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Home My WebLink About20201095 Ver 1_Wildlands Catawba UMBI Buffers DWR Final_202208191 AGREEMENT TO ESTABLISH THE WILDLANDS CATAWBA UMBRELLA MITIGATION BANKING INSTRUMENT IN THE CATAWBA RIVER BASIN FOR RIPARIAN BUFFER MITIGATION CREDITS IN THE CATAWBA WATERSHED TABLE OF CONTENTS I. PREAMBLE ............................................................................................................................ 2 II. LOCATION AND GEOGRAPHIC SERVICE AREA ....................................................................... 2 III. AUTHORITIES ........................................................................................................................ 3 IV. ESTABLISHMENT OF BANK PARCELS ..................................................................................... 3 V. PRES‐CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL .................................... 5 VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL .................................... 7 VII. CALCULATION OF CREDITS ................................................................................................... 9 VIII. CREDIT RELEASE SCHEDULE ................................................................................................ 11 IX. PROCEDURE FOR DEBITING AND CREDITING ..................................................................... 12 X. BANK PARCEL CLOSURE ...................................................................................................... 13 XI. GENERAL PROVISIONS ........................................................................................................ 13 ATTACHMENTS A ‐ Division of Water Resources Authority Document B –Ledger Templates C‐ Project Credit Table (example) 1. 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 2. Buffer Interpretation/ Clarification # 2008‐ 019 for diffuse flow: https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Buffer%20Clarification%2 0Memos/Diffuse‐Flow‐for‐Buffer‐Mitigation‐Sites‐Buffer‐Clarification‐Memo‐20080819.pdf 3. Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits (November 2019): https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Mitigation/Issues‐‐‐ Resolutions‐Ver‐1.0‐buffer‐mitigation‐nutrient‐offset.pdf 2 I. PREAMBLE This Wildlands Catawba Umbrella Mitigation Banking Instrument (“Instrument”) regarding the establishment, use, operation, and maintenance of the Double Rock Bank Parcel and Firestone Bank Parcel (“Bank Parcels”) to provide Catawba Riparian Buffer mitigation credits (“Riparian Buffer Credits”) is made and entered into by and among Wildlands Holdings VI, 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 the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Reference Number 1). The purpose of the Bank is: A. To restore, enhance, and preserve riparian vegetation adjacent to mitigated streams with the intent to improve water quality, enhance flood attenuation and restore wildlife habitat along unnamed tributaries within the Catawba Watershed. B. To convert agricultural land uses within riparian areas adjacent to mitigated streams into a dense, hardwood vegetated state with the intent to reduce nutrient loadings associated with agricultural practices into streams. C. To provide buffer mitigation and sell any resulting Riparian Buffer Credits to third parties in specific areas within the Catawba River Basin for development (both existing and proposed) 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 for impacts due to development activities. B. The GSA for the Bank Parcels under this Instrument is limited to the Catawba River mainstem below Lake James and along mainstem lakes from and including Lake James to the North Carolina and South Carolina border in the Catawba River Basin in accordance with 15A NCAC 02B .0614. C. Sale or transfer of Riparian Buffer Credits shall be limited to the GSA described in Item B of this Section unless otherwise authorized by the DWR or a delegated local government in accordance with 15A NCAC 02B .0295. 3 D. The following table provides site‐specific details of the Bank Parcels proposed under this Instrument, which are all within the Catawba Watershed; Table 1.0 – Site-specific Details Bank Parcel Name County 8-Digit USGS Hydrologic Unit Code DWR ID # Project Location Named Receiving Stream Primary Land Use/s Double Rock Alexander Catawba 03050101 2020‐ 1095 35.86303, ‐81.10109 Elk Shoals Creek Agriculture Firestone Catawba Catawba 03050101 2020‐ 1096 35.76608 ‐81.16744 Charles Branch Agriculture III. AUTHORITIES A. The Bank Parcels will be used to provide Riparian Buffer Credits 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 Catawba River Basin. C. The selling of mitigation credits generated from the Bank Parcels approved under this Instrument shall be consistent with approved State statutes and rules for the Catawba River Basin. D. Buffer mitigation activities proposed under this Instrument and corresponding Buffer Mitigation Plans to generate Riparian Buffer Credits shall be consistent with State statutes and rules for the Catawba River Basin that are in place at the time a complete Buffer Mitigation Plan is submitted to DWR. IV. ESTABLISHMENT OF BANK PARCELS A. In accordance with 15A NCAC 02B .0295, DWR has provided a “Site Viability Letter” for the Bank Parcels proposed under this Instrument. The Site Viability Letter is not an approval of the site to generate Riparian Buffer Credits or 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 Credits and nutrient offset credits. Table 2.0 below outlines when a Site Viability Letter was issued by DWR for the Bank Parcels proposed under this Instrument: 4 Table 2.0 – Site Viability Letter Details Bank Parcel NC DWR Site Evaluation Viability Letter Received Viability Letter Expiration Date Double Rock December 7, 2021 January 5,2022 January 5, 2024 Firestone December 7, 2021 January 5,2022 January 5, 2024 B. A valid Site Viability Letter is required prior to submittal of each Buffer Mitigation Plan. 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 Buffer Mitigation Plan 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 Parcels proposed for inclusion under this Instrument shall each require a Buffer Mitigation Plan be submitted to, and approved, by the DWR prior to use of the individual Bank Parcels for buffer mitigation purposes or the sale or transfer of any associated credits. The contents of the Buffer Mitigation Plan are provided in Section V. D. These Bank Parcels are slated to be developed in conjunction with the Wildlands Catawba Umbrella Mitigation Bank along with the Firestone Mitigation Site, United States Army Corps of Engineers (USACE) Action ID# SAW 2020‐01534 and the Double Rock Mitigation Site USACE Action ID# SAW 202‐01532, for stream mitigation. The mitigation plans associated with these Bank Parcels have been submitted to the Interagency Review Team (IRT) for review and approval. E. Buffer Mitigation Plans submitted under this instrument will be placed on public notice and made available for public commenting for 15 calendar days. F. In general, Riparian Buffer Credits on these Bank Parcels will be generated along mitigated stream channels that are proposed for stream mitigation. The Stream Mitigation Plans for these Bank Parcels will be submitted under the Wildlands Catawba Umbrella Mitigation Bank referenced in D of this Section. Additionally, all activities conducted within riparian buffers and adjacent riparian areas for purposes of generating Riparian Buffer Credits will be conducted in concurrence with stream mitigation activities. Riparian Buffer Credits may be achieved on these Bank Parcels through restoration, enhancement and preservation of DWR riparian buffers as they are defined in 15A NCAC 02B .0724, and other riparian areas as allowed per 15A NCAC 02B .0295 (n) and (o) where applicable. Riparian Buffer Credits are only attainable if the width of the riparian areas are at least 20 feet from tops of banks along streams and at least 30 feet from tops of banks along viable ditches when measuring perpendicular and landward from feature tops of banks. Riparian Buffer Credits are attainable to a maximum of 200 feet from tops of banks of streams and a maximum of 50 feet from tops of banks of viable ditches. The viability potential of features to generate Riparian Buffer Credit is provided in the Site Viability Letters for the Bank Parcels and referenced in Table 2.0 of this Instrument. G. The Bank Parcels are intended to provide Catawba Riparian Buffer Credits as follows: 5 1. Planting hardwood trees on a Restoration Site as defined in 15A NCAC 02B .0295 (b) adjacent to viable mitigated streams and viable ditches. 2. Enhancing riparian areas along unnamed tributaries that are being grazed by cattle as allowed in 15A NCAC 02B .0295 (o)(6), by installing fencing around the perimeter of the mitigation site to permanently remove cattle out of the riparian areas and streams where they currently have access. 3. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295 (b) by placing a conservation easement around riparian areas as allowed by 15A NCAC 02B .0295 (o) (4) & (o)(5) along unnamed tributaries on the Bank Parcels. 