HomeMy WebLinkAbout20191261 Ver 2_MBI Mod for Signature_Director_20220902North Carolina Department of Environmental Quality Division of Water Resources
512 North Salisbury Street 1611 Mail Service Center Raleigh, North Carolina 27699-1611
919.707.9000
August 2, 2022
TO: Michael Pjetraj
Section Chief – Water Quality Permitting Section
FROM: Katie Merritt
Nutrient Offset & Buffer Banking Coordinator
THROUGH: Paul Wojoski
Supervisor - 401 & Buffer Permitting Branch
SUBJECT: Division Approval of the MODIFIED Kittrell Hill Mitigation Banking Instrument
for Riparian Buffer Mitigation & Nutrient Offset Credits Pursuant to the Neuse River Basin
Nutrient Management Strategy for Eco Terra, LLC
Mitigation Banking Instruments (MBI) are required per 15A NCAC 02B .0295 and 15A NCAC
02B .0703 for entities called “Sponsors” wanting approval by the Division of Water Resources
(DWR) to establish a buffer mitigation bank or a nutrient offset bank, respectively. The
establishment of a buffer mitigation or nutrient offset bank allows the Sponsor to generate
riparian buffer credits and/or nutrient offset credits and then to sell those credits to third parties
for permitting requirements.
The attached final Mitigation Banking Instrument (MBI) was originally signed and approved by
DWR on March 26, 2020. The original MBI was between the Sponsor, Eco Terra Partners, LLC
& DWR. On August 1, 2022, DWR was notified that Eco Terra Partners, LLC was formally
changed to Eco Terra, LLC and supporting documentation was provided. Thus, the MBI
required text changes acknowledging the formal name change of the Sponsor on pages 2 and 16
and on the ledger templates in Attachment C. No other pages within the MBI have been
modified from the version that was approved on March 26, 2020.
The final MBI is ready for your signature. Please sign and date page 16 and return to Katie
Merritt for final signature.
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AGREEMENT TO ESTABLISH THE KITTRELL HILL MITIGATION
BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR RIPARIAN
BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO
THE NEUSE RIVER BASIN NUTRIENT MANAGEMENT STRATEGY
TABLE OF CONTENTS
I. PREAMBLE ...................................................................................................................... 2..
II. LOCATION AND GEOGRAPHIC SERVICE AREA .................................................... 2
III. AUTHORITIES ................................................................................................................. 3
IV. ESTABLISHMENT OF BANK PARCEL ........................................................................ 3
V. BANK PARCEL DEVELOPMENT PACKAGE .............................................................. 5
VI. POST CONSTRUCTION DOCUMENTATION .............................................................. 7
VII. CALCULATION OF MITIGATION CREDITS ............................................................... 9
VIII. CREDIT RELEASE SCHEDULE ................................................................................... 11
IX. PROCEDURE FOR DEBITING AND CREDITING ..................................................... 12
X. BANK PARCEL CLOSURE ........................................................................................... 14
XI. GENERAL PROVISIONS ............................................................................................... 14
ATTACHMENTS & REFERENCES
A - Division of Water Resources Authority Document
B– NCDWR – Methodology & Calculations for Nutrient Reductions on the Bank Parcel
C- Ledger Templates
1. Nutrient Offset Payment Rule:
http://reports.oah.state.nc.us/ncac/title%2015a%20%20environmental%20quality/chapter%2002%
20%20environmental%20management/subchapter%20b/15a%20ncac%2002b%20.0240.pdf
2. Riparian Buffer Mitigation Rule:
http://reports.oah.state.nc.us/ncac/title%2015a%20-%20environmental%20quality/chapter%2002%20-
%20environmental%20management/subchapter%20b/15a%20ncac%2002b%20.0295.pdf
3. NC Session Law 2019-86 “Nutrient Offset Credits”:
https://ncleg.gov/EnactedLegislation/SessionLaws/HTML/2019-2020/SL2019-86.html
4. Buffer Interpretation/Clarification #2008-019 for diffuse flow:
https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Buffer%20Clarification
%20Memos/Diffuse-Flow-for-Buffer-Mitigation-Sites-Buffer-Clarification-Memo-20080819.pdf
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I.PREAMBLE
This Mitigation Banking Instrument ("Instrument") regarding the establishment,
use, operation, and maintenance of the Kittrell Hill Nutrient Offset and Buffer Mitigation
Bank Parcel ("Bank Parcel") to provide Neuse Riparian Buffer mitigation credit ("Riparian
Buffer Credits") and Neuse Nutrient Strategy nutrient load reduction credit
("Nutrient Offset Credits") is made and entered into by and among Eco Terra, LLC acting
as the Bank Sponsor ("Sponsor"), and the North Carolina Department of
Environmental Quality- Division of Water Resources ("DWR"). This Instrument is in
accordance with 15A NCAC 02B .0240 and the Consolidated Buffer Mitigation Rule
15A NCAC 02B .0295, which became effective on November 1, 2015, see references.
This Instrument is a modification do the Instrument approved March 26, 2020 and identifies a
change in the name of the Sponsor from Eco Terra Partners, LLC to Eco Terra, LLC.
The purpose of the Bank is:
A.To improve water quality, reduce nutrient loads, enhance flood attenuation and restore
wildlife habitat along tributaries to Oldwoman Branch and nutrient sensitive waters of Little
Contentnea Creek, through the restoration of riparian buffers and adjacent riparian areas.
B.To convert agricultural land uses with riparian areas associated with streams and/or
agricultural ditches into a fully stocked forested community with the intent to substantially
reduce nutrient loadings into surface waters associated with agricultural land uses.
C.To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset
Credits to third parties in the Neuse River Basin, for both existing and proposed
development, or to offset NPDES-permitted wastewater nutrient sources requiring such
mitigation or offset.
II.LOCATION AND GEOGRAPHIC SERVICE AREA
A. The Geographic Service Area ("GSA") is the designated area wherein a Bank can
reasonably be expected to sell Riparian Buffer Credits and/or Nutrient Offset Credits for
impacts due to development activities.
B.The GSA for this Instrument is limited to the United States Geological Survey (“USGS”) 8-
digit Hydrologic Unit Code ("HUC'') 03020203 of the Neuse River Basin.
C.The project is comprised of one parcel of land in Pitt County, NC, accessed from Kittrell
Hill Road, northeast of Farmville, NC. Land use within the Bank parcel is currently row
crop agriculture with unnamed tributaries draining to Oldwoman Branch. The project is located
at approximately 35.611142 N and -77.545014 W.
D. Sale or transfer of Riparian Buffer Credits shall be limited to the 8-digit HUC 03020203 in
the Neuse River Basin, unless otherwise authorized by the DWR or delegated local
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government in accordance with 15A NCAC 02B .0295.
E.Sale or transfer of Nutrient Offset Credits shall be limited to the 8-digit HUC 03020203 in
the Neuse River Basin in accordance with 15A NCAC 02B .0240, unless otherwise
authorized by the DWR in accordance with Session Law (S.L.) 2019-86.
III.AUTHORITIES
A. The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in
accordance with the requirements in the DWR Authority document referenced herein as
"Attachment A" and attached to this Instrument.
B. Projects eligible for utilization of the credits are those requiring authorization under the
requirements of Attachment A and any new approved North Carolina ("State") statutes and
rules for the Neuse Nutrient Sensitive Waters Management Strategy.
C. The selling of credits generated from the Bank Parcel approved under this Instrument, shall
be consistent with approved State statutes and rules for the Neuse Nutrient Sensitive Waters
Management Strategy.
D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel
Development Package (BPDP) to generate Riparian Buffer Credits and Nutrient Offset
Credits shall be consistent with State statutes and rules for the Neuse Nutrient Sensitive
Waters Management Strategy that are in place at the time a complete BPDP is submitted to
DWR.
IV.ESTABLISHMENT OF KITTRELL HILL BANK PARCEL
A.In accordance with 15A NCAC 02B .0295 and 15A NCAC 02B .0240, DWR has provided a
"Site Viability Letter" for the Bank Parcel proposed under this Instrument. The Site
Viability Letter is not an approval of the site to generate Riparian Buffer Credits and
Nutrient Offset Credits, but is a preliminary review of the Bank Parcel that details and
confirms existing land use conditions, defines the riparian sites (Enhancement Preservation,
or Restoration), and identifies features (streams, ditches, ponds, etc.) that meet general
criteria to be suitable to generate Riparian Buffer and Nutrient Offset credits.
Table 1.0
Bank Parcel Name/DWR
Project #
NCDWR Site
Visit
Site Viability Letter Viability Letter Expiration
Kittrell Hill/2019-1261v2 November 19
& 21, 2019
December 17, 2019 December 17, 2021
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B. A valid Site Viability Letter is required prior to submittal of each BPDP. Site Viability
Letters will either expire on the dates listed in the table above or upon submittal of an
individual As-Built Report to the DWR, whichever comes first. If a Site Viability Letter
expires prior to submittal of a complete BPDP as described in Section V to DWR, then the
Sponsor must submit a formal request to DWR for a new Site Viability Letter for that Bank
Parcel.
C. The Bank Parcel proposed for inclusion under this Instrument shall require a BPDP be
submitted to, and approved by, the DWR prior to use of the Bank Parcel for mitigation
purposes or sale or transfer of any associated credits. The contents of the BPDP are
provided in Section V.
D. The BPDP will be placed on public notice and made available for public commenting for 15
calendar days.
E. Riparian Buffer Credit may be achieved through restoration of DWR riparian buffers as
they are defined in 15A NCAC 02B .0233, and other riparian areas as allowed per 15A
NCAC 02B .0295 (n) and (o). Riparian buffer credits are only attainable if the width of
the restoration site is within at least 20 feet from tops of banks along streams and 30
feet from tops of banks along viable ditches. Riparian buffer credits are attainable to a
maximum of 200 feet from tops of banks of streams and 50 feet from the tops of banks
of viable ditches.
F. The Bank Parcel is intended to provide Riparian Buffer Credits as follows:
1. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B
.0295(b) adjacent to two intermittent streams.
2. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 02B
.0295(b) adjacent to ditches
3. Diffused flow will be maintained onsite. The Buffer Interpretation/Clarification
Memo #2008-019 may be applied where maintenance of diffuse flow onsite is
unattainable.
G. Nutrient Offset Credit on this Bank Parcel may be achieved through restoration of the
riparian areas adjacent to the intermittent streams and ditches where agriculture is the
predominant land use. The viable ditches onsite flow directly into intermittent streams
that drain offsite to the Oldwoman Branch that flows into Little Contentnea Creek. The
width of the restoration area must begin at the most landward limit of the top of bank
or the rooted herbaceous vegetation and extends landward a minimum of 50 feet and a
maximum of 200 feet on all sides of the surface waters.
H. The Bank Parcel is expected to provide Nutrient Offset Credits as follows:
1. Converting agricultural land uses within riparian areas to non-agricultural land
uses by placing a conservation easement around riparian areas along streams.
2. Planting hardwood trees on a Restoration Site, as defined in 15A NCAC 2B
.0295(b) adjacent to intermittent streams and ditches where agriculture has been
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determined by DWR to be the predominant landuse.
I. The total area of riparian restoration activities on the Bank Parcel is expected to be less
than 20 acres.
V. BANK PARCEL DEVELOPMENT PACKAGE
A. The Kittrell Hill BPDP submitted under this Instrument shall be submitted to DWR for
review and must be approved by DWR prior to any construction on the Bank Parcel.
The BPDP must describe any changes that have occurred to the site between the date of
the Site Viability Letter and the date the BPDP is submitted to DWR. The BPDP shall
include detailed information consistent with the sections below concerning; 1) site
location (8-digit HUC is required); 2) existing conditions with current photos; 3)
proposed buffer mitigation and nutrient offset activities including a detailed vegetation
plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated buffer
/nutrient credit calculations, which shall include credit generation, service area, and
accounting as appropriate for each regulatory authority; 7) stream buffer determination
letter from DWR; 8) Site Viability Letter from DWR; 9) service area figure for each
mitigation type proposed under this Instrument.
B. The Sponsor will obtain all applicable federal, state, and local documentation, permits,
or authorizations needed to construct and maintain the Bank Parcel. This Instrument
does not qualify as, or substitute for, such documentation, permit, or authorization.
C. Any restoration activities or construction within the stream, riparian buffers and other
riparian areas on the Bank Parcel to produce Riparian Buffer Credit or Nutrient Offset
Credit must be approved by DWR in writing prior to implementation. The failure of
the Sponsor to comply with this requirement may result in a revised or reduced credit
release schedule.
D. Requests for deviation from the approved BPDP must be submitted to DWR in
writing. Written approval from the DWR must be received prior to implementing any
deviation from the approved BPDP.
Property Disposition & Long-Term Management
E. Prior to the release of any credits, the Sponsor shall record a permanent conservation
easement at the Pitt County Register of Deed's office that is sufficient to ensure
protection, operation and maintenance of restored riparian buffers and other riparian
areas for the duration specified in the approved BPDP.
F. The form of the conservation easement shall be consistent with the standards
employed by the State of North Carolina in the protection of restored riparian buffers
and riparian areas and shall be approved by the DWR prior to the release of any
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credits.
G. The Sponsor shall not grant additional easements, right of ways, or any other property
interest in or to the project areas, without prior approval from the DWR.
H. The Sponsor agrees to transfer or assign the conservation easement and its interests in
perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and
170(h) of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring
Report. The holder shall be a land trust or stewardship program that will hold and
enforce the conservation easement and the interests in perpetuity. The Sponsor shall
choose a land trust or stewardship program that is accredited by the Land Trust
Accreditation Commission and/or has been approved by DWR prior to the end of the
fourth year monitoring period. A land trust must be certified under 501(c)(3) of the
Internal Revenue Code.
I. 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.
Financial Assurances
J. Following approval of the BPDP, the Sponsor shall provide a Performance /Maintenance
Bond from a surety company that is rated no less than an "A-" as rated by A.M. Best to
construct the site according to the approved BPDP. It is the Sponsor's responsibility to
confirm that the surety company is rated at least "A-" with each annual bond renewal.
K. The Performance Bond amount shall be 100% of the estimated cost for implementation of
the riparian restoration and other activities of the Bank Parcel as described in the approved
BPDP. No bond shall be less than $150,000.00 to cover construction costs.
L. Alternatively, in lieu of posting the Performance Bond, the Sponsor may elect to construct
the project prior to the first credit release.
M. Once DWR has released all credits for completion of all the items listed below, then the
Bank Sponsor will be released from its performance obligations under the performance
bond required in Item J and K of this section:
1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded, Financial
Assurance Posted;
2. Mitigation Site Earthwork and Planting and Installation of Monitoring Devices
Completed;
3. As-Built Report as described in Section VI has been received by DWR; and
4. DWR has submitted a written approval of the As-Built Report.
N. To comply with this section, DWR must be the Obligee on all performance bonds.
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VI. POST CONSTRUCTION DOCUMENTATION
As-Built Report
A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this
Instrument, to establish, maintain, and monitor Neuse Riparian Buffers or other riparian
areas until Item B (1) and (2) of Section X have been satisfied.
B. The Sponsor will submit an as-built plan and report to DWR for the Bank Parcel within 30
calendar days after completing the riparian buffer mitigation and nutrient offset areas. The
as- built report will describe any deviation from the approved BPDP and will document all
the following:
1. Buffer restoration: planting details and other construction activities that were required in
the BPDP, invasive species control, monitoring device locations, vegetation plot
locations, photo point locations, surface and groundwater elevations, as appropriate.
2. .Boundary Survey of the conservation easement area, signed and sealed by a
licensed surveyor, including an enumeration of the final mitigation areas for
riparian buffer credits and nutrient offset credits (in both square feet and acres).
3. As-built map of the mitigation area showing where riparian restoration was performed
and any deviations to the Bank Parcel from what was approved in the BPDP.
4. Aerial map of the mitigation area that was included in the approved BPDP.
Financial Assurance
C. After completion of the riparian restoration and mitigation activities , a separate
Performance/Maintenance Bond will be secured for 100% of the estimated cost to
implement the monitoring and maintenance plan as described in the approved BPDP. The
Bond must be from a surety company that is rated no less than an "A-" as rated by A.M.
Best, and it is the Sponsor' s responsibility to confirm that the surety company is still rated
no less than an "A-" with each annual bond renewal.
D. A Performance/Maintenance Bond shall be secured each year for a minimum of five years,
and until DWR has released all Riparian Buffer Credits and Nutrient Offset Credits to the
Bank Sponsor. Upon DWR approval, the bond may be lowered each year based on the
adjusted cost to complete the monitoring. No bond shall be less than $100,000 to cover
monitoring and maintenance costs.
E. Once DWR has released all credits for completion of Tasks 1-9 in accordance with the
credit release schedule in Section VIII, the Bank Sponsor can be released from its
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performance obligations under the performance bond required in "C-D" of this Section.
F.To comply with this section, DWR must be the Obligee on all performance bonds.
Monitoring and Maintenance Reports
G.The Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as
DWR determines that the performance standards described below have been met. The
monitoring period shall be a minimum of five consecutive years.
H.Performance Standards for Vegetation: Native hardwood trees or native hardwood tree and
shrub species should be planted at a density sufficient to provide 260 stems per acre after
five years. A minimum of four (4) native hardwood tree or four (4) native hardwood tree
and shrub species must be planted. No one species shall be greater than 50% of the planted
sterns. A list of species for planting will be detailed in the BPDP for approval. Native
hardwood tree volunteer species may be included to meet performance standards as
determined by the DWR.
I.A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters
in height.
J.If the performance standards of the vegetation are not met, supplemental plantings may
be required. Supplemental plantings will be utilized until the required densities have
been achieved and maintained for five years. Bank Parcel maintenance; such as ensuring
diffuse flow, managing invasive species, and pest control will be included in the
BPDP.
K.Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit:
Reporting criteria of the riparian restoration areas shall be based on the Carolina
Vegetation Survey (CVS)- EEP Protocol for Recording Vegetation Level 2 Plot
Sampling Only Version 4.0 or any updated versions of this protocol in place at the date
of acceptance of the BPDP. The Sponsor shall submit to the DWR an annual
monitoring report no later than December 31 of each year for a minimum of five
consecutive years after the first full growing season. This report will describe the
conditions of each Bank Parcel, including an evaluation of the performance standards
of the vegetation contained within the approved BPDP. Reports shall contain the
following:
1.A U.S. Geological Survey map showing location of the Bank Parcel;
2.A detailed narrative summarizing the condition of the Bank Parcel along with
any maintenance or remediation performed that year; and
3.A map, survey, or other figure showing locations of sampling plots, permanent
photo points, location of transects, etc.; and
4.Monitoring data, including specific vegetative counts showing that the trees or
tree and shrub species planted are meeting performance standards and updated
photographs; and
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5.A copy of the most recent Bank credit/debit ledgers; and
6.Corresponding verification letters from designated local governments upon
request; and
7.Corresponding Mitigation Transfer Certificates upon request
8.Proof of performance bond renewal to cover the next monitoring year (if
applicable).
Contingency Plans/Remedial Actions
L.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 DWR and implement appropriate remedial
actions for the Bank Parcel and the Bank. Depending on the degree of remedial actions
required, the DWR may modify the monitoring period.
VII.CALCULATION OF MITIGATION CREDITS
Riparian Buffer Credits
A.All Riparian Buffer Credits shall be determined based on the ratios and percentages
provided in 15A NCAC 02B .0295 (m) and (n).
B.Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295
(n)and (o), defined in 15A NCAC 02B .0295 (b) and performed on agricultural lands
within the Bank Parcel, may be used for either Riparian Buffer Credit or Nutrient
Offset Credit, but not both.
C.Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560
buffer credits per one acre.
Nutrient Offset Credits
D.The square footage of Nutrient Offset Credits on the Bank Parcel will be determined
by applying the applicable ratio as provided in 15A NCAC 02B .0295(m) for a
Restoration Site. All riparian areas proposed for Nutrient Offset Credit must be a
minimum of 50 feet from the top of stream and ditch banks with adjacent agricultural
land uses as noted in a Site Viability Letter.
E.Nutrient Abatement of Restored Riparian Area/Buffers on agricultural land: The
Sponsor and DWR agree to the following:
1.The pounds of nitrogen offset per acre of restored riparian areas/buffers shall
be 2,273.02 pounds per acre.
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F.The Sponsor and DWR agree that the methodology and calculations for determining
nitrogen reduction, associated with restoration of riparian areas on this Bank Parcel,
shall be fixed as part of the approval of this Instrument , with the fixed amount not
changing during the Bank Parcel Development or credit release schedule for the Bank
Parcel. The approved method and calculations for determining nutrient reductions
associated with the riparian restoration on this Bank Parcel is provided in further detail
in Attachment B.
This space left blank intentionally, do not add text to this space.
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VIII.CREDIT RELEASE SCHEDULE
A.Upon submittal of all appropriate documentation by the Sponsor, and subsequent
approval by DWR, it is agreed that the Riparian Buffer Credits and Nutrient Offset
Credits associated with the Bank Parcel will become available for sale to a third
party in accordance with the Credit Release Schedule in Table 2 below:
Table 2.0 - Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits
Task Project Milestone
% Credit
Available for
Sale
I
MBI and BPDP Approved by DWR, Conservation Easement Recorded* and
Financial Assurance posted 20
2
Site Earthwork, Planting and Installation of Monitoring Devices Completed, all
applicable permits obtained 20
3 Monitoring Financial Assurance Posted and Approval of As-Built Report 10
4 Monitoring Report #1: App roved by the DWR** & financial assurance renewed 10
5 Monitoring Report #2: Approved by the DWR** & financial assurance renewed 10
6 Monitoring Report #3: Approved by the DWR** & financial assurance renewed 10
7
Item B (I) of Section X in this Instrument has been completed and approved by
DWR. 5
No remaining credits will be released until Task 7 has been satisfied, assigning the conservation
easement to an approved land trust or long-term steward.
8 Monitoring Report #4: Approved by the DWR** & financial assurance renewed 5
9
Monitoring Report #5: Approved by the DWR** and final site visit by DWR has
been conducted 10
Total 100%
*For specification, please see Section V in this Instrument
** DWR Approval provided upon a determination that the site is meeting performance standards contained
within the approved BPDP
B.DWR may modify the credit release schedule based on the information submitted
or the order in which required information is received. DWR will notify the
Sponsor of any modification to the credit release schedule.
C.DWR may consider a Credit Release Schedule for a Bank Parcel based on the
extent of change between current onsite conditions and proposed post construction
conditions.
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IX. PROCEDURE FOR DEBITING AND CREDITING
Credit Ledgers
A. The Bank Sponsor shall maintain a credit ledger for each mitigation type for the
Bank Parcel under this Instrument: one accounting for Riparian Buffer Restoration
Credits in square feet and acres, and one accounting for Nutrient Offset Credits in
pounds and acres.
B. Each credit ledger shall be submitted on a separate 8 ½ in X 11in spreadsheet with
legible font style and font size. All ledgers shall be submitted using the templates
provided in Attachment C of this Instrument or any updated versions to these
templates as provided by DWR.
Credit Processing
C. Riparian Buffer Credits generated on this Bank Parcel will be used to provide
mitigation for authorized buffer impacts within the Neuse River Basin in
accordance with 15A NCAC 02B .0295 (f) and (g).
D. Nutrient Offset Credits generated on this Bank Parcel will be used to offset nitrogen
nutrient loadings within the 03020203 HUC of the Neuse River basin in
accordance with 15A NCAC 02B .0240.
E. Available Riparian Buffer credits (credits that have been released by DWR, but
not sold by the Sponsor) that are generated from riparian restoration and meet
criteria for nutrient offset credits as outlined in Section VII of this Instrument, the
Site Viability Letter, and the corresponding BPDP can be converted from Riparian
Buffer Credits to Nutrient Offset Credits upon written approval from DWR. Once
a credit has been converted to another credit type, the transaction is permanent and
the credit cannot be converted again.
F. Available Nutrient Offset Credits (credits that have been released by DWR, but
not sold by the Sponsor) that are generated from riparian restoration within 0-100’
from tops of banks and meet criteria for riparian buffer credits as outlined in
Section VII of this Instrument, the Site Viability Letter, 15A NCAC 02B .0295
and the corresponding BPDP, can be converted from Nutrient Offset Credits to
Riparian Buffer Credits upon written approval from DWR. Once a credit has been
converted to another credit type, the transaction is permanent and the credit cannot
be converted again.
G. The Bank Sponsor shall obtain written verification of nutrient offset need from a
designated local government in HUC 03020203 of the Neuse River Basin, or from
DWR through an approved NPDES permit for wastewater nutrient sources, prior
to debiting Nutrient Offset Credits from the Bank Parcel.
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H.The Bank Sponsor shall obtain verification of buffer mitigation required from the
delegated local government in HUC 03020203 of the Neuse River Basin or DWR
prior to debiting Riparian Buffer Credits from the Bank Parcel.
I.All credit and debit transactions for each Bank Parcel under this Instrument shall
be accurately depicted in the credit ledgers. The Sponsor shall submit accurate and
up-to-date credit ledgers for each Bank Parcel by the tenth (10th) of each month. At
a minimum and only upon request, DWR shall receive a hard copy of updated
credit ledgers along with corresponding Mitigation Credit Transfer Certificates and
all corresponding letters from the designated local governments or DWR where
applicable once a year. Notification of all credit sales shall be provided to DWR
until all credits that have been released have been sold.
Mitigation Credit Transfer Certificates
J.All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate”) that
is required to be provided to the buyer of Riparian Buffer and/or Nutrient Offset
credits, that will include, at a minimum, the following information:
1.Bank Details: (1) sponsor Name, (2) Bank Parcel name as it appears in this
Instrument, (3) DWR project number for the BPDP as it appears in Table
1.0.
2.Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3
-when applicable) amount of nitrogen Nutrient Offset Credits purchased in
pounds and confirmation from the designated local government or DWR of
the amount required, and (4 - when applicable) amount of Riparian Buffer
Credits purchased in square feet and the confirmation from DWR or the
local government of the amount required.
3.Permitted Project Details: (1) project name as it appears on DWR or local
government permits and/or certifications, (2) 8-digit HUC, (3) river basin,
(4)nutrient strategy applicable to the project, (5 - when applicable)
designated local government or DWR requiring Nutrient Offset Credits,
and/or (6) DWR authorization number or delegated local government
requiring Riparian Buffer Credits for this project.
K. If the DWR determines that the Bank is operating at a deficit (e.g. the Sponsor is
selling and/or transferring credit that is not available), or the Bank is selling or
transferring credits out of compliance with statutes, rules or this Agreement, the
sale/transfer of credits will immediately cease, and the DWR, in consultation with
the Sponsor, will determine what remedial actions are necessary.
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
14
X.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 Riparian Buffer Credits
or Nutrient Offset Credits left to sell.
B.Bank Parcel Closure shall commence only after all the following events have occurred:
1.Transfer or assign the conservation easement and all its interests, in
perpetuity, to a land trust or stewardship program as described in Section V of
this instrument.
2.All five years of monitoring completed and all monitoring reports
submitted and approved by DWR
3.All credits have been released and debited and updated ledgers showing
zero credit balances have been submitted and approved by DWR.
C.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 of DWR, an
authorized representative of the Director of DWR, 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 Sponsor's rights or obligations outlined in this Instrument or
any other agreement referenced in this Instrument to a third party must be
approved by DWR prior to the transfer.
D.Force Majeure: After 100% of all the credits have been released according to the credit
release schedule in Section VIII and confirmation has been received by the DWR that
the Conservation . Easement has been successfully assigned in compliance with Item H of
Section V, the Sponsor will not be responsible for Bank failure that is attributed to natural
catastrophes including but not limited to flood, drought, disease, regional pest infestation,
etc. that are beyond the control of the Sponsor.
E.However, if an event occurs before 100% of all the credits have been released
according to the credit release schedule in Section VIII, 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
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
15
the extent necessary and appropriate, as determined by DWR and the Sponsor.
DWR must concur in writing that a force majeure event has occurred for this provision to apply.
F.Oversight: Actions taken by DWR may include, but are not limited to, the following:
1.Site visits
2.Issuance of Site Viability Letters.
3.Mitigation determinations /mitigation viability assessments.
4.BPDP review and approval of items listed in Section V of this instrument.
5.As-Built Report review and approval of items listed in Section VI of this
instrument.
6.Monitoring Report review and approval of items listed in Section VI of
this instrument.
7.Credit Ledger review and approval of items listed in Section IX of this instrument.
8.Certificate review of items listed in Section IX of this instrument and cross
analysis to credit ledgers.
9.Information requests, file reviews and audits
Reports, ledgers, files and other information shall be made available to DWR upon request, unless
otherwise specified in this or any other document.
G.Validity of 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 DWR 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, received
via electronic mail 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.
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
8/13/2022
Michael Pjetraj
Deputy Director
Nutrient Offset Program & Buffer Mitigation Program
Authorities for MBI
Updated
10/28/2019
ATTACHMENT A
Authorities pertaining to the Kittrell Hill Mitigation Banking Instrument
All Basins
General Statutes:
G.S. §143-214.11 Ecosystem Enhancement Program
G.S. §143-214.26 Nutrient Offset Credits
G.S. §143-214.20-24 Riparian Buffer Protection Program
G.S. §143-214.7 Stormwater runoff rules and programs
G.S. §143-215.8B Basinwide Water Quality Management Plans
Session Laws
S.L. 2015-246
S.L. 2015-149
S.L. 2014-90
S.L. 2014-120
S.L. 2013-413
S.L. 2013-121
S.L. 2013-265
S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. §143-215.1)
S.L. 2011-343 (Amendment to G.S. §143-214.11)
S.L. 2009- 337 (Amendment to G.S. §143-214.11)
Administrative Rules:
15A NCAC 02B .0202 Definitions
15A NCAC 02B .0223 Nutrient Sensitive Waters
15A NCAC 02B .0237 Best Management Practice Cost-Effectiveness Rate
15A NCAC 02B .0240 Nutrient Offset Payments
15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers
Neuse River Basin Buffer and Neuse Nutrient Strategy
Session Laws
S.L. 2019-86
S.L. 2011-394
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 .0235 Basinwide 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
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
ATTACHMENT B
NCDWR – Methodology & Calculations for Nutrient Reductions on the Bank Parcel
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
NC Division of Water Quality - Methodology and Calculations for determining Nutrient Reductions associated with Riparian Buffer EstablishmentNitrogen Water Quality Benefits for Riparian Buffer Restoration1). Benefit of Land Use Change2). Benefit of Nutrient Removal from Nonpoint Source Runoff3). Benefit of Nutrient Removal from Periodic Overbank FloodNitrogen General Assumptions:1. Life expectancy of Riparian Buffer is assumed to be 30 years. (Life expectancy for stormwater detention pond is 20 - 30 yrs)2. Restored Riparian Buffer is assumed to be natural.Effectiveness of Riparian BufferAnnual Effectiveness (kg/ha/yr)Annual Effectiveness (lb/ac/yr)Effectiveness in 30 yrs (lb/ac)Benefit (1) 11.08 9.89 296.6Benefit (2) 70.09 62.54 1876.1Benefit (3) 3.75 3.35 100.4Total 84.92 75.77 2273.0Nitrogen Benefit Descriptions and Assumptions:1) Benefit is due to change land use. Assume existing land use export coefficient is a composite export coefficient with a value of 12.98 kg/ha (agriculture and urban). Wetland export coefficient is 1.9 kg/ha.Th l t i t t t i d d b 11 08 k /h ll b l d h i The annual nutrient output is decreased by 11.08 kg/ha annually by land use changing.2) Benefit is due to nitrogen removal from nonpoint source runoff. Nutrient contribution/buffer treatment area ratio is approximately 10.8 (based on studies examined by Gannon 1997). In flow loading is calculated by nutrient contribution area x composite export coefficient. In flow loading is 10.8 ha x 12.98 kg/ha = 140 kg/ha/yr. Nutrient removal due to this benefit is calculated by in flow loading x removal efficiency *Gannon, Richard. 1997. Effectiveness of Wetland Riparian Areas for Treatment of Agricultural Pollution Sources: A Literature Review. (Draft) The nitrogen removal efficiency is 50% based on various literature. * Kadlec, Robert H. and Robert L. Knight. 1996. Treatment Wetland * Moshiri, Gerald A.1993. Constructed Wetlands for Water Quality Improvement. Lewis Publi. * Mitsch, William J. 1994. Global Wetlands: Old world and New. Elsevier3) Benefit is due to nitrogen removal from overbank flooding Nitrogen concentration is assumed to be 2.5 mg/L. Assume overboard is 1 ft. Flood frequency is assumed to be once every year. Nutrient removal due to this benefit is estimated by in flow concentration x area (1 ha) x overboard height x removal efficiency.Formula for Calculating Nitrogen Offset Reductions on Riparian Buffer Restoration Sites:Size (Acres) * 75.77(lbs/Acre/Year) * 30 Years = Total Pounds of Nitorgen Removed from Riparian Buffer Project1DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
Phosphorus Water Quality Benefits for Riparian Buffer Restoration1). Benefit of Land Use Change2). Benefit of Nutrient Removal from Nonpoint Source RunoffPhosphorus General Assumptions:1. Life expectancy of Riparian Buffer is assumed to be 30 years. Effectiveness of Riparian BufferAnnual Effectiveness (lb/ac/yr)Effectiveness in 30 yrs (lb/ac)Benefit (1) 1.73 51.90Benefit (2) 3.15 94.50Total 4.88 146.40Phosphorus Benefit Descriptions and Assumptions:1) Benefit is due to change land use1, 2 Export coefficient for agricultural land is 2.15 (lb/ac/yr). Export coefficient for riparian buffer is 0.42 (lb/ac/yr). The annual total phosphorus (TP) output is decreased by 1.73 lb/ac annually by land use changing.2) Benefit is due to TP removal from nonpoint source runoff 3, 4 Mass load for TP reductions for buffer is estimated to be 3.15 lb/ac/yr.Page 2Assumptions: Riparian buffer restorations only occur on agricultural lands. Width of restored riparian buffer is 50 feet, and with mixture of grass and forest.References:1 NC Division of Water Quality memo 'Export Coefficients Revisited' (1996)2 Comparison of Selected TP Loading Coefficients (Jim Blose, 2001)4 A Review of the Scientific Literature on Riparian Buffer Width, Extent and Vegetation. (Seth Wenger, 1999) Formula for Calculating Phosphorus Offset Reductions on Riparian Buffer Restoration Sites:Size (Acres) * 4.88(lbs/Acre/Year) * 30 Years = Total Pounds of Total Phosphorus Removed from Riparian Buffer Project3 Cost-Effectiveness Study of Selected Agricultural Best Management Practices in the Neuse and Tar-Pamlico River Basins (Todd Kennedy, 2001) Page 2DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
16
ATTACHMENT C
Credit Ledger Templates
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
*Credits shown below are as approved by the MBI, BPDP, and As-Built.
Sale/
Release Date Purchaser or % Credit Release Project w/ HUC #Gov't
Requiring
Square Feet Ft2 Square Feet Ft2 Square Feet Ft2
Credits Released/Available
to Bank
Credits Debited/Sold From
Bank Buffer Credit Balance
Eco Terra, LLC Kittrell Hill MBI
(Kittrell Hill Nutrient Offset and Riparian Buffer Mitigation Bank)
HUC 03020101
Buffer Credit Ledger
Date Last Updated:
DWR
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#:
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:
61v2
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F
*Credits shown below are as approved by the MBI, BPDP, and As-Built.
Sale/
Release Date Purchaser or % Credit Release Project w/ HUC #
Gov't
Requiring
Pounds of
Nitrogen Ft2 Pounds of
Nitrogen Ft2 Pounds of
Nitrogen Ft2
Credits Released/Available to
Bank
Credits Debited/Sold From
Bank Nutrient Credit Balance
(Parcel Name w/ HUC #) Nitrogen Credit Ledger
Date Last Updated:
DWR Bank Parcel Project #:
Total Credits Released To Date:
Eco Terra, LLC Kittrell Hill MBI
(Kittrell Hill Nutrient Offset and Riparian Buffer Mitigation Bank)
HUC 03020101
Nitrogen Credit Ledger
Date Last Updated:
DWR Bank Parcel Project #: 2019-1261v2
Total Credits Released To Date:
DocuSign Envelope ID: 9ACEF675-D818-4F01-82BE-27AC609DEA7F