20091283 Ver 1_MaM Neuse Riparian Buffer Bank_20091202

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AGREEMENT TO ESTABLISH THE NEUSE RIPARIAN BUFFER AND
NUTRIENT MITIGATION
UMBRELLA BANKING INSTRUMENT p G (,
HL-q
UC 030202
1. PREAMBLE
0 DF C 2 2009
This Riparian Buffer and Nutrient Mitigation Umbrella Banking In*IR=?si0RMw QUALITY
regarding the establishment, use, operation, and maintenance of the Neuse River
Basin Riparian Buffer and Nutrient Mitigation Umbrella Bank (Bank), is made and
entered into by and among Mid-Atlantic Mitigation, LLC (MAM), acting as the Bank
Sponsor, and the North Carolina Department of Environment and Natural Resources
- Division of Water Quality (DWQ).
The purpose of the Bank is to:
1. Improve water quality through the restoration of riparian buffer habitat, the
installation of new stormwater best management practices (BMPs), and the
renovation of existing stormwater BMPs within the Neuse River Basin in the
State of North Carolina, United States Geological Survey (USGS) Hydrologic
Unit Code (HUC) 030202.
2. To provide mitigation for buffer impacts and development (both existing and
proposed) requiring nutrient offset payments within the Neuse River Basin,
and to sell any resulting credits to third parties.
II. AUTHORITIES
The Bank will be used to provide nitrogen offset and riparian buffer mitigation in
accordance with the requirements of the following proposed administrative code
sections:
1. 15A NCAC 2B .0234 Wastewater Discharge Requirements,
2. 15A NCAC 213 .0235 Basinwide Stormwater Requirements,
3. 15A NCAC 2B .0240 Nutrient Offset Payments,
4. 15A NCAC 2B .0242 Mitigation program for protection and maintenance of
existing riparian buffers
All activities will be consistent with permanent rules for the Neuse River Basin
Nutrient Sensitive Waters Management Strategy by the Environmental Management
Commission and all other applicable authorities.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Each tract of land subject to a conservation easement or restrictive covenants
described in Section III-E ("Bank Parcel") to be included in the Bank shall require
a Bank Parcel Development Package (BPDP), including detailed information
concerning site location, existing conditions, proposed buffer restoration activities
or stormwater best management practice (BMP's) activities, monitoring and
maintenance plans, financial assurances, and associated buffer mitigation/nutrient
credit calculations (to include credit generation, service area, and accounting as
appropriate for each regulatory authority cited above). Additional Parcels may be
added to the Bank at any time upon approval of the associated BPDP by the DWQ
and prior to use of the parcel for mitigation purposes. Please note the service area
for each Bank Parcel will be limited to the 8-digit HUC in which the Bank Parcel
is located.
B. For each BPDP, MAM agrees to perform all necessary work, in accordance with
the provision of this Banking Instrument, to establish and / or maintain and
monitor riparian buffers or to install and / or renovate stormwater BMPs until it is
demonstrated to the satisfaction of the DWQ that the restored property (buffers)
or installed / renovated BMPs comply with all conditions contained herein, or
until all credits from that Bank Parcel are sold, whichever is later but at a
minimum of (5) years.
C. MAM will obtain all appropriate environmental documentation, permits, or other
authorizations needed to construct and maintain the Bank Parcel. This Banking
Instrument does not qualify or substitute for such authorization.
D. Financial Assurance Requirements: Following approval of the BPDP, MAM shall
provide a Performance Bond from a surety company that is rated no less than an
"A-" as rated by A.M. Best. The Performance Bond amount shall be 100% of the
estimated cost for implementation of the buffer restoration / stormwater
management plan included in the BPDP, but no less than $150,000.00 in amount.
After completion of the restoration / construction, a Monitoring Bond will be
substituted for the Performance Bond. The sum of said Monitoring Bond shall be
for 100% of the estimated cost to implement the monitoring and maintenance plan
but no less than $100,000.00 in amount. The Monitoring Bond shall be in effect
for a period of five years but may be lowered each year based on the adjusted cost
to finish the monitoring
E. Property Disposition: Prior to the release of any credits, MAM shall acquire a
permanent conservation easement(s) or record restrictive covenants at the county
clerk's office to the deed(s) on all Bank Parcels to provide protection to the
restored riparian buffer and / or stormwater BMPs in perpetuity from activities
