Loading...
HomeMy WebLinkAbout20120144 Ver 1_WEI UMBI_20120615AGREEMENT TO ESTABLISH AN UMBRELLA MITIGATION BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE NEUSE NUTRIENT STRATEGY rllj,61R1 �0�� DO I PREAMBLE 1 5 2012 This Umbrella Mitigation Banking Instrument ( Instrument ) reg upi4v"M use operation and maintenance of mitigation bank parcels (B Umbrella Bank ( Bank ) to provide Neuse Riparian Buffer mitigation credit ( Riparian Buffer Credits ) and Neuse Nutrient Strategy mitigation credit ( Nutrient Offset Credits ) is made and entered into by and among Wildlands Engineering Inc (WEI) acting as the Bank Sponsor ( Sponsor ) and the North Carolina Department of Environment and Natural Resources — Division of Water Quality ( DWQ ) This Instrument is in accordance with 15A NCAC 02B 0242 and 15A NCAC 02B 0240 The purpose of the Bank is A To improve water quality through the restoration of riparian buffer habitat and /or the installation of new stormwater best management practices ( BMP ) and/or the renovation of existing stormwater BMPs B To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits to third parties for development (both existing and proposed) requiring such mitigation II 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 Credits for impacts due to development activities B The GSA for this Instrument is limited to Bank Parcels located within the Neuse River Basin in the State of North Carolina United States Geological Survey ( USGS ) 8 digit Hydrologic Unit Code ( HUC ) 03020201 in the Neuse River Basin with the exception of the Falls Lake drainage area C Sale or transfer of credit shall be limited to the 8 digit HUC in which the Bank Parcel is located III AUTHORITIES A The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in accordance with the requirements in the DWQ 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 C , All activities shall be consistent with approved North Carolina ( State ) statutes and rules for the Neuse River Basin Nutrient Sensitive Waters Management Strategy and for the Neuse Nutrient Strategy IV ESTABLISHMENT OF BANK PARCEL(S) A Each parcel proposed for inclusion within the Bank under this Instrument shall require a Bank Parcel Development Package ( BPDP ) be submitted to and approved by the DWQ prior to use of the parcel for mitigation purposes or sale or transfer of any associated credits B Bank Parcel(s) may be added to the Bank at any time upon approval of a BPDP by the DWQ V BANK PARCEL DEVELOPMENT PACKAGE A Each BPDP shall include detailed information consistent with the sections below concerning 1) site location (8 digit HUC is required) 2) existing conditions 3) proposed buffer restoration nutrient offset and/or stormwater BMP activities 4) monitoring and maintenance plans 5) financial assurances and 6) associated buffer mitigation/nutrient credit calculations which shall include credit generation, service area and accounting as appropriate for each regulatory authority B In addition to items 1 6 listed in A of this section for each Bank Parcel the Sponsor agrees to transfer or assign the conservation easement and its interests in perpetuity to a qualified holder under N C General Statute ( G S ) 121 34 et seq and 170(h) of the Internal Revenue Code The holder shall be a land trust or stewardship program that will hold and enforce the conservation easement and the interests 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 DWQ 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 and must have the qualifications outlined in G S 105 130 24 and G S 105 151 12 Permittm� C 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 4 Construction D The placement of BMPs constructed or renovated to produce Nutrient Offset Credit must be approved by DWQ prior to construction or renovation E The Sponsor agrees to perform all necessary work in accordance with the provisions of this Instrument to establish maintain and monitor Neuse River Riparian Buffers or other riparian areas or to install and /or renovate stormwater BMPs until Item B (1) and (2) of Section IX have been satisfied F As Built Reports The Sponsor will submit an as built plan and report for each Bank Parcel within 30 calendar days after completing the establishment of the buffer area nutrient offset area and/or construction or renovation of the stormwater BMP(s) The as built report will describe any deviation from the approved BPDP and will document the following 1 Buffer restoration planting details invasive species control monitoring device locations vegetation plot locations photo point locations surface and groundwater elevations as appropriate 2 Stormwater BMPs outlet structure information surface area/volume computations hydrograph routing information planting details monitoring device locations photo point locations as appropriate 3 Boundary Survey of the conservation easement area including an enumeration of the final mitigation area for buffer and /or nutrient offset mitigation credits in both square feet and acres Operation and Maintenance G The Sponsor will provide the DWQ with the necessary operation and maintenance agreements for the newly constructed or renovated stormwater BMPs These agreements shall be consistent with the standards adopted by the DWQ and must be approved by the DWQ prior to the release of any credits H The Sponsor agrees to perform all necessary work to operate and maintain the Bank Parcel(s) consistent with the operation and maintenance criteria established in each approved BPDP until Item B (1) and (2) of Section IX have been satisfied I Requests for deviation from the approved BPDP must be submitted to the DWQ in writing Written approval from the DWQ must be received prior to implementing any deviation from the approved BPDP 3 Monitoring J The Sponsor shall monitor each Bank Parcel as described in the BPDP until such time as DWQ determines that the success criteria described below have been met The monitoring period shall be a minimum of five years K 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 the 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 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 and maintained for five years Success criteria of the riparian buffer restoration shall be based on the Carolina Vegetation Survey ( CVS ) EEP Protocol for Recording Vegetation Level 1 2 Plot Sampling Only Version 4 0 or any updated versions of this protocol in place at the date of acceptance of the BPDP L Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit (excluding Stormwater BMPs) The Sponsor shall submit to the DWQ an annual monitoring report no later than December 31 of each year for a minimum of five years after the first full growing season This report will describe the conditions of each Bank Parcel including an evaluation of the success criteria contained within the approved BPDP Reports 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 and 3 Appropriate topographic survey showing location of sampling plots permanent photo points location of transects etc and 4 Monitoring data including specific vegetative counts and photographs and 5 A copy of the most recent Bank credit /debit ledgers M Monitoring Reports for Nutrient Offset Credit — Stormwater BMPs The Sponsor shall submit to the DWQ an annual monitoring report no later than December 31 of each year for a minimum of five years after the initial instal lation/renovation of the stormwater BMP This annual monitoring report shall describe the conditions of each Bank Parcel 4 including an evaluation of the success criteria contained within the approved BPDP Reports shall contain the following 1 A U S Geological Survey map showing location of the Bank Parcel(s) and 2 A detailed narrative summarizing the condition of the Bank Parcel(s) and all regular maintenance activities and 3 A copy of the most recent Bank credit/debit ledgers and 4 Photographs of current conditions of the BMPs as well as photos showing any maintenance that has been performed on the BMPs including the corresponding dates N Stormwater BMP Success Criteria The success of a stormwater BMP will be based upon the type of BMP and its associated design criteria contained within the approved BPDP For purposes of this agreement the design criteria shown in the North Carolina Division of Water Quality Stormwater Best Management Practices Manual dated October 2007 or any updated versions of this manual and compliance with the approved operation and maintenance agreements contained within the approved BPDP shall be the basis for fudging the success of a specific device Contingency Plans/Remedial Actions O In the event the Bank Parcel fails to achieve the success criteria described in this Instrument and the approved BPDP the Bank Sponsor shall develop necessary contingency plans in coordination with the DWQ and implement appropriate remedial actions for the Bank Parcel and the Bank Depending on the degree of remedial actions required the DWQ may modify the monitoring period Financial Assurances P Following approval of the BPDP the Sponsor shall provide a Performance Bond from a surety company that is rated no less than an A as rated by AM Best The Performance Bond amount shall be 100% of the estimated cost for implementation of the buffer restoration and/or stormwater BMP project as described in the approved BPDP but not less than $150 000 00 Q Alternatively in lieu of posting the Performance Bond the Sponsor may elect to construct the project prior to the first credit release R After completion of the restoration/construction a separate Performance /Maintenance Bond will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan but not less than $100 000 00 The Performance /Maintenance Bond shall be in effect for a minimum of five years and until DWQ has released all mitigation 0 credits to the Bank Sponsor Upon DWQ approval this may be lowered each year based on the adjusted cost to complete the monitoring VI CALCULATION OF MITIGATION CREDITS AND CREDIT RELEASE SCHEDULE A Riparian Buffer Credit may be achieved through mitigation of the DWQ riparian buffer as defined in 15A NCAC 02B 0233 and per 15A NCAC 02B 0242 B Nutrient Offset Credit may be achieved through restoration of the riparian area adjacent to surface water features Surface water features do not have to be intermittent or perennial nor do they have to be depicted on a USGS NRCS or EMC approved map The width of the restoration area begins at the most landward limit of the top of bank or the rooted herbaceous vegetation and extends landward a maximum distance of 200 feet on all sides of the surface water C The mitigation accomplished in the DWQ riparian buffer as defined in 15A NCAC 02B 0233 and per 15A NCAC 02B 0242 may be used for either Riparian Buffer Credit or Nutrient Offset Credit but not both D Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43 560 buffer credits per one acre E Nutrient Abatement of Restored Riparian Buffer The Sponsor 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 pursuant to rule or statute at the time the BPDP is approved F The Sponsor and DWQ agree that the amount of Nutrient Offset Credit per acre shall be fixed as part of the approval of each BPDP with the fixed amount not changing during the development or credit release schedule for each Bank Parcel G Nutrient Offset Credit of Installed/Renovated Stormwater Best Management Practices The Sponsor and DWQ agree that the pounds of nitrogen and/or phosphorus available for credit release from newly renovated or constructed stormwater BMPs shall be based upon the design calculations /nutnent export calculations submitted to and approved by the DWQ as part of the BPDP This space left blank intentionally do not add text to this space �'1 H Credit Release Upon submittal of all appropriate documentation by the Sponsor and subsequent approval by DWQ it is agreed that the mitigation credits associated with the Bank Parcel will become available for sale to a third party in accordance with the following schedules Table i Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits (excluding Stormwater BMPs Task Project Milestone / Credit Available for Sale 1 BPDP Approved by DWQ Conservation Easement Recorded* and Financial Assurance Posted 20 2 Mitigation Site Earthwork Planting and Installation of Monitoring Devices Completed 20 3 Monitoring Financial Assurance Posted and Approval of As Built Report 10 4 Monitoring Report #1 Approved by the DWQ ** 10 5 Monitoring Report 42 Approved by the DWQ ** 10 6 Monitoring Report #3 Approved by the DWQ ** 10 7 Item B (1) of Section iX in this Instrument has been completed and approved by DWQ 5 No remaining credits will be released until Task 7 has been satisfied 8 Monitoring Report #4 Approved by the DWQ ** 5 9 Monitoring Report #5 Approved by the DWQ ** and final site visit by DWQ has been conducted 10 Total 100/0 * For specification please see Item E of Section Vlli in this instrument ** DWQ Approval provided upon a determination that the site is meeting success critena contained within the approved BPDP Table 2 Credit Release Schedule for Nutrient Offset Credits — Stormwater BMPs Task Project Milestone / Credit Available for Sale 1 BPDP Approved by DWQ Bank Closure Agreement Conservation Easement Recorded and Financial Assurance Posted and Operation and Maintenance _Agreement Approved by DWQ 20* 2 Installation / Renovation of Stormwater BMP in accordance with approved design plans completed 20 3 Approval of As Built Package 10 4 Monitoring Re ort #1 Approved by the DWQ* 10 5 Monitoring Report #2 Approved by the DWQ* 10 6 Monitoring Report #3 Approved by the DWQ* 10 7 Item B (1) of Section IX in this Instrument has been completed and approved by DWQ 5 No remaining credits will be released until Task 7 has been sags ted 8 Monitoring Report #4 Approved by the DWQ* 5 9 Monitoring Report #5 Approved by the DWQ* and final site visit by DWQ has been conducted 10 Total 100/0 For specification please see Item E of Section VIII in this Instrument ** DWQ Approval provided upon a determination that the site is meeting success criteria contained within the approved BPDP 7 I DWQ may modify the credit release schedule based on the information submitted or the order in which required information is received DWQ will notify the Sponsor of any modification to the credit release schedule VII PROCEDURE FOR DEBITING AND CREDITING A Available mitigation credits (credits that have been released by DWQ but not sold by the Sponsor) that are generated within the DWQ riparian buffer as defined by 15A NCAC 02B 0233 and per 15A NCAC 02B 0242 can be converted and transferred from Riparian Buffer Credits to Nutrient Offset Credits and from Nutrient Offset Credits to Riparian Buffer Credits Available Nutrient Offset Credits that are generated outside of the DWQ riparian buffer cannot be converted or transferred to Riparian Buffer Credits B The Bank Sponsor shall maintain three credit ledgers if applicable, for each Bank Parcel under this Instrument one accounting for buffer mitigation credits in square feet one accounting for nitrogen offset credits in pounds and one accounting for phosphorus offset credits in pounds C Each credit ledger shall be submitted on a separate 8 ''Von X 11 in spreadsheet with legible font style and font size At a minimum and unless otherwise requested by DWQ credit ledgers shall contain the following information 1 Bank Details listed in a header (1) name of the approved banking instrument as it appears on the instrument document (2) sponsor name (3) bank parcel name as it appears on the BPDP (4) DWQ project number for the BPDP (5) date the ledger was last updated 6) total credits released to date 2 Credit Details Table with the following for each credit sale (1) date of credit sale (2) purchaser name (3) project name and corresponding HUC (4) name of local government requiring Nutrient Offset Credits or Riparian Buffer Credits for this project (4) credits released by DWQ to the Bank listed in pounds for Nutrient Offset Credits and in square feet for Riparian Buffer Credits (5) credits debited /sold from bank listed in pounds for Nutrient Offset Credits and in square feet for Riparian Buffer Credits (6) available credits listed in pounds and acres for Nutrient Offset Credits and in square feet and acres for Riparian Buffer Credits D All credit and debit transactions for each Bank Parcel under this Instrument shall be accurately depicted in the credit ledgers DWQ shall be notified of each credit sale or credit transfer within thirty (30) calendar days by electronically submitting an updated credit ledger to DWQ At a minimum DWQ shall receive a hard copy of updated credit ledgers twice a year Notification of all credit sales shall be provided to DWQ until all credits that have been released have been sold E All credit sales will include a Mitigation Credit Receipt ( Receipt ) that will include at a minimum the following information r -A I Bank Details (1) sponsor Name (2) name of the approved banking instrument as it appears on the instrument document (3) bank parcel name as it appears on the BPDP (4) DWQ project number for the BPDP 2 Credit Details (1) date of receipt (2) identify if full or partial payment (3 — when applicable) amount of nitrogen credits purchased in pounds and confirmation from the local government of the amount required (4 — when applicable) amount of phosphorous credits purchased in pounds and confirmation from the local government of the amount required and (5 — when applicable) amount of Riparian Buffer Credits purchased in square feet and the confirmation from DWQ or the local government of the amount required 3 Project Details (1) project name as it appears on DWQ or local government permits and/or certifications (2) 8 digit HUC (or the sub watershed if for the Jordan Lake Nutrient Strategy) (3) river basin (4) nutrient strategy applicable to the project (5 — when applicable) local government requiring Nutrient Offset Credits or Riparian Buffer Credits for this project F If the DWQ determines that the Bank is operating at a deficit (e g the Sponsor is closing on sales and/or transferring credit that is not available) the sale /transfer of credits will immediately cease and the DWQ in consultation with the Sponsor will determine what remedial actions are necessary VIII PROPERTY DISPOSITION AND LONG TERM MANAGEMENT A Prior to the release of any credits the Sponsor shall acquire a permanent conservation easement(s) for the Bank Parcel(s) at the County Register of Deed s office that is sufficient to ensure protection operation and maintenance of restored riparian buffers other riparian areas and/or stormwater BMPs for the duration specified in the approved BPDP B 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 as well as any stormwater BMPs and shall be approved by the DWQ prior to the release of any credits C 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 DWQ D The Sponsor shall transfer or assign the Bank Parcel s conservation easement and all of its interests to a land trust or stewardship fund as described in Item B of Section V in this Instrument The land trust or stewardship will hold and enforce the conservation easement in perpetuity E E In the event that the Sponsor is also the owner of the underlying fee interest in the property the conveyance of the conservation easement to a land trust or stewardship fund must be arranged at the outset of the approved BPDP IX BANK PARCEL CLOSURE A Bank Parcel Closure shall be identified as the event when the Sponsor is relieved of all of its responsibilities to the Bank Parcel and there are no mitigation credits left to sell B Bank Parcel Closure shall commence only after all of the following events have occurred 1 Transfer or assign the conservation easement and all of its interests in perpetuity to a land trust or stewardship program as described in Item B of Section V of this instrument 2 All five years of monitoring completed and all monitoring reports submitted and approved by DWQ 3 All credits have been released and debited and updated ledgers showing a zero credit balance have been submitted and approved by DWQ X GENERAL PROVISIONS A Upon the presentation of proper credentials and during normal business hours the Sponsor and the landowner shall grant permission to the Director an authorized representative of the Director or DENR staff to enter the property containing the Bank Parcel(s) B Amendments This Banking Instrument may be amended or modified only with written approval of all signatory parties C Any transfer of the Sponsors rights or obligations outlined in this Instrument or any other agreement referenced in this Instrument to a third party must be approved by DWQ prior to the transfer D Force Majeure After the sale of all available credits 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 DWQ has released all of the credits the Sponsor shall take remedial action to restore the property to its condition prior to the event in a manner sufficient to provide adequate mitigation to cover credits that were sold prior to the occurrence of the event Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate as determined by DWQ and the Sponsor 10 DWQ must concur in writing that a force majeure event has occurred for this provision to apply F Oversight Actions taken by DWQ may include but are not limited to the following 1 Site visits 2 BPDP review and approval of items listed in Items A and B of Section V of this instrument 3 Monitoring Report review and approval of items listed in Items L and M of Section V of this instrument 4 As Built Report review and approval of items listed in Item F of Section V of this instrument 5 Credit Ledger review and approval of items listed in Item C and D of Section VII of this instrument 6 Mitigation Credit Receipt review of items listed in Item E of Section VII of this instrument and cross analysis to credit ledgers 7 Information requests file reviews and audits Reports ledgers files and other information shall be made available to DWQ upon request unless otherwise specified in this or any other document G Validity of the Banking Instrument This Instrument will become valid on the date of the last party s signature H Specific Language of Banking Instrument Shall Be Controlling To the extent that specific language in this document changes modifies or deletes terms and conditions contained in those documents that are incorporated into the Instrument by reference and that are not legally binding the specific language within the Instrument shall be controlling I Any disputes over decisions regarding this Instrument shall be referred to the Director of DWQ for a decision The Director s decision is subject to review as provided in Articles 3 and 4 of G S 150B J This Agreement shall be binding upon the parties and is entered into knowingly intelligently and voluntarily K Notices All notices and other communications which may be or are required to be given or made by any party to the other shall be in writing and shall be deemed to have been properly given and received on the date delivered in person or deposited in the United States mail registered or certified 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 Wildlands Engineering 1430 S Mint Street Suite 104 Charlotte NC 28203 Attn Shawn Wilkerson 11 Copy to 5605 Chapel Hill Road Suite 122 Raleigh NC 27607 Attn John Hutton If to DWQ NC Division of Water Quality— Wetlands & Stormwater Branch Attn Nutrient Offset Program Coordinator 1650 Mail Service Center Raleigh NC 27699 1650 L Applicable Law This Agreement shall be construed under the laws of the State of North Carolina WILDLANDS ENGINEERING INC (Print) (Signature) Title Date NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WATER QUALITY By (Print) (Signature) Title Date 12 ATTACHMENT A All Basins General Statutes G S § 143 214 1 Water water quality standards and classifications duties of Commission G S § 143 214 7 Stormwater runoff rules and programs G S § §143 214 20 24 Riparian Buffer Protection Program G S §143 215 3(a)(1) General powers of Commission and Department auxiliary powers G S § 143 215 6A Enforcement Procedures Civil Penalties G S § 143 215 6B Enforcement Procedures Criminal Penalties G S §143 215 6C Enforcement Procedures Injunctive Relief G S § 143 215 8B Basmwide Water Quality Management Plans G S § 143B 282 Environmental Management Commission — creation powers and duties Session Laws S L 2011 343 (Amendment to G S § 143 214 11) S L 2009 337 (Amendment to G S §143 214 11) Administrative Rules 15A NCAC 02B 0202 Definitions 15A NCAC 02B 0223 Nutrient Sensitive Waters 15A NCAC 02B 0237 Best Management Practice Cost Effectiveness Rate 15A NCAC 02B 0240 Nutrient Offset Payments 15A NCAC 02B 0269 Riparian Buffer Mitigation Fees to the NC Ecosystem Enhancement Program 15A NCAC 02B 0274 Nutrient Offset Payment Rates for the NC Ecosystem Enhancement Program Neuse River Basin Buffer and Neuse Nutrient Strategy Session Laws S L 1998 221 (Part I) S L 1995 572 Administrative Rules 15A NCAC 02B 0232 Basin Nutrient Reduction Goal 15A NCAC 02B 0233 Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B 0234 NPDES Wastewater Discharge Requirements 15A NCAC 02B 0235 Basmwide Stormwater Requirements 15A NCAC 02B 0236 Agricultural Nitrogen Loading Reduction 15A NCAC 02B 0238 Agricultural Nitrogen Reduction Strategy 15A NCAC 02B 0239 Nutrient Management 15A NCAC 02B 0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B 0242 Mitigation Program for Protection and Maintenance of Riparian Buffers 13