HomeMy WebLinkAboutrevised MBIAGREEMENT 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...............................................................................................................................3
II. LOCATION AND GEOGRAPHIC SERVICE AREA....................................................................... 3
III. AUTHORITIES..........................................................................................................................4
IV. ESTABLISHMENT OF BANK PARCELS..................................................................................... 4
V. PRE -CONSTRUCTION DOCUMENTATION............................................................................... 6
VI. POST -CONSTRUCTION DOCUMENTATION............................................................................ 8
VII. CALCULATION OF CREDITS................................................................................................... 11
Vill. CREDIT RELEASE SCHEDULE................................................................................................. 13
IX. PROCEDURE FOR DEBITING AND CREDITING..................................................................... 14
X. BANK PARCEL CLOSURE....................................................................................................... 15
XI. GENERAL PROVISIONS.......................................................................................................... 16
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%20guality/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%20guality/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/2019-202O/SL2019-86.html
1
4. Buffer Interpretation/Clarification #2008-019 for diffuse flow:
https://www.deg.nc.gov/wafer-quality/surface-wafer-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
6. NCDWR — Methodology and Calculations for Nutrient Reduction on the Bank Parcel:
https://files.nc.gov/ncdeg/Water%20Quality/Planning/NPU/Nutrient%20Offset%20Rule/A -
Buffer-Credit.pdf
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This Mitigation Banking Instrument (Instrument) regarding the establishment, use, operation 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 15A NCAC 02B .0295, which became
effective on April 1, 2020 and November 1, 2015, respectively (References #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 associated
with agricultural practices 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.
II. 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 requiring
such mitigation or offset.
B. The GSA for the Bank Parcel under this instrument 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-digit 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 1.0 provides details of the Bank Parcel proposed under this Instrument.
Table 1.0 — Bank Parcel Details
Bank Parcel
County
8-Digit USGS
Project Location
Named
Primary
Name/DWR
Hydrologic Unit
Receiving
Land Use
Project #
Code
Stream
Brooks
Wayne
Neuse — 03020201,
35.2487418°N
Brooks
Agriculture
Swamp
Excluding Falls Lake
78.0413133°W
Swamp
2023-0163v2
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 Nutrient Management 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 Nutrient Management 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 Nutrient
Management 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 proposed under this Instrument:
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 the BPDP. The Site Viability Letter
will either expire on the date 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 Bank Parcel Development Package ("BPDP") as described in Section V to DWR, then
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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. The BPDP submitted under this instrument will be placed on public notice and made available
for public commenting for 15 calendar days.
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 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 Credits as follows:
1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B
.0295(b) adjacent to streams as allowed per 15A NCAC 02B. 0295(n).
2. Removing invasives and supplementally plant native hardwood trees and shrubs on an
Enhancement Site as defined in 15A NCAC 02B .0295(b) adjacent to streams as allowed per
15A NCAC 02B .0295(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 15A NCAC 02B.
0295(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 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 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 the streams. 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 in accordance with 15A NCAC 02B
.0703 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 streams 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 streams where agriculture has been determined by the DWR to be
the predominant land use.
3. Diffuse 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 Bank Parcel is expected to be
approximately 11.1 acres.
V. PRE -CONSTRUCTION DOCUMENTATION
Bank Parcel Development Package
A. The Brooks Swamp Bank Parcel Development Package (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 will 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) a Project Credit Table (see Attachment C) showing
associated buffer/nutrient offset 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
N.
Sponsor to comply with this requirement will result in a revised or reduced credit release
schedule for the Bank Parcel or a denial of the Bank Parcel to generate Riparian Buffer Credits
and/or Nutrient Offset Credits.
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 & Lone -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.
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.
Financial Assurances for Bank Parcel Development
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
Bank Parcel or site 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/Maintenance 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 and Assigned
according to Item B (1) of Section X in this Instrument has been completed and approved
by DWR, Financial Assurance Posted;
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;
3. As -Built Report as described in Section VI has been received by the 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/Maintenance Bonds.