4. Diffused flow will be maintained onsite. The Buffer Interpretation/Clarification Memo #2008‐019 may be applied where maintenance of diffuse flow onsite is unattainable. I. The total area of riparian restoration activities on the Double Rock Parcel is expected to be approximately 9.7 acres and 15.9 acres on the Firestone Bank Parcel. V. PRE‐CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL Buffer Mitigation Plan A. Each Buffer Mitigation Plan (Plan) 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. Each Plan must describe any changes that have occurred to the site between the date of the Site Viability Letter and the date the Plan is submitted to DWR. The Plan 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 activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) A Project Credit Table (see Attachment C) showing 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, and 10)all pertinent information including but not limited to permitting, bank stabilization, culvert removal, installation of any utilities indirectly or directly affecting the Bank Parcel, endangered or threatened species, presence of historical sites and an Environmental Data Resources (EDR) report to evaluate environmental risk associated with the land proposed for the Bank. 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 proposed construction within the stream channels, riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit must be approved by DWR in writing prior to implementation. The failure of the Sponsor to comply with this 6 requirement may result in a revised or reduced credit release schedule. All riparian activities must be conducted in concurrent with any stream mitigation activities and not before. D. Requests for deviation from the approved Plan must be submitted to DWR in writing. Written approval from the DWR must be received prior to implementing any deviation from the approved Plan. Property Disposition & Long‐Term Management E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements at the Alexander and Catawba 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 Plans. 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 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 and the USACE. H. The Sponsor agrees to 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 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 Plan Financial Assurances for Bank Parcel Development J. Following approval of each Plan, the Sponsor shall provide Performance/Maintenance Bonds from a surety company that is rated no less than an “A‐“ as rated by A.M. Best, to construct the sites according to each approved Plan. It is the Sponsor’s responsibility to confirm that the surety company is rated no less than an “A‐” with each annual bond renewal. K. The amount of each Performance Bond shall be 100% of the estimated cost for implementation of the riparian restoration and other related activities for the construction of the Bank Parcel as described in the approved Plan. No bond shall be less than $150,000.00 to cover construction costs. 7 L. Alternatively, in lieu of posting a Performance Bond, the Sponsor may elect to construct the Bank Parcel prior to the first credit release. M. Once DWR has released all credits for completion of all items listed below, then the Bank Sponsor will be released from its performance obligations for that Bank Parcel under the performance bond required in Item J and K of this section: 1. Instrument and Buffer Mitigation Plan Approved by DWR, Draft Stream Mitigation Plan Approved by the IRT, Conservation Easement Recorded, Financial Assurance Posted; 2. All Riparian Earthwork & Mitigation Activities, Planting and Installation of Monitoring Devices completed, easement boundaries adequately marked, all applicable permits obtained, stream mitigation activities completed & a site visit performed by DWR; 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. VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL As‐Built Report A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument and corresponding Plan, to establish, maintain, and monitor Catawba Riparian Buffers or other riparian areas until Items B (1) and (2) of Section X have been satisfied. B. Within 30 calendar days after completing the establishment of the buffer mitigation areas, the Sponsor will submit written notification to DWR documenting that all buffer mitigation activities have been completed. Failure to submit written notification within 30 days may result in a modified credit release schedule or a delay in the issuance of credit releases. Notification shall include all the following: 1. Short summary of activities completed as required per the approved Plan; 2. Figures representing all riparian restoration, riparian enhancement and riparian preservation activities where applicable; 3. Figures representing location of all monitoring plots installed; 4. Detailed planting plan‐ including type of species planted, density of species planted, and any modifications to the planting plan from what was approved in the Plan; 5. Description of how the conservation easement boundaries were marked; and 6. Any major changes to the conservation easement boundary or to the amount of Riparian Buffer Credits from what was proposed in the approved Plan. C. The Sponsor will submit an as‐built plan and report to the DWR for each Bank Parcel after completing the establishment of the buffer mitigation areas. Each As‐Built report will describe any deviation from the approved Plan and will document all the following: 1. Riparian restoration and enhancement planting details and other construction activities that were required in the Plan, confirmation that all boundary markers are installed, 8 confirmation of fence installation, invasive species control, monitoring device locations, vegetation plot locations, and photo point locations. 2. Boundary Survey of the conservation easement area, signed and sealed by a licensed surveyor, including an inventory of the final mitigation areas for Riparian Buffer Credits in both square feet and acres. 3. As‐built map of the buffer mitigation areas showing where riparian activities were performed and any deviations to the Bank Parcel from what was approved in the Plan. 4. Aerial map of the buffer mitigation areas that was included in the approved Plan. Financial Assurance for Monitoring and Maintenance D. After completion of the riparian restoration and mitigation activities on the Bank Parcel, a separate Performance/ Maintenance Bond will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan as described in each approved Plan and As‐Built Report. Each 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 the surety company is still rated no less than an “A‐“ with each annual bond renewals. E. Each performance/maintenance Bond shall be secured each year for a minimum of five years, and until DWR has released all Riparian Buffer 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 initially. F. Once DWR has released 100% of all credits for completion of all Bank Parcel milestones described in Table 3 of Section VIII, the Bank Sponsor will be released from its performance obligations under the performance bond required in D and E in this section. G. To comply with this section, DWR must be the Obligee on all performance bonds. Monitoring and Maintenance Reports H. The Sponsor shall monitor each Bank Parcel as described in the Plan 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 for each Bank Parcel. I. 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 trees or four (4) native hardwood tree and shrub species must be planted. No one species shall be greater than 50% of the planted stems. A list of species for planting will be detailed in the Buffer Mitigation Plan for approval. Native hardwood tree volunteer species may be included to meet performance standards as determined by the DWR. 9 J. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height and shall apply, on the Bank Parcels, to the minimum height that a planted tree or shrub shall be at initial planting. Volunteer stems that are less than 10 centimeters shall not be quantified and included in the annual vegetation data included with the monitoring reports. K. 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 diffused flow, managing invasive species, and pest control will be included in the Buffer Mitigation Plan. L. Monitoring Reports for Riparian Buffer Credit: Reporting criteria of the vegetation 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 Buffer Mitigation Plan. 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 for each Bank Parcel under this instrument. Vegetation data shall not be collected prior to late August of each year. This report will describe the conditions of the Bank Parcel, including an evaluation of the performance standards of the vegetation contained within the approved Buffer Mitigation Plan. Reports shall contain the following: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 2. A detailed narrative with supporting photos summarizing the condition of the Bank Parcel along with any maintenance or remediation performed that year; and 3. A map, survey, or other figures showing locations of sampling plots, permanent photo points, and location of transects, Etc.; and 4. Monitoring data, including specific vegetation counts and heights showing that the trees or tree and shrub species planted are meeting performance standards and updated photographs; and 5. A copy of the most recent Bank credit/debit lodgers; and 6. Corresponding verification letters from designated local governments upon request; and 7. Corresponding Mitigation Transfer Certificates upon request; and 8. Proof of performance bond renewal to cover the next monitoring year (when applicable). Contingency Plans/Remedial Actions M. In the event a Bank Parcel fails to achieve the performance criteria described in this Instrument and in the approved Buffer Mitigation Plan, the Bank Sponsor shall develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcels and the Bank. Depending on the degree of remedial actions required, the DWR may modify the monitoring period. VII. CALCULATION OF CREDITS Riparian Buffer Credits 10 A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR, see reference #5, including the most recent Project Credit Table Template (see Appendix C) provided online. B. Riparian buffer restoration, enhancement and preservation on the Bank Parcels, as described in 15A NCAC 02B .0295 (n) and (o) and defined in 15A NCAC 02B .0295 (b) may be used for Riparian Buffer Credit. C. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. This space left blank intentionally, do not add text to this space. 11 VIII. CREDIT RELEASE SCHEDULE A. In general, upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the Riparian Buffer Credits associated with the Bank Parcels will become available for sale to a third party in accordance with the Credit Release Schedule in Table 3.0 below: Table 3.0 ‐ Credit Release Schedule for Riparian Buffer Credits Task Project Milestone % Credit Available for Sale (Restoration and Preservation) % Credit Release (Cattle Exclusion) 1 Instrument and Buffer Mitigation Plan Approved by DWR, Draft Stream Mitigation Plan Approved by the IRT, Conservation Easement Recorded*, and Financial Assurance Posted 20 No cattle exclusion credits released 2 All Riparian Earthwork & Mitigation Activities, Planting and Installation of Monitoring Devices completed, easement boundaries adequately marked, all applicable permits obtained, stream mitigation activities completed & a site visit performed by DWR 20 40 3 Monitoring Financial Assurance Posted and Approval of As‐Built Report 10 10 4 Monitoring Report #1: Approved by the DWR** & financial assurance renewed 10 10 5 Monitoring Report #2: Approved by the DWR** & financial assurance renewed 10 10 6 Monitoring Report #3: Approved by the DWR** & financial assurance renewed 10 10 7 Item B (I) of Section X in this Instrument has been completed and approved by DWR 5 5 No remaining credits will be released until Task 7 has been satisfied, assigning the conversation easement to an approved land trust or long‐term steward. 8 Monitoring Report #4: Approved by the DWR** & financial assurance renewed 5 5 9 Monitoring Report #5: Approved by the DWR** and final site visit by DWR has been conducted 10 10 Total 100% 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 Buffer Mitigation Plan B. DWR may modify Credit Release Schedules 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. 12 C. The Sponsor must initiate implementation of the approved Plan for the sites under this Instrument in concurrence with all stream mitigation activities proposed in the approved Stream Mitigation Plan referenced in Item D of Section IV of this Instrument. D. Any major deviations to the Bank Parcel that were not authorized in writing by DWR prior to implementation may affect the amount of riparian buffer credits that will be generated by the Bank Parcel IX. PROCEDURE FOR DEBITING AND CREDITING Credit Ledgers A. The Bank Sponsor shall maintain one credit ledger for each mitigation type for each Bank Parcel under this Instrument: Credit ledgers shall provide the accounting for Riparian Buffer Credits in square feet 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 B of this Instrument or any updated versions to these templates as provided by DWR. Credit Processing C. Riparian Buffer Credits generated on these Bank Parcels will be used to provide mitigation for authorized buffer impacts along the mainstem below Lake James and along mainstem lakes from and including Lake James to the North Carolina and South Carolina border in the Catawba River Basin according to 15A NCAC 02B .0614. D. The Bank Sponsor shall obtain verification of buffer mitigation required from the delegated local government in the Catawba River Basin or DWR prior to debiting Riparian Buffer Credits from the Bank Parcel. E. 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 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 F. All credit sales will include a Mitigation Credit Transfer Certificate (“Certificate") that is required to be provided to the buyer of Riparian Buffer, that will include, at a minimum, the following information; 13 1. Bank Details: (1) Sponsor Name, (2) Bank Parcel name as it appears in this Instrument and, (3) DWR project number for the Plan as it appears in Table 1.0. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, and (3) the 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 and project number as it appears on DWR or local government permits and/or certifications, (2) 12‐Digit HUC, (3) river basin, (4) buffer protection rule applicable to the project with impacts, (5 – when applicable) designated local government requiring Riparian Butter Credits and/or (6) DWR correspondence with project number requiring Riparian Buffer Credits. G. If the DWR determines 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. X. BANK PARCEL CLOSURE A. Bank Parcel Closure for each Bank Parcel under this Instrument shall be identified as the event when the Sponsor is relieved of all its responsibilities to the Bank Parcel and there are no Riparian Buffer Credits left to sell. B. Bank Parcel Closure shall commence only after all 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. XI. 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, or 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, including the USACE if it is applicable to the amendment. 14 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 in accordance with 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 in accordance with 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 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. Buffer Mitigation Plan review and approval of items listed in Section V of this Instrument, 4. As‐Built report review and approval of items listed in Section VI of this Instrument, 5. Monitoring Report review and approval of items listen in Section VI of this Instrument, 6. Credit Ledger review and approval of items listen in Section IX of this Instrument, 7. Certificate review of items listed in Section IX of this Instrument and cross analysis to credit ledgers and, 8. 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 this Instrument: This Instrument will become valid on the date of the last party’s signature. H. Specific Language of this 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. 15 K. Notices: All Notices and other communication 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 email with a delivery receipt requested, 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 Bank Sponsor: 1430 South Mint Street, Suite 104 Charlotte, NC 28203 Attn: John Hutton jhutton@wildlandseng.com If to DWR: NC Division of Water Resources – 401 & Buffer Permitting Branch Attn: Nutrient Offset and Buffer Banking Coordinator 1617 Mail Service Center Raleigh, NC 27699‐1617 16 H. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. Wildlands Holdings III, LLC By: John Hutton (Print) (Signature) Title: Vice President of Wildlands Engineering, Member of Wildlands Holdings III, LLC Date: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY‐DIVISION OF WATER RESOURCES By: (Print) (Signature) Title: Date: Sale/ Release DatePurchaser or % Credit Release Project NameGov't RequiringSquare Feet Acres Square Feet Acres Square Feet AcresTask 1 Credit Release (XX%)‐ ‐ ‐ ‐ NCDWRTotals‐ ‐ ‐ ‐ ‐ ‐ Credits Released/Available to BankCredits Debited/Sold From BankBuffer Credit BalanceDouble Rock and Firestone Buffer Umbrella Mitigation Banking Instrument (UMBI): Catawba River Basin HUC 03050101Buffer Restoration Credit LedgerDate Last Updated: DWR Project #: Attachment B Table 1. [INSERT PROJECT NAME], [INSERT PROJECT NUMBER], Project CreditsProject AreaN Credit Conversion Ratio (ft2/pound)P Credit Conversion Ratio (ft2/pound)Credit Type LocationSubject? (enter NO if ephemeral or ditch 1)Feature Type Mitigation ActivityMin‐Max Buffer Width (ft)Feature NameTotal Area (ft2)Total (Creditable) Area of Buffer Mitigation (ft2)Initial Credit Ratio (x:1)% Full Credit Final Credit Ratio (x:1) Convertible to Riparian Buffer? Riparian Buffer Credits Convertible to Nutrient Offset? Delivered Nutrient Offset: N (lbs) Delivered Nutrient Offset: P (lbs) —————————————————————————————————————————————————————————Totals (ft2):000.0000.000 0.000Total Buffer (ft2):00Total Nutrient Offset (ft2):0N/ATotal Ephemeral Area (ft2) for Credit:00Total Eligible Ephemeral Area (ft2):0#DIV/0!Ephemeral Reaches as % TABMEnter Preservation Credits BelowTotal Eligible for Preservation (ft2):00.0%Preservation as % TABMCredit Type Location Subject? Feature Type Mitigation ActivityMin‐Max Buffer Width (ft)Feature Name Total Area (sf) Total (Creditable) Area for Buffer Mitigation (ft2)Initial Credit Ratio (x:1)% Full Credit Final Credit Ratio (x:1) Riparian Buffer Credits BufferRural Yes I / P0‐10010 100%—BufferRuralYes Ephemeral0‐10010 100%—Buffer—Buffer—Buffer—Preservation Area Subtotals (ft2):00Square Feet Credits00.00000.00000.00000.000Square Feet CreditsNitrogen:0.000Phosphorus:0.0000TOTAL AREA OF BUFFER MITIGATION (TABM)TOTAL NUTRIENT OFFSET MITIGATIONMitigation TotalsNutrient Offset:Preservation:Total Riparian Buffer:Neuse 03020201 ‐ Outside Falls Lake19.16394N/ARestoration:Enhancement:Mitigation Totals1. The Randleman Lake buffer rules allow some ditches to be classified as subject according to 15A NCAC 02B .0250 (5)(a).last updated 08/03/2020Attachment C