
(1) and (m) of this Rule and the requirements set out in the named Subparagraph of this Paragraph addressing that
applicable alternative buffer mitigation option:
(1) Retroactive Credit. Alternative buffer mitigation sites constructed and within the required
monitoring period on the effective date of this Rule shall be eligible for use as alternative buffer
mitigation sites. Alternative buffer mitigation sites that have completed monitoring and were
released by the Division on or within the past 10 years of the effective date of this Rule shall be
eligible for use as alternative buffer mitigation sites. All alternative buffer mitigation site proposals
submitted under this Subparagraph shall meet the following:
(A) A map or maps of the proposed alternative buffer mitigation site;

(B) Documentation of pre-existing conditions showing that the proposed alternative buffer
mitigation site met the criteria to qualify for the applicable alternative buffer mitigation
type identified in the applicable Subparagraph of this Paragraph;
(C) Documentation of the activities that were conducted at the proposed alternative buffer
mitigation site to meet success criteria identified in the applicable Subparagraph of this
Paragraph; and
(D) Documentation that the proposed alternative buffer mitigation site met the success criteria
identified in the applicable Subparagraph of this Paragraph.
These alternative buffer mitigation sites shall receive credit in accordance with the criteria set forth
in Paragraph (m) and Subparagraph (n)(1) of this Rule.
(2) Coastal Headwater Stream Mitigation. Wooded buffers planted along Outer Coastal Plain headwater
stream mitigation sites may also be approved as riparian buffer mitigation credit if the site meets all
applicable requirements of Paragraph (n) of this Rule. In addition, all success criteria specified in
the approval of the stream mitigation site by the Division shall be met. The area of the buffer shall
be measured perpendicular to the length of the valley being restored. The area within the proposed
buffer mitigation site shall not also be used as wetland mitigation.
(3) Buffer Restoration and Enhancement on Non -Subject Streams. Restoration or enhancement of
buffers may be conducted on intermittent or perennial streams that are not subject to the applicable
Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter. These streams shall be
confirmed as intermittent or perennial streams by Division staff certified per G.S. 143-214.25A
using the Division publication, "Methodology for Identification of Intermittent and Perennial
Streams and Their Origins (v.4.11, 2010)" available at no cost at
http://portal.ncdenr.org/web/wq/swp/ws/401/waterresources/streamdeterminations. The proposal
shall meet all applicable requirements of Paragraph (n) of this Rule.
(4) Preservation of Buffer on Non -Subject Streams. Preservation of buffers on intermittent or perennial
streams that are not subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or
.0607 of this Subchapter may be proposed in order to permanently protect the buffer from cutting,
clearing, filling, grading, and similar activities that would affect the functioning of the buffer. These
streams shall be confirmed as intermittent or perennial streams by Division staff certified per G.S.
143-214.25A using the Division publication, "Methodology for Identification of Intermittent and
Perennial Streams and Their Origins (v4.11, 2010)." The preservation site shall meet the
requirements of Subparagraph (n)(1) of this Rule and the requirements set forth in 15A NCAC 02R
.0403(c)(7), (8), and (11). The area of preservation credit within a buffer mitigation site shall
comprise of no more than 25 percent of the total area of buffer mitigation.
(5) Preservation of Buffers on Subject Streams. Buffer preservation may be proposed on streams that
are subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter in
order to permanently protect the buffer from cutting, clearing, filling, grading, and similar activities
that would affect the functioning of the buffer beyond the protection afforded by the existing buffer
rules on sites that meet the definition of a preservation site. The preservation site shall meet the
requirements of Subparagraph (n)(1) and the requirements set forth in 15A NCAC 02R .0403(c)(7),
(8), and (11). The area of preservation credit within a buffer mitigation site shall comprise of no
more than 25 percent of the total area of buffer mitigation.
(6) Enhancement of grazing areas adjacent to streams. Buffer credit at a 2:1 ratio shall be available for
an applicant or mitigation provider who proposes permanent exclusion of grazing livestock that
otherwise degrade the stream and riparian zone through trampling, grazing, or waste deposition by
fencing the livestock out of the stream and its adjacent buffer. The applicant or mitigation provider
shall provide an enhancement plan as set forth in Paragraph (n) of this Rule. The applicant or
mitigation provider shall demonstrate that grazing was the predominant land use since the effective
date of the applicable buffer rule.
(7) Mitigation on ephemeral channels. For purposes of riparian buffer mitigation as described in this
Part, an "ephemeral channel' is defined as a natural channel exhibiting discernible banks within a
topographic crenulation (V-shaped contour lines) indicative of natural drainage on the 1:24,000
scale (7.5 minute) quadrangle topographic map prepared by the U.S. Geologic Survey, or as seen
on digital elevation models with contours developed from the most recent available LiDAR data,
available at no cost at http://www.ncfloodmaps.com/lidar.com. Ephemeral channels only flow for a
short period of time after precipitation in the drainage area and do not have periods of base flow

sustained by groundwater discharge. The applicant or mitigation provider shall provide a delineation
of the watershed draining to the ephemeral channel. The entire area proposed for mitigation shall be
within the contributing drainage area to the ephemeral channel. The ephemeral channel shall be
directly connected to an intermittent or perennial stream and contiguous with the rest of the
mitigation site protected under a perpetual conservation easement. The area of the mitigation site on
ephemeral channels shall comprise no more than 25 percent of the total area of buffer mitigation.
The proposal shall meet all applicable requirements of Paragraph (n) of this Rule for restoration or
enhancement. The proposal shall meet all applicable requirements of Subparagraph (o)(4) or (o)(5)
of this Rule for preservation.
(8) Restoration and Enhancement on Ditches. For purposes of riparian buffer mitigation as described in
this Part, a "ditch" is defined as a man-made channel other than a modified natural stream that was
constructed for drainage purposes. To be used for mitigation, a ditch shall meet all of the following
criteria:
(A) be directly connected with and draining towards an intermittent or perennial stream;
(B) be contiguous with the rest of the mitigation site protected under a perpetual conservation
easement;
(C) stormwater runoff from overland flow shall drain towards the ditch;
(D) be between one and three feet in depth; and
(E) the entire length of the ditch shall have been in place prior to the effective date ofthe
applicable buffer rule.
The width of the restored or enhanced area shall not be less than 30 feet and shall not exceed 50 feet
for crediting purposes. The applicant or mitigation provider shall provide a delineation of the
watershed draining to the ditch. The watershed draining to the ditch shall be at least four times larger
than the restored or enhanced area along the ditch. The perpetual conservation easement shall
include the ditch and the confluence of the ditch with the intermittent or perennial stream, and
provide language that prohibits future maintenance of the ditch. The proposal shall meet all
applicable requirements of Paragraph (n) of this Rule for restoration or enhancement.
(9) Stormwater Treatment Options. All stormwater treatment options shall meet the following
requirements:
(A) Structural options already required by other local, state, or federal rule or permit cannot be
used as alternative buffer mitigation credit, except to the extent such measure(s) exceed the
requirements of such rule or permit. Stormwater Best Management Practices (BMPs),
including bioretention facilities, constructed wetlands, infiltration devices and sand filters
are all potentially approvable BMPs by the Division for alternative buffer mitigation credit.
Other BMPs may be approved only if they meet the nutrient removal levels outlined in Part
(o)(9)(B) of this Rule. Existing or planned BMPs for a local, state, or federal rule or permit
may be retrofitted or expanded to improve their nutrient removal if this level of treatment
is not required by other local, state, or federal rules. In this case, the predicted increase in
nutrient removal may be counted toward alternative buffer mitigation credit;
(B) Minimum treatment levels: Any structural BMP shall provide at least 30 percent total
nitrogen and 35 percent total phosphorus removal as demonstrated by a scientific and
engineering literature review as approved by the Division. The mitigation proposal shall
demonstrate that the proposed alternative removes an equal or greater annual mass load of
nutrients to surface waters as the buffer impact authorized in the authorization certificate
or variance, following the calculation of impact and mitigation areas pursuant to
Paragraphs (d), (e), and (f) of this Rule. To estimate the rate of nutrient removal of the
impacted buffer, the applicant or mitigation provider may use the "NC Division of Water
Quality — Methodology and Calculation for determining nutrient reductions associated
with Riparian Buffer Establishment" available at no cost at
http://portal.ncdenr.org/c/document_library/get file?uuid=55 c3 758 f-5e27-46cf-8237-
47t890d9329a&groupId=38364. The applicant or mitigation provider may propose an
alternative method of estimating the rate of nutrient removal for consideration and review
by the Division;
(C) All proposed structural BMPs shall follow the Division's "2009 Stormwater Best
Management Practice Design Manual' available at no cost at

http://portal.ncdenr.org/web/ir/bmp-manual. If a specific proposed structural BMP is not
addressed in this Manual, the applicant or mitigation provider shall follow Chapter 20 in
this Manual for approval;
(D) All structural options are required to have Division approved operation and maintenance
plans;
(E) All structural options are required to have continuous and perpetual maintenance and shall
follow the Division's "2009 Stormwater Best Management Practice Design Manual";
(F) Upon completion of construction, the designer for the type of BMP installed shall certify
that the system was inspected during construction and that the BMP was constructed in
conformity with plans and specifications approved by the Division;
(G) Removal and replacement of structural options: If a structural option is proposed to be
removed and cannot be replaced on -site, then a structural or non-structural measure of
equal or better nutrient removal capacity, as determined by calculations submitted to and
approved by the Division, in a location as specified by Paragraphs (f) and (g) of this Rule
shall be constructed as a replacement;
(I) Renovation or repair of structural options: If the applicant, mitigation provider, or the
Division determines that a structural option must be renovated or repaired, it shall be
renovated to provide equal or better nutrient removal capacity than as originally designed;
and
(I) Structural options, as well as their operation and maintenance, are the responsibility of the
landowner or easement holder unless the Division gives written approval for another
responsible party to operate and maintain them. Structural options shall be located in
recorded drainage easements for the purposes of operation and maintenance and shall have
recorded access easements to the nearest public right-of-way. These easements shall be
granted in favor of the party responsible for operating and maintaining the structure, with
a note that operation and maintenance is the responsibility of the landowner, easement
holder, or other responsible party.
(10) Approval for other alternative buffer mitigation options. Other alternative riparian buffer mitigation
options not specified within this Rule may be submitted to the Division for review and
recommendation to the Environmental Management Commission on a case -by -case basis. Any
proposal submitted under this Paragraph shall provide documentation or calculations to demonstrate
that the proposed alternative mitigation option removes an equal or greater annual mass load of
nutrients to surface waters as a riparian buffer. Upon completion of the Division's review, and prior
to recommendation to the Environmental Management Commission, the Division shall issue a 30-
calendar day public notice through the Division's website and the DWRwetlands Listserve. Division
staff shall present their recommendations, including comments received during the public notice
period, to the Environmental Management Commission for a final decision. If approved by the
Environmental Management Commission, the alternative buffer mitigation option may be proposed
by other applicants and mitigation providers.
History Note: Authority G.S. 143-214.1; 143-214.5; 143-214.7; 143-214.20; 143-215.3(a)(1); 143-215.6A; 143-
215.0; 143-215.6C, 143-215.8A; 143-215.8B; 143-282(c); 143B-282(d); S.L. 1998-221; S.L.
1999-329, s. 7.1; S.L. 2001-418, s. 4.(a); S.L. 2003-340, s. 5; S.L. 2005-190; S.L. 2006-259; S.L.
2009-337; S.L. 2009-486; S.L. 2014-95;
Temporary Adoption E, jf.' October 24, 2014;
Eff.' November 1, 2015.

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