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HomeMy WebLinkAbout20090425 Ver 1_Mitigation Information_20110202Earth 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: ?c?o?'d Date: - ?- /? NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WATER QUALITY By:_ Name: Title: Date: