HomeMy WebLinkAbout20230163 Ver 2_SUBMITTAL - Draft MBI - Brooks Swamp - 081123_20230811BROOKS SWAMP
Mitigation Banking Instrument
HUC: 03020201
Neuse River, below Falls Lake Dam
�RESTORECOLOGY
RESTORECOLOGY NEUSE, LLC
Version 1
AUGUST 11, 2023
AGREEMENT TO ESTABLISH THE BROOKS SWAMP MITIGATION
BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR NUTRIENT
OFFSET AND RIPARIAN BUFFER MITIGATION CREDITS PURSUANT TO
THE NEUSE RIVER BASIN NUTRIENT STRATEGY
I. Preamble
IL Location and Geographic Service Area
III. Authorities
IV. Establishment of Bank Parcels
V. Pre -Construction Documentation
VI. Post -Construction Documentation
VII. Calculation of Credits
VIII. Credit Release Schedule
IX. Procedure for Debiting and Crediting
X. Bank Parcel Closure
XI. General Provisions
Attachments
A — Division of Water Resources Authority Document
B — Ledger Templates
C — Project Credit Table (Example)
References
1. Nutrient Offset Credit Trading Rule:
http://reports.oah.state.nc.us/ncac/title%2015a%20-
%20environmental%20quality/ chapter%2002%20-
%20environmental%20management/subchapter%20b/15a%20ncac%2002b%20.0703.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:/ /www.deq.nc.gov/water-quality/surface-water-protection/401/buffer-clarification-
memos/diffuse-flow-buffer-mitigation-sites-buffer-clarification/download
5. Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset
Mitigation Credits (November 2019):
https://edocs.deq.nc.gov/WaterResources/DocView.aspx?dbid=0&id=2582459
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 1 August 2023
6. NCDWR — Methodology and Calculations for Nutrient Reduction on the Bank Parcel:
https: / /files.nc.gov/ncdeq /Water%20Qualiiy/Planning/NPU/Nutrient%20Offset%20Rule
/Ag-Buffer-Credit.pdf
Preamble
This Mitigation Bank Instrument (Instrument) regarding the entitlement, construction, and maintenance of
the Brooks Swamp Bank Parcel (Bank Parcel), further described in Section II, to provide Neuse Riparian
Buffer mitigation credits (Riparian Buffer Credits) and Neuse Nutrient Strategy nutrient load reduction
credits (Nutrient Offset Credits) is made and entered into by and among RestorEcology Neuse, LLC acting as
the Bank Sponsor (Sponsor) and the North Carolina Department of Environmental Quality — Division of
Water Resources (DWR). This Instrument is prepared in accordance with 15A NCAC 02B .0703 and the
Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on April 1, 2020 and November
15 2015, respectively (Reference #1 and #2). The purpose of the Bank Parcel is:
A. To restore, enhance, and preserve riparian vegetation along streams with the intent to
improve water quality, reduce nutrient loading, attenuate flooding, and expand habitat for wildlife
along tributaries to Brooks Swamp in the Neuse River Basin.
B. To convert agricultural land uses within riparian areas adjacent to perennial and intermittent
streams into a diverse hardwood forest, with the intent to reduce nutrient loadings into the streams
and their receiving waters.
C. To provide Riparian Buffer Credits and Nutrient Offset Credits to third parties in specific
areas within the Neuse River Basin for development (both existing and proposed) or to offset
NPDES-permitted wastewater nutrient sources requiring such mitigation or offset.
IL Location and Geographic Service Area
A. The Geographic Service Area (GSA) is the designated area wherein a Bank Parcel can
reasonably be expected to sell Riparian Buffer Credits and/or Nutrient Offset Credits for impacts
from development activities.
B. The GSA for this Bank Parcel is limited to the United States Geological Survey (USGS) 8-
digit Hydrologic Unit Code (HUC) 03020201 of the Neuse River Basin, excluding the Falls Lake
Watershed.
C. Sale or transfer of Riparian Buffer Credits shall be limited to the 8-dig1t HUC 03020201 in
the Neuse River Basin, excluding the Falls Lake Watershed, unless otherwise authorized by the DWR
or delegated local government in accordance with 15A NCAC 02B .0295.
D. Sale or transfer of Nutrient Offset Credits shall be limited to 8-digit HUC 03020201 in the
Neuse River Basin, excluding the Falls Lake Watershed in accordance with 15A NCAC 02B .0703,
unless otherwise authorized by the DWR in accordance with Session Law (S.L). 2019-86.
E. The following table provides details of the Bank Parcel proposed under this Instrument,
which is within the GSA.
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 2 August 2023
Table 1.0 — Bank Parcel Details
Bank Parcel
County
Watershed
DWR ID
Project
Named
Primary
Location
Receiving
Land Use
Stream
Brooks
Wayne
Neuse —
20230163
35.2487418°N
Brooks
Agriculture
Swamp
03020201,
78.0413133°W
Swamp
Excluding
Falls Lake
Watershed
III. Authorities
A. The Bank Parcel will be used to provide Riparian Buffer Credit and/or 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 River Basin Nutrient Strategy.
C. The selling of credits generated by the Bank Parcel approved under this Instrument shall be
consistent with approved State statutes and rules for the Neuse River Basin Nutrient Strategy.
D. Buffer mitigation and nutrient reduction 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 River Basin
Nutrient Strategy that are in place at the time a complete BPDP is submitted to DWR.
IV. Establishment of Bank Parcels
A. In accordance with 15A NCAC 02B .0295 and 15A NCAC 02B .0703, 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 (Preservation, Enhancement, 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 Parcel:
Table 2.0 — Site Viability Letter Details
Bank Parcel
DWR On -Site
Evaluation
Viability Letter
Received
Viability Letter
Expiration Date
Brooks Swamp
March 22, 2023
June 27, 2023
June 27, 2025
B. A valid Site Viability Letter is required prior to submittal of each BPDP. The Site Viability
Letter will either expire on the date listed in the table above or upon submittal of an 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 buffer mitigation and
nutrient offset purposes, or the sale or transfer of any associated credits. The contents of the BPDP
are provided in Section V.
D. BPDPs submitted under this instrument will be placed on public notice and made available
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 3 August 2023
for public commenting for 15 calendar days.
E. In general, Riparian Buffer Credit may be achieved on this Bank Parcel through restoration
of DWR riparian buffers as they are defined in 15A NCAC 02B. 0714, 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 viable
streams and at least 30 feet from tops of banks along viable ditches when measuring perpendicular
and landward from features. 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 of features to generate Riparian Buffer Credit is provided in the Site Viability Letter for the
Bank Parcel and referenced in Table 2.0 of this Instrument.
F. The Bank Parcel is intended to provide Neuse Riparian Buffer Mitigation Credits as follows:
1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC
02B .0295(b) adjacent to viable streams �(n).
2. Remove invasives and supplementally plant native hardwood trees and shrubs on an
Enhancement Site as defined in 15A NCAC 02B .0295(b) adjacent to viable streams �(n).
3. Performing minor bank stabilization and grading where bank stability is
compromised and where erosional rills, sinkholes, or gullies are observed.
4. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295(b) by placing a
conservation easement around riparian areas along streams as allowed per �(o)(5).
5. Diffuse 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 the Bank Parcel may be achieved through restoration of the
riparian areas adjacent to viable streams where agriculture was determined by DWR to be the
predominant land use. Nutrient Offset Credits are only attainable if the width of the restored riparian
areas are at least 50 feet as measured perpendicular and landward from tops of banks along viable
streams. On the Bank Parcel, the width of the riparian restoration area will begin at the top of bank
or the rooted herbaceous vegetation and extend landward a minimum of 50 feet and a maximum of
200 feet on all sides of viable features. A conservation easement will be secured to include at least the
stream centerline for one-sided mitigation and will extend out to a maximum of 200 feet. For two-
sided mitigation, the conservation easement will include the stream channel and extend out to a
maximum of 200 feet from each bank. The viability of features to generate nutrient offset credit is
provided in the Site Viability Letter for the Bank Parcel and referenced in Table 2.0 of this
Instrument.
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 perpetual conservation easement around riparian areas along viable features in
accordance with 15A NCAC 02B .0703(g).
2. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC
02B .0295(b) adjacent to viable streams �(n) where agriculture has been determined by the
DWR to be the predominant land use.
L The total area of riparian restoration activities on the Bank Parcel is expected to be
approximately 11.1 acres.
V. Pre -Construction Documentation
Bank Parcel Development Package
A. Each 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. Each BPDP must describe
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 4 August 2023
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) 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 Parcel.
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 and/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 release of any credits, the Sponsor shall record a permanent conservation easement
for the Bank Parcel at the Wayne 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 credits.
G. The Sponsor shall not grant additional easements, right of ways, or any other property
interest in or to the Bank Parcel, without prior approval from DWR.
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
Year 4 monitoring period. A land trust must be certified under 501(c) (3) of the Internal Revenue
Code.
L 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 BPDP.
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 5 August 2023
Financial Assurances for Bank Development
J. Following approval of the BPDP, 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 the approved BPDP. 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 the 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 BPDP. No bond shall be less than $150,000 to cover
construction costs.
L. Alternatively, in lieu of posting a Performance/Maintenance 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 under the Performance/Maintenance
Bond required in Item J and K of this section:
1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded,
Financial Assurance Posted;
2. All mitigation activities, including Riparian Earthwork, Planting and Installation of
Monitoring Devices completed; easement boundaries adequately marked; and all applicable
permits obtained;
3. As -Built Report as described in Section VI has been received by the DWR; aDd
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/Maintenance
Bonds.
VL Post -Construction Documentation
A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this
Instrument and corresponding BPDP, to establish, maintain, and monitor Neuse 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 and
nutrient offset areas, the Sponsor will submit written notification to DWR documenting that all
buffer mitigation and nutrient offset 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:
Short summary of activities completed as required per the approved BPDP;
2. Figures representing all riparian restoration and riparian preservation activities
where applicable;
3. Figures representing location of all monitoring plots installed;
4. Detailed planting plan — including the type of species planted, density of species
planted, and any modifications to the planting plan from what was approved in the BPDP.
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 and/or Nutrient Offset Credits from what was proposed in the
approved BPDP.
C. The Sponsor will submit an as -built plan and report for the Bank Parcel (As -Built) after
completing the establishment of the buffer mitigation and nutrient offset areas. Each As -Built will
be submitted to DWR and will describe any deviation from the approved BPDP and will document
all the following:
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 6 August 2023
1. Riparian restoration and/or preservation planting details and other construction
activities that were required in the BPDP, confirmation that all boundary markers are
installed, 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 areas for Riparian Buffer Credits and Nutrient
Offset Credits in both square feet and acres.
3. As -built map of the buffer mitigation and nutrient offset areas showing where
riparian activities were performed and any deviations to the Bank Parcel from what was
approved in the BPDP.
4. Aerial map of the Bank Parcel showing the proposed areas for Nutrient Offset
Credits and Riparian Buffer Credits that were included in the approved BPDP.
Financial Assurance for Bank Parcel Monitoring and Maintenance
D. After completion of the riparian activities and construction 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 the approved BPDP and As -Built
Report for the Bank Parcel. The Performance/Maintenance 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 renewal.
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 and Nutrient Offset Credits to the
Bank Sponsor. Upon DWR approval, the bond amount 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 5 of Section VIII or in the corresponding BPDP, the Bank Sponsor will be
released from its performance obligations under the bond required in D and E in this section.
G. To comply with this section, DWR must be the Obligee on all Performance/Maintenance
Bonds.
Monitoring and Maintenance Reports
H. 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 for each Bank Parcel.
L 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 BPDP for approval. Native hardwood tree volunteer species may be
included to meet performance standards as determined by the DWR.
J. A " stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in
height and shall apply, on the Bank Parcel, 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
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 7 August 2023
maintained for five years. Bank Parcel maintenance measures, such as ensuring diffused flow,
managing invasive species, and pest control will be included in the BPDP.
L. Monitoring Reports for Riparian Buffer Credit & Nutrient Offset 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 each BPDP. The Sponsor shall submit to the DWR an
annual monitoring report for the Bank Parcel no later than December 31 of each year for a minimum
of five consecutive years after the first full growing season for the 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 BPDP. Reports shall contain the following:
1. A U.S. Geological Survey map showing the 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 ledgers; and
Corresponding verification letters from designated local governments upon request;
and
7. Corresponding Mitigation Transfer Certificates upon request; and
8. Proof of Performance/Maintenance Bond renewal to cover the next monitoring
year (when applicable).
Contingency Plans/Remedial Actions
M. In the event the Bank Parcel fails to achieve the performance criteria described in this
Instrument and in 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 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) 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 Attachment C) provided
by DWR.
B. Riparian buffer restoration and/or enhancement on the Bank Parcel, as described in 15A
NCAC 02B. 0295(n) and defined in 15A NCAC 02B .0295(b) that is performed on agriculture lands
within the Bank Parcel maybe used for either Riparian Buffer Credit or Nutrient Offset Credit, but
not both.
C. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295(o)
and defined in 15A NCAC 02B .0295(b), can only be used for Riparian Buffer Credit.
D. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560
buffer credits per one acre.
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 8 August 2023
Nutrient Offset Credits
E. The square footage of Nutrient Offset Credits on the Bank Parcel will be determined by
applying the applicable ratios as provided in 15A NCAC 02B. 0295(m) for a Restoration Site
following the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits
and Nutrient Offset Credits issued by the DWR (see Reference 5) including the most recent Project
Credit Table Template provided by DWR. All riparian areas proposed for Nutrient Offset Credits
must be a minimum of 50 feet from the top of the banks along viable features on land noted in a Site
Viability Letter as having agricultural use.
F. Nutrient Abatement of Restored Riparian Area/Buffers within agricultural land: The
Sponsor and DWR agree to the following:
1. The pounds of nitrogen offset per acre of restored riparian areas/buffers on
agricultural land shall be 2,273.02 pounds per acre or 19.16394 square feet per pound.
G. The Sponsor and DWR agree that the methodology and calculations for determining
nitrogen reductions, associated with restoration of riparian areas on the Bank Parcel as described in
Section IV of this Instrument, 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. For further details on the approved method and calculations for determining nutrient
reductions associated with the riparian restoration on the Bank Parcel refer to the DWR -
Methodology & Calculations for Nutrient Reductions document found in Reference 6.
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 Riparian Buffer Credits and Nutrient Offset Credits associated with
the Bank Parcel will become available for sale to a third party in accordance with a Credit Release
Schedule similar to that which is provided in Table 3.0 below:
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 9 August 2023
Table 3.0 — Credit Release Schedule for Riparian Buffer Credits and Nutrient Offset Credits
Task
Project Milestone
% Credit
Available
for Sale
1
Instrument and BPDP Approved by DWR, Conservation Easement Recorded',
and Financial Assurance Posted
20%
2
All mitigation activities including Riparian Earthwork, Planting and Installation of
Monitoring Devices Completed, easement boundaries adequately marked, all
applicable permits obtained, and site visit performed by DWR
20%
3
Monitoring Financial Assurance Posted and Approval of As -Built Report
10%
4
Monitoring Report #1: Approved by the DWR2 & Financial Assurance Renewed
10%
5
Monitoring Report #2: Approved by the DWR2 & Financial Assurance Renewed
10%
6
Monitoring Report #3: Approved by the DWR2 & Financial Assurance Renewed
10%
7
Item B(I) of Section X in this Instrument has been completed and approved by
DWR (Assignment of easement to approved land trust or long-term steward
5%
Nomma.m.ing credits mill be released until Task 7has been satisfied
8
Monitoring Report #4: Approved by the DWR2 & Financial Assurance Renewed
5%
9
Monitoring Report #5: Approved by the DWR2 and final site visit by DWR has
been conducted
10%
Total
100%
For specification, please see Section V of this Instrument.
2DWR approval provided upon a determination that the site is meeting performance standards contained within the approved
BPDP.
B. DWR may modify Credit Release Schedules based on the information submitted or the
order in which required information is received. DWR will notify Sponsor of any modification to the
Credit Release Schedule.
C. Any major deviations to the Bank Parcel that are not authorized in writing by DWR prior to
implementation may affect the amount of Riparian Buffer Credits and Nutrient Offset Credits that
will be generated by the Bank Parcel.
IX. Procedure for Debiting and Crediting
Credit Ledgers
A. The Sponsor shall maintain one credit ledger for each mitigation type for the Bank Parcel
under this Instrument unless otherwise instructed by DWR in the approved BPDP. Credit ledgers
shall provide the accounting for Riparian Buffer Credits in square feet and acres and Nutrient Offset
Credits in pounds and square feet.
B. Each credit ledger shall be submitted on a separate 81/2 in. x 11 in. 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. Credits must be calculated for the Bank Parcel using the most recent Project Credit Table
template online (see Attachment C for an example) which is referenced in the guidance provided in
the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter
issued by the DWR (see Reference 5).
D. Riparian Buffer Credits generated on the Bank Parcel will be used to provide mitigation for
authorized buffer impacts within the 03020201 HUC of the Neuse River Basin according to 15A
NCAC 02B .0295(f) and (g), excluding the Falls Lake Watershed.
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 10 August 2023
E. Nutrient Offset Credits generated on the Bank Parcel will be used to offset the nitrogen
nutrient load in the 03020201 HUC of the Neuse River Basin, excluding the Falls Lake Watershed, in
accordance with 15A NCAC 02B .0703.
F. Available Riparian Buffer Credits (credits that have been released by DWR but not sold by
the Sponsor) that are generated from riparian restoration on agricultural land 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 into 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.
G. 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 ft from top -of -bank of viable
features 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.
H. Any Credit conversions must be calculated using the guidance provided in the Clarified
Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter issued by the
DWR (See Reference 5).
L The Sponsor shall obtain verification of buffer mitigation required from the delegated local
government in the Neuse River Basin or from DWR prior to debiting Riparian Buffer Credits from
the Bank Parcel.
J. The Sponsor shall obtain written verification of nutrient offset need from a designated local
government in 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.
K. All credit and debit transactions for the 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
L. 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 Table 1.0
and, (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, and (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) 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-dig1t HUC, (3) river basin (4)
nutrient strategy applicable to the project with impacts, (5 — when applicable) designated
local government requiring Nutrient Offset Credits, and/ or (6) DWR or delegated local
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 11 August 2023
government requiring Riparian Buffer Credits for this project and (7) credit type and amount
required for the project.
M. If 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 Instrument, the sale/transfer of credits will immediately cease,
and DWR, in consultation with the Sponsor, will determine what remedial actions are necessary.
X. Bank Parcel Closure
A. Bank Parcel Closure for the 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 or Nutrient Offset Credits left to sell.
B. Bank Parcel Closure shall commence only after all following events have occurred;
1. Transfer or assignment of 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.
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 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. BPDP 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,
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 12 August 2023
5. Monitoring Report review and approval of items listen in Section VI of this
Instrument,
Credit Ledger review and approval of items listen in Section IX of this Instrument,
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.
L 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 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: RestorEcology Neuse, LLC
PO Box 5842
Cary, NC 27512
Attn: Daniel Ramsay
dramsay@restorecology.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
L. This agreement shall be construed under the laws of the State of North Carolina.
RESTORECOLOGY NEUSE, LLC
By: Daniel B. Ramsay (Print)
(Signature)
Title: Owner
Date:
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 13 August 2023
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY — DIVISION OF WATER
RESOURCES
By: (Print)
(Signature)
Title:
Date:
Brooks Swamp MBI
Neuse River HUC #03020201 — Excluding Falls Lake 14 August 2023
Nutrient Offset Program & Buffer Mitigation Program I Updated
Authorities for UMBI/MBI 03/26/2013
Attachment A
All Basins.
General Statutes:
G.S. § 143-214.1 Water; water quality standards and classifications; duties of Commission
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. §143-215.3(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 Basinwide Water Quality Management Plans
G.S. § 143B-282 Environmental Management Commission — creation; powers and duties
Session Laws
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 .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
15A NCAC 02B .0301 Stream Classifications
Neuse River Basin Buffer and Neuse Nutrient Strategy
Session Laws
S.L. 2011-394
S.L. 1998-221 (Part 1)
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 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
15A NCAC 02B .0242 Mitigation Program for Protection and Maintenance of Riparian Buffers
Neuse River Basin Buffer and Falls Lake Nutrient Strategy
General Statutes and Session Laws:
G.S. §143-214.5 Water Supply Watershed Protection
S.L. 2012-187
S.L. 2011-394
S.L. 2009-486
S.L. 1998-221 (Part I)
Administrative Rules:
15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers
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
15A NCAC 02B .0275 Purpose and Scope
15A NCAC 02B .0276 Definitions
15A NCAC 02B .0277 Stormwater Management for New Development
15A NCAC 02B .0278 Stormwater Management for Existing Development
15A NCAC 02B .0279 Wastewater Discharge Requirements
15A NCAC 02B .0280 Agriculture
15A NCAC 02B .0281 Stormwater Requirements for State and Federal Entities
15A NCAC 02B .0282 Options for Offsetting Nutrient Loads
Jordan Buffer and Jordan Water Supply Nutrient Strategy
General Statutes and Session Laws:
G.S. §143-214.5 Water Supply Watershed Protection)
S.L. 2012-201
S.L. 2012-187
S.L. 2009-216
S.L. 2009-484
S.L. 2006-259 (Section 31(a))
S.L. 2005-190
S.L. 1999-329 (part of G.S. 143B-282)
Administrative Rules:
15A NCAC 2B .0262 Purpose and Scope
15A NCAC 2B .0263 Definitions
15A NCAC 2B .0264 Agriculture
15A NCAC 2B .0265 Stormwater Management for New Development
15A NCAC 2B .0267 Jordan Water Supply Nutrient Strategy
15A NCAC 2B .0268 Mitigation for Riparian Buffers
15A NCAC 2B .0270 Wastewater Discharge Requirements
15A NCAC 2B .0271 Stormwater Requirements for State and Federal Entities
15A NCAC 2B .0272 Fertilizer Management
15A NCAC 2B .0273 Options for Offsetting Nutrient Loads
Nutrient Offset Program & Buffer Mitigation Program I Updated
Authorities for UMBI/MBI 03/26/2013
Tar -Pamlico River Basin Buffer and Tar -Pamlico Nutrient Strategy
Session Laws:
S.L. 2011-394
S.L. 1999-329 (part of G.S. 143B-282)
Administrative Rules:
15A NCAC 2B .0229 Nutrient Offset Payments for Non -Tar -Pamlico Basin Association Members
15A NCAC 2B .0255 Agricultural Nutrient Loading Goals
15A NCAC 2B .0256 Agricultural Nutrient Control Strategy
15A NCAC 2B .0257 Nutrient Management
15A NCAC 2B .0258 Basinwide Stormwater Requirements
15A NCAC 2B .0259 Protection and Maintenance of Existing Riparian Buffers
15A NCAC 2B .0260 Mitigation Program for Protection and Maintenance of Existing Riparian Buffers
15A NCAC 2B .0261 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers
ta
OD
ol
N
J
c: =o
aJ N
E U
� o
Y Z
c
ro 'O
m N
C �
O
ro *'
00 >�
Y
Q
C J
(O N
n
� LL
o OD
Y �
O
o 0
m U
X
U �
J rl
J O
N
n O
O N
OJ O
Z M
O
T U
o Z)
o =
U Q
W
O E
+ M
3
Ln
O
O
m
On
y •�
oCT
aaj
l7 Of
ai
U
c
v
m
U
a
a,
U
C
O aj
aJ
i
O O
Z
a Z
O
LL
N
_0
U
a
\Y
a,
O c:
m
ai
p
1 ai
-O ou
O
a
=3 y
O Z
U
LL
•�
v
a'
a
\Y
a
v �
o m
v
v
w
o
a
O O
aJ
y
O Z
U
LL
U
D
2
3
U
aJ
O
a
v
U
o aj
O aj
aJ
aJ
w
L
U
7
LL
a)
\ p
a a)
aj
a)
a)
w
L
qA
C 4-
a)a)
C
L
L U
N L
C t�
tw
C CO
U �
J O
J N
M
O a)
M +,
N M
00
N O
U a)
O a)
a a)
U N
L
d
� U
C
co �
m +�
>� O
on
•L
o
(7 m
a)
U
N
C
co
�
L
�
m
U
Q
T
16
L
U
L
co a)
a)
LL
�
N
m
N
O
a)
(/7
�
U
Q
�
m
a�
O O
a)
V) L
++ Li-Ll
a)
U
cn
O
N
L
co
U
Q
V
_0 m
a)
U
N
LL
Q)
L
a�
L) i
U
2
U
a)
'O
a
a�
U
o N
O �
a)
L
V
t
U
L
7
d
\ 0
� N
L)i �
MIIIIIIIIIIIIIIIIIII
NIIIIIIIIIIIIIIIIIII
NIIIIIIIIIIIIIIIIIII
NIIIIIIIIIIIIIIIIIII
MIIIIIIIIIIIIIIIIIII
EIIIIIIIIIIIIIIIIIII
HIIIIIIIIIIIIIIIIIII
EIIIIIIIIIIIIIIIIIII
IIIIIIIIII
IIIIIIIIII
4
F
Z
0
d 0
V 0
0 0
0 0
0 0
0
0
0
Z
O_
~
O
O
V O
O
O
O
5
O
Qd
a
Q
o
o o
o~
d o
K
u
7
O
F
Z
� �
d
0 O
a
Ws="=omzs"
a
a
w
m
�
a
5
Z