VI. POST -CONSTRUCTION DOCUMENTATION
As -Built Report
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:
1. Short summary of activities completed as required per the approved BPDP;
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 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 Report) after
completing the establishment of the buffer mitigation and nutrient offset areas. Each As -Built
Report will be submitted to DWR and will describe any deviation from the approved BPDP and
will document all the following:
1. Riparian restoration, riparian enhancement and/or preservation planting details,
confirmation of fence and/or culvert installation or removal if applicable, cattle exclusions
if applicable, confirmation that all boundary markers are installed, invasive species control,
monitoring device locations, vegetation plot locations, photo point locations and any
other construction activities that were required in the BPDP.
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.
The 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.
Once DWR has released 100% of all credits for completion of all Bank Parcel milestones
described in Table 3.0 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.
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 BPDP for approval. Native hardwood tree volunteer
species may be included to meet performance standards as determined by the DWR.
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 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
6. 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).
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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, may be 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.
Nutrient Offset Credits
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 letter 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 agriculture.
Nutrient Offset Credits cannot be achieved through the preservation activities performed on this
Bank Parcel.
G. 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.
H. 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
11
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.
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12
VIII. CREDIT RELEASE SCHEDULE
A. 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
Brooks Swamp Bank Parcel will become available for sale to a third party in accordance with the
Credit Release Schedule provided in Table 3.0 below:
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
25%
Recorded and Assigned', and Financial Assurance Posted
2
All mitigation activities including Riparian Earthwork, Planting and
20%
Installation of Monitoring Devices Completed, easement boundaries
adequately marked, all applicable permits obtained, and site visit
performed by DWR
3
Monitoring Financial Assurance Posted and Approval of As -Built Report
10%
4
Monitoring Report #1: Approved by the DWRZ & Financial Assurance
10%
Renewed
5
Monitoring Report #2: Approved by the DWRZ & Financial Assurance
10%
Renewed
6
Monitoring Report #3: Approved by the DWRZ & Financial Assurance
10%
Renewed
7
Monitoring Report #4: Approved by the DWRZ & Financial Assurance
5%
Renewed
8
Monitoring Report #5: Approved by the DWRZ and final site visit by
10%
DWR has been conducted
Total
100
'For specification, please see Section V of this Instrument.
ZDWR 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.
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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 8 % 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. 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.
D. Nutrient Offset Credits generated on the Bank Parcel will be used to offset nitrogen nutrient
loadings in the 03020201 HUC of the Neuse River Basin, excluding the Falls Lake Watershed, in
accordance with 15A NCAC 02B .0703.
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.
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
stream 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. 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).
H. The Sponsor shall obtain written verification of buffer mitigation required from the delegated
local government in the 03020201 HUC of the Neuse River Basin outside of the Falls Lake
Watershed or from DWR prior to debiting Riparian Buffer Credits from the Bank Parcel.
The Sponsor shall obtain written verification of nutrient offset need from a designated local
government in the 03020201 HUC of the Neuse River Basin outside of the Falls Lake Watershed
or from DWR through an approved NPDES permit for wastewater nutrient sources prior to
debiting Nutrient Offset Credits from the Bank Parcel.
14
J. 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
K. 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.
Permitted Project Details: (1) project name and project number 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 with impacts, (5 — when applicable) designated local
government requiring Nutrient Offset Credits, and/ or (6) DWR or delegated local
government requiring Riparian Buffer Credits for this project and (7) credit type and
amount required for the project.
L. 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.
15
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 maybe 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,
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,
16
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.
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
17
L. This agreement shall be construed under the laws of the State of North Carolina.
RESTORECOLOGY NEUSE, LLC
By: Daniell B. Ramsay (Print)
(Signature)
Title: Owner
Date: 02/01 /2024
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY — DIVISION OF WATER RESOURCES
By:
Title:
Date:
(Print)
(Signature)
18
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