that would impair its ability to provide nutrient abatement to waters of the Neuse
River Basin. The form of the conservation easement or restrictive covenants shall
be consistent with the standards employed by the State of North Carolina in the
protection of restored riparian buffers and / or stormwater BMPs and shall be
approved by the DWQ prior to the certification of any credits. MAM shall not
grant additional easements, rights of way, or any other property interest in or to
the project areas without the written consent of the DWQ or its designee. In the
case of a conservation easement, MAM will hold, the easement until an approved
third-party land steward is identified but before bank site closure. Prior to bank
closure, the conservation easement(s) may be permanently transferred to a DWQ
approved land trust, non-profit group, or governmental entity to be held in
perpetuity.
F. Operation and Maintenance Agreements: Prior to the release of any credits, MAM
will provide DWQ with the necessary operation and maintenance agreements for
the newly constructed or renovated stormwater BMPs (if applicable). These
agreements shall be consistent with the standards adopted by DWQ and shall be
approved by the DWQ prior to the certification of any credits.
G. As-Built Reports: MAM will submit an as-built plan and report for each Bank
Parcel within 30 days after completing the establishment of the buffer and / or
construction or renovation of stormwater BMPs (if applicable). The as-built report
will describe in detail any deviation from the BPDP. In addition, the as-built
report will document the appropriate aspects of the Bank depending upon the type
as follows:
a. Buffer restoration: finished topography, planting details, monitoring
device locations, vegetation plot locations, photo point locations, surface
and groundwater elevations, as appropriate.
b. Stormwater BMPs: outlet structure information, surface area / volume
computations, hydrograph routing information, planting details,
monitoring device locations, photo point locations as appropriate,
c. Boundary Survey of easement area
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Operation and Maintenance Provisions: MAM agrees to perform all necessary
work to operate and maintain the Bank Parcel(s) consistent with the operation and
maintenance criteria established in Section III-F of this instrument. MAM shall
continue with such activities until all credits are sold and all success criteria have
been met. Deviation from the approved BPDP is subject to review and written
approval by DWQ or its designee.
B. Monitoring Provisions: MAM shall monitor the Bank Parcel as described in the
BPDP for each Bank Parcel until such time as DWQ determines that the success
criteria described below have been met. The monitoring period shall be a
minimum of five (5) years.
Riparian Buffer Restoration
C. Vegetative Success Criteria, Vegetative Success Criteria will be based upon the
density and growth of character tree species. "Character Trees" are defined as
planted or volunteer species identified from a survey of local vegetation on less
degraded sections of the specified stream and from reference literature that details
native species. A list of Character Tree species for each Bank Parcel will be
detailed in that Parcel's BPDP. Vegetative Success Criteria will be based upon
guidelines set forth in the Guidelines for Riparian Buffer Restoration prepared by
the North Carolina Ecosystem Enhancement Program (or subsequent updated
versions of this Guidance in place at the date of acceptance of a BPDP). Success
is defined as the survival of an Overage density of 320 desirable trees per acre
after five years. If vegetative success criteria are not met supplemental plantings
may be required. Supplemental plantings will be utilized until the required
densities have been achieved after five years. Success criteria of the riparian
buffer restoration and enhancement shall be based on the CVS-EEP Protocol for
Recording Vegetation Level 1-2 Plot Sampling Only Version 4.0.
D. Monitoring Reports: MAM. shall submit to the DWQ an annual monitoring report,
no later than December 31 each year for five years after the first full growing
season, describing the conditions of each Bank Parcel and relating those
conditions to the success criteria. Reports will be submitted annually and shall
contain the following:
1. A U.S. Geological Survey map showing location of the Bank Parcel(s);
2. A detailed narrative summarizing the condition of the Bank Parcel(s) and all
regular maintenance activities;
3. Appropriate topographic survey showing location of sampling plots,
permanent photo points, location of transects, etc.;
4. Monitoring data, including specific vegetative counts and photographs; and

5. A copy of the Bank credit/debit ledger.
E. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
success criteria described in this instrument, MAM shall develop necessary
contingency plans in coordination with the DWQ or designee and implement
appropriate remedial actions for the Bank.
If the DWQ determines that the Bank is operating at a deficit (i.e., MAM is
selling or transferring credit not yet available), the sale/transfer of credits will
immediately cease, and the DWQ, in consultation with MAM, will determine
what remedial actions are necessary to correct the situation.
Construction / Renovation of Stormwater BMPs
,r
F. Stormwater BMP Success Criteria: The success of a stormwater BMP will be
based upon the type and its associated design criteria, as approved by DWQ at
time of submission of the BPDP. For purposes of this agreement, the design
criteria shown in the North Carolina Division of Water Quality Stormwater Best
Management Practices Manual (October 2007), or as amended / updated, and the
approved operation and maintenance agreement from Section III-F of this
agreement shall be the basis for judging the success of a specific device.
G. Monitoring Reports: MAM shall submit to the DWQ an annual monitoring report,
no later than December 31 each year for five years after the initial installation /
renovation of the stormwater BMP, describing the conditions of each Bank Parcel
and relating those conditions to the success / approved design criteria. Reports
will be submitted annually and shall contain the following:
1. A U.S. Geological Survey map showing locatzon of the Bank Parcel(s);
2. A detailed narrative summarizing the condition of the Bank Parcel(s) and all
regular maintenance activities;
3. A copy of the Bank credit/debit ledger.
H. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
success criteria described in this instrument, MAM shall develop necessary
contingency plans in coordination with the DWQ or designee and implement
appropriate remedial actions for the Bank. Depending on the degree of remedial
actions required, DWQ reserves the authority to extend or re-start the monitoring
period as necessary to demonstrate site success.
If the DWQ determines that the Bank is operating at a deficit (i.e., MAM is
selling or transferring credit not yet available), `the sale/transfer of credits will
immediately cease, and the DWQ, in consultation with MAM, will determine
what remedial actions are necessary to correct the situation.
V. OPERATION OF BANK
A. Nitrogen Abatement of Restored Riparian Buffer: MAM and DWQ agree the
pounds of nitrogen offset per acre of restored riparian buffer shall be two
thousand two hundred and seventy three pounds per acre (2,273 lbs/acre), or the
amount of nitrogen offset per acre per current DWQ policy, and shall be applied
to riparian buffer-based nitrogen abatement sites across the State of North
Carolina.
MAM and DWQ further agree that the amount of nitrogen offset per acre shall be
fixed as part of the approval of each individual Bank Parcel, with the fixed
amount not changing during the development and credit release schedule of each
Bank Parcel(s).
B. Nitrogen Abatement of Installed / Renovated Stormwater Best Management
Practices: MAM and DWQ agree that the pounds of nitrogen available for credit
release from newly renovated or constructed stormwater BMPs shall be based
upon the design calculations / nitrogen export calculations submitted to and
approved by DWQ as part of the BPDP.
C. Establishment and Release of Credits: Within thirty (30) days upon submittal of
all appropriate documentation by MAM, and subsequent approval by DWQ or its
designee, it is agreed that the mitigation credits associated with this Bank will
become available for sale to a third party in accordance with the following
schedules:
Table I - Credit Release Schedule for Riparian Buffer Restoration

Task

Project Milestone % Credit
Available
for Sale

1 Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants Recorded and
Financial Assurance Posted

20

2 Mitigation Site Earthwork, Planting and Installation of Monitoring
Devices Completed
20

3 Approval of As-Built Report and Monitoring Financial Assurance
Posted
10
4 Monitoring Report #1 to DWQ Approval meets success criteria 10
5 Monitoring Report #2 to DWQ Approval (meets success criteria) 10
6 Monitoring Report #3 to DWQ Approval meets success criteria 10
7 Monitoring Report #4 to DWQ Approval meets success criteria 10
8 Monitoring Report #5 to DWQ Approval meets success criteria 10
Total 100%
Table 2 - Credit Release Schedule for Stormwater Best Management Practices
% Credit
Available
Task Project Milestone for Sale
Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants Recorded and
Financial Assurance Posted, Operation and Maintenance
1 Agreement Approved b DWQ' 25
Installation / Renovation of Stormwater BMP in accordance with
2 approved design plans completed 25
3 Approval of As-Built Package 50
Total 100%
D. Projects Eligible to Use the Bank: Projects eligible for utilization of the credits are
those requiring authorization under the requirements of the following
administrative code sections:
1. 15A NCAC 213.0234 Wastewater Discharge Requiments,
2. 15A NCAC 2B .0235 Basinwide Stormwater Requirements,
3. 15A NCAC 2B .0240 Nutrient Offset Payments,
4. 15A NCAC 2B .0242 Mitigation program for"protection and maintenance of
existing riparian buffers.
E. Procedure for Debiting or Crediting the Bank: MAM shall maintain two credit
ledgers: one accounting for buffer mitigation credits (in square feet), which are
generated by buffer areas of < 50 feet in width; and one accounting for nitrogen
offset credits, which are generated from buffer areas up to 200 feet in width and
from the installation / renovation of stormwater BMPs. The ledgers shall record
the area of available buffer credits and pounds bf available nitrogen credits for
each Bank Parcel and all associated debits and credits. Credits can be converted
and transferred from buffer mitigation to nitrogen offsets, but the opposite shall
not occur. All debits or credits shall be entered into the ledger and notification
provided to DWQ or its designee within thirty (30) days of each transaction. All
transactions shall be kept in the ledger. Key documents are the Credit Reservation
Letter confirming the credits are available for transfer and debiting and have been
legally contracted and reserved for a specific project. The final document for
verification and transfer is the Transfer Certificate that is issued to DWQ along
with the updated credit ledger after the purchaser's permit application is approved
and permittee fully funds the purchase of credits. This is the final documentation
for DWQ that verifies the permittee has met the mitigation requirement.
F. Geographical Service Area (GSA): The GSA is the designated area wherein a
bank can reasonably be expected to provide appropriate riparian buffer and/or
nutrient offsets for impacts due to development adtivities. The GSA for this Bank
shall include the Neuse River Basin Hydrologic Unit 030202 in North Carolina.
The GSA for each Bank Parcel will be restricted to the 8-digit HUC in which each
Bank Parcel is located.
VI. OTHER PROVISIONS
A. MAM and the landowner will allow,t or, otherwise provide for, access to the
Parcel(s) by the DWQ or other parties authorized by the DWQ, as necessary, for
the purpose of inspection and compliance with the terms and conditions of this
Banking Instrument and the conservation easement or restrictive covenants.
Inspecting parties shall provide reasonable notice, of not less than 24 hours, to
MAM, prior to inspection of Bank.
B. Force Majeure: After the sale of all available credits, MAM will not be
responsible for Bank failure that is attributed to natural catastrophes such as but
not limited to flood, drought, disease, regional pest infestation, etc. that are
beyond the control of MAM.
However, while MAM may not have control of such events, if an event occurs
before the final sale of all credits, MAM shall take remedial action to restore the
property to its condition prior to this 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 MAM only to the extent necessary
and appropriate, as determined by DWQ and MAM, in order to offset authorized
impacts to buffers or to satisfy nutrient offset buydown requirements imposed
during land development activities and satisfied through payment into the affected
Bank Parcel.
DWQ must concur in writing that a force majeure event has occurred.
C. Validity, Modification, and Termination of the Banking Instrument: This Banking
Instrument will become valid on the date of the last party's signature. This
Banking Instrument may be amended or modified only with written approval of
all signatory parties.
D. Specific Language of Banking Instrument Shall Be Controlling: To the extent that
specific language in this document changes, modifies, or deletes terms and
conditions contained in those documents that are incorporated into the Banking
Instrument by reference, and that are not legally binding, the specific language
within the Banking Instrument shall be controlling.
E. Dispute Resolution: Any disputes between the Bank Sponsor and the DWQ
regarding the attainment of success criteria and release of credits from a specific
site and appropriate monitoring, maintenance and/or remedial onsite activities
shall first be addressed among the field staff of DWQ and MAM field personnel
and then, if not settled, raised to the level of the individual signatories to the
Banking Instrument or their designees.
F. Notices: Unless otherwise provided herein, all notices and other communications
which may be or are required to be given or made by any party to the other in
connection herewith shall be in writing and shall be deemed to have been properly
given and received on the date delivered in person or deposited in the United
States mail, registered or certified, return receipt requested, to the addresses set
out below, or at such other addresses as specified by written notice delivered in
accordance herewith.
If to MAM: Mid-Atlantic Mitigation, LLC
12800 University Drive, Suite 400
Fort Myers, FL 33907
Attn: Don Cordello
Mid-Atlantic Mitigation, LLC
1960 Derita Road
Concord, North Carolina 28027
Attn: Mr. Richard Mogensen
If to DWQ: DWQ - 401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Attn: Mr. Eric W. Kulz
G. Entire Agreement: This Agreement constitutes the sole and entire agreement
among the parties hereto and no modification of this Agreement shall be binding
unless in writing and signed by all parties hereto.
H. Applicable Law: This Agreement shall be construed under the laws of the State of
North Carolina.
MID-ATLANTIC MITIGATION, LLC
By:
Name:
Title:
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES DIVISION OF WATER
QUALITY
By:
Name:
Title: