20090425 Ver 1_Mitigation Information_20110202

Earth Mark
MITIGATION SERVICES
Florida. • North Carolina • West Virginia
January, 27th, 2011
To: Lia Myott Gilleski
Environmental Senior Specialist
401 Express Review Coordinator
401 Oversight/Express Permitting Unit
Division of Water Quality
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
From: Matt Fisher
Regional Vice President
EarthMark Mitigation, LLC
1960 Derita Road
Concord, NC 28027
29@20MR,
FEB 0 2 2011
DENR• WATER cwum
WETLAN"A" ST0RMWA*R BRANCH
Lia:
Please see the attached signed UMBI for the revised Cape Fear Riparian Buffer and Nutrient Mitigation
Umbrella Banking Instrument.
Thank you for your assistance.
Matt Fisher
12800 University Dr. Suite 400 Ft. Myers Florida, 33907 ph 239.415.6200 fx 239.415.6298
1960 Derita Road, Concord, NC 28027 ph 704.782.4133 fx 704.782.4148
AGREEMENT TO ESTABLISH THE CAPE FEAR RIPARIAN BUFFER AND
NUTRIENT MITIGATION
UMBRELLA BANKING INSTRUMENT
HUC 030300
1. PREAMBLE
This Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument,
regarding the establishment, use, operation, and maintenance of the Cape Fear River
Basin Riparian Buffer and Nutrient Mitigation Umbrella Bank (Bank) is made and
entered into by and among EarthMark North Carolina, LLC, (EarthMark), 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 Cape Fear River Basin in
the State of North Carolina, United States Geological Survey (USGS)
Hydrologic Unit Code (HUC) 030300.
2. To provide mitigation for buffer impacts and development (both existing and
proposed) requiring nutrient offset payments within the Cape Fear River
Basin, and to sell any resulting credits to third parties.
II. AUTHORITIES
The Bank will be used to provide nutrient offset and riparian buffer mitigation in
accordance with the requirements of the following proposed administrative code
sections:
1. 15A NCAC 213.0264 Agriculture,
2. 15A NCAC 2B .0265 Stormwater Management for New Development,
3. 15A NCAC 2B.0266 Stormwater Management for Existing Development,
4. 15A NCAC 2B .0268 Mitigation for Riparian Buffers
5. 15A NCAC 02.0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement Program
6. 15A NCAC 2B .0270 Wastewater Discharge Requirements, and
7. 15A NCAC 2B .0271 Stormwater Requirements for State and Federal
Entities.
8. 15A NCAC 213 .0273 Options for Offsetting Nutrient Loads
All activities will be consistent with permanent rules for the Jordan Water Supply
Nutrient Strategy approved by the Environmental Management Commission and
approved by the North Carolina Office of Administrative Hearings - Rules Review
Commission (RRC) on October 16, 2008 and November 20, 2008.
Any changes to the proposed Jordan Water Supply Nutrient Strategy legislation that
occur during review by the General Assembly will also be adhered to as part of this
banking instrument.
111. 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 and the affected arm of B.
Everett Jordan Lake (i.e. Upper New Hope, Lower New Hope, or Haw River) in
which the Bank Parcel is located.
B. For each BPDP, EarthMark 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. EarthMark 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, EarthMark
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. Alternatively, in lieu of posting the Performance Bond, EarthMark
may elect to construct the project prior to the first credits release. 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, EarthMark shall acquire a
permanent conservation easement(s) or record restrictive covenants at the
Register of Deed'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 their ability to provide nutrient abatement to waters of
the Cape Fear River Basin, including B. Everett Jordan Lake. 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. EarthMark 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, EarthMark will hold the easement until an approved third-
party land steward is identified at a time prior to bank parcel closure. Prior to
bank parcel 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,
EarthMark will provide DWQ with the necessary operation and maintenance
agreements for the newly constructed or renovated stonnwater 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: EarthMark 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: planting details, invasive species control, 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: EarthMark 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.
EarthMark 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: EarthMark 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 average density of 320 desirable trees per acre
after five (5) 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 (5) 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: EarthMark 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 shall 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, EarthMark 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., EarthMark is
closing on sales and/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
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: EarthMark 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 location 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, EarthMark 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., EarthMark 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. Nutrient Abatement of Restored Riparian Buffer: EarthMark 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) and the
pounds of phosphorus offset per acre of restored riparian buffer shall be one
hundred forty six and four-tenths pounds per acre (146.41bs/acre), or the amount
of nitrogen and phosphorus offset per acre per DWQ policy at the time the BPDP
is approved, and shall be applied to riparian buffer-based nutrient abatement sites
across the State of North Carolina.
EarthMark and DWQ further agree that the amount of nutrient 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).
Please note nutrient credits sold or transferred from approved Bank Parcels to
prospective purchasers shall account for DWQ-approved transport factors
between the Bank Parcel site and the location of the site or development wishing
to utilize credits.
B. Nutrient Abatement of Installed / Renovated Stormwater Best Management
Practices: EarthMark and DWQ agree that the pounds of nitrogen and phosphorus
available for credit release from newly renovated or constructed stormwater
BMPs shall be based upon the design calculations / nutrient 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 EarthMark, 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
% Credit
Available
Task Project Milestone for Sale
Bank Parcel Development Package Approved by DWQ, Conservation
Easement or Restrictive Covenants Recorded and Financial Assurance
I Posted 20
Mitigation Site Earthwork, Planting and Installation of Monitoring
2 Devices Completed 20
Approval of As-Built Report and Monitoring Financial Assurance
3 Posted 10
4 Monitoring Report #I to DW Approval meets success criteria 10
5 Monitoring Report #2 to DWQ Approval (meets success criteria 10
6 Monitoring Report #3 to DW Approval meets success criteria 10
7 Monitoring Report #4 to DW Approval meets success criteria 10
8 Monitoring Report #5 to DW 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, and Operation and Maintenance Agreement Approved by
1 DW 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 2B .0264 Agriculture,
2. 15A NCAC 2B .0265 Stormwater Management for New Development,
3. 15A NCAC 2B .0266 Stormwater Management for Existing Development,
4. 15A NCAC 2B .0268 Mitigation for Riparian Buffers
5. 15A NCAC 02.0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement Program
6. 15A NCAC 2B .0270 Wastewater Discharge Requirements, and
7. 15A NCAC 2B .0271 Stormwater Requirements for State and Federal
Entities.
8. 15A NCAC 2B..0273 Options for Offsetting Nutrient Loads
E. Procedure for Debiting or Crediting the Bank: EarthMark shall maintain three (3)
credit ledgers: one accounting for buffer mitigation credits (in square feet), which
are generated by buffer areas of < 50 feet in width; one accounting for nitrogen
offset credits, which are generated from buffer areas gp to 200 feet in width and
from the installation / renovation of stormwater BMPs, and the third accounting
for Phosphorus release and debits.. The ledgers shall record the area of available
buffer credits and pounds of available nutrient 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 petmittee 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 activities. The GSA for this Bank
shall include the Cape Fear River Basin Hydrologic Unit 030300 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. EarthMark and the landowner will allow, 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
EarthMark, prior to inspection of Bank.
B. Force Majeure: After the sale of all available credits, EarthMark 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 EarthMark.
However, while EarthMark may not have control of such events, if an event
occurs before the final sale of all credits, EarthMark 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 EarthMark only to the extent
necessary and appropriate, as determined by DWQ and EarthMark, in order to
offset authorized impacts to buffers or to satisfy nutrient offset buy down
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 resolved, raised to the level of the individual signatories to the
Banking Instrument or their designees.
G. 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 EarthMark: EarthMark North Carolina, LLC
12800 University Dr, Suite 400
Fort Myers, FL 33907
Attn: Mr. Don Cordello
Copy to: EarthMark North Carolina, LLC
1960 Derita Road
Concord, North Carolina 28027
Attn: Mr. Richard Mogensen
If to DWQ: DWQ - 401 Oversight and Express Permitting Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Attn: Ms. Lia Myott Gilleski
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.
EARTHMARK NORTH C OLINA, LLC
By: z,
4? ? /?'r2
Name: 1,-'1,a IA* G,)
Title:
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Date: - ?- /?
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES DIVISION OF WATER
QUALITY
By:_
Name:
Title:
Date: