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Home My WebLink About20220293 Ver 2_Compliance Action Plan_BrittandHalesROY COOPER Governor ELIZABETH S. BISER Secretary RICHAM E. ROGERS, JR. Director \f Qunri Na j NORTH CAROLINA Environmental Quality DATE: April 22, 2024 TO: FROM: THROUGH: Michael Beinenson Eco Terra, LLC Katie Merritt Nutrient Offset & Buffer Banking Coordinator Stephanie Goss Supervisor — 401 & Buffer Permitting Branch SUBJECT: Compliance Action Plan Agreement between DWR and Eco Terra, LLC to address non-compliance with the Joshua Creek Mitigation Banking Instrument and corresponding Bank Parcel Development Package and the Britt & Hales Mitigation Banking Instrument and corresponding Bank Parcel Development Package COMPLIANCE ACTION PLAN FOR ECO TERRA, LLC In 2023, Eco Terra, LLC (Eco Terra) submitted two draft Mitigation Banking Instruments (MBI) for two proposed bank parcels known as the Britt & Hales Mitigation Bank Parcel (Britt & Hales) and the Joshua Creek Mitigation Bank Parcel (Joshua Creek), identifying as the "Bank Sponsor" to the Division of Water Resources (DWR) for their review and approval. Additionally, the DWR received two separate draft Bank Parcel Development Packages (Plans) for Britt & Hales and Joshua Creek from Eco Terra. Prior to receiving approvals for the two MBI documents and the two Plans, the DWR discovered that Eco Terra had implemented all mitigation activities on the two bank parcels, which included planting trees, installing easement boundaries, performing culvert maintenance, installing monitoring plots and applying seeding. All activities were described in detail within the draft Plans, which had yet to be approved in writing by the DWR but had been placed on Public Notice and made available for public commenting. The public notice, which was agreed to by Eco Terra in the two draft MBI documents, had not concluded at the time Eco Terra had performed these activities. On May 4, 2023, Katie Merritt with the DWR, notified Eco Terra via email, of non-compliance. This non-compliance was primarily associated with planting and constructing two nutrient offset and buffer mitigation projects specifically to generate nutrient offset credits and/or riparian buffer credits, without first having approvals of a Mitigation Banking Instrument (per 15A NCAC 02B .0703 and North Carolina Department of Environmental Quality! Division of Water Resources 4NORT�HCv 512 North Salisbury Street 1 1611 Mail Service Center I Raleigh, North Carolina 27699-1611 NoarrionaouNa a 919.707.9000 Department ofEnvlronmantal Ouali� Compliance Action Plan Eco Terra, LLC April 22, 2024 15A NCAC 02B .0295) or approved Plan. Copies of that correspondence for both projects are attached as Exhibit A. DWR staff has developed this Compliance Action Plan to provide a course of action for Eco Terra to resolve the non-compliance noted in the correspondence dated May 4, 2023. The CAP is provided in two parts, Part 1 and Part II, as described below and is to begin on the date signed by the last party on page 3. Part I: Site Inspection Plan - Adjusted timelines for inspecting future bank site projects submitted to DWR by Eco Terra for purposes of generating nutrient offset and buffer mitigation credits. The Site Inspection Plan will expire within one (1) calendar year of the last parry's signature. Justification: Item A of Section V of the Joshua Creek MBI and Britt and Hales MBI reads as follows, "The Bank Parcel Development Package 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". Item C of Section V reads, `Any restoration activities or proposed construction within streams, 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. A. Extend timeframes for Site Viability Requests by 2-3 months. Completed in 2023 a. DWR staff postponed site visits for five (5) pre -scheduled site viability request evaluations by 2-3 months in the Summer of 2023. Thus, delaying Eco Terra from receiving a Site Viability Letter for potential banks by at least 5-8 months from receipt of request. B. Require two separate, self -evaluating site inspections for proposed bank sites prior to issuing approvals. a. Within 5 calendar days from when DWR posts a Final Draft Plan on public notice for public commenting, Eco Terra is to submit sufficient, time -stamped photos documenting current land -use conditions within the riparian areas adjacent to all water conveyance features proposed in the Plan. Photos must be labeled, include the timestamp and a description of where the photo was taken. A supporting map/figure that shows where the Photo Point was taken must also be included. Photos must adequately represent the width of the riparian areas being proposed in the Final Draft Plan (0-200' where applicable). b. Prior to issuing a Plan Approval letter, which usually occurs within 7 business days after the public comment period has ended, Eco Terra will be required to submit more timestamped photos at the same locations as where the photos were taken for "Item a" above and submitted in the same format. Photos should be documenting the existing land -use conditions and easily compared to the photos that were taken for Item a. If DWR can confirm that no site work, planting, or other activities related to site preparation and riparian restoration have begun, DWR will issue a Plan Approval letter. C. The public commenting period for Final Draft Plans and Mitigation Banking Instruments is 15 calendar days for providers. However, Eco Terra will be held to an extended public comment period of 20 calendar days. Page 2 of 6 Compliance Action Plan Eco Terra, LLC April 22, 2024 Part II: Modified Credit Release Schedule - Table 3.0 within the Britt & Hales MBI and the Joshua Creek MBI will be modified from what was originally agreed upon between DWR and Eco Terra Justification: Item A of Section VIII of the Joshua Creek MBI and Britt and Hales MBI reads as follows, `DWR may modem Credit Release Schedules based on the information submitted or the order in which required information is received. DWR will notes the Sponsor of any modification to the credit release schedule ". A. Extend the 9 required Tasks to 10 required Tasks. a. No credits are released for the approval of a Year 1 Monitoring Report b. The sites will be monitored for 6 years instead of 5, depending on compliance status. B. The percentage of credits being released are adjusted based on the following new credit release schedule: Page 3 of 6 Compliance Action Plan Eco Terra, LLC April 22, 2024 Modified Table 3.0 Credit Release Schedule for the Britt & Hales Mitigation Banking Instrument & the Joshua Creek Mitigation Banking Instrument with Eco Terra, LLC Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits for Britt & Hales Bank Parcel & Joshua Creek Bank Parcel % Credit Available DWR Comments & Justification for Task Project Milestone for Sale changes to credit release Instrument and BPDP Approved by DWR, Conservation Easement 1 Recorded*, and Financial Assurance Posted 20 Task 2 & Task 3, which are both All mitigation activities, including Riparian Earthwork, Planting and Installation affiliated with planting the site of Monitoring Devices Completed, Easement Boundaries adequately marked, according to the approved BPDP & and all applicable permits obtained. A site visit by DWR is required for this MBI that were placed on public notice, 2 task. 10 are proposed at Half the credits from what is typically released for these two Monitoring Financial Assurance Posted and Approval of As -Built tasks. 3 Report 5 Monitoring for credit release delayed by Monitoring Report #1: Approved by the DWR** & financial assurance 1 year to allow DWR to oversee Eco renewed; a site visit by DWR has been conducted Terra's compliance status with other Fall 2023 projects (resulting in 1 trial year) 4 0 Rewarding w/ 5% more than the average 10% to encourage Eco Terra to Monitoring Report #2: Approved by the DWR** & financial assurance renewed make good faith effort on CAP through 5 Fall 2024 15 first monitoring report submittal Rewarding w/ 10% more than the average 10% to encourage Eco Terra to Monitoring Report #3: Approved by the DWR** & financial assurance renewed make good faith effort on CAP through 6 Fall 2025 20 first monitoring report submittal Item B (1) of Section X in this Instrument has been completed and F 7 approved by DWR 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 Normal release is 10% for credit Monitoring Report #4: Approved by the DWR** & financial assurance renewed releases not affiliated with a CAP. Fall 2026 EcoTerra will receive the average 8 10 release for monitoring report approval Monitoring Report #5: Approved by the DWR** & financial assurance renewed Adding an option for early closeout to Fall 2027- DWR may consider an early closeout for Task 10 at Task 9 if all be assessed by DWR if earned and if following conditions are met: consistent successful vegetation conditions site site meets expectations. wide (vigor, height, density, diversity), no history of unresolved easement encroachments, no substantial stem mortality or substantial supplemental planting needed during years 1-5, Sponsor is not affiliated with a compliance action plan by DWR for other bank sites (excluding Britt & Hales and Joshua Creek) and Sponsor has managed and maintained the easement boundary and vegetation in a responsible manner according to the expectations in the approved BPDP during years 0-5. A site visit by DWR is required to be 9 performed for a 15% release 5 or 15 Monitoring Report #6: Approved by the DWR** and final site visit by DWR 10 has been performed. No Task 10 if DWR issued 15% for Task 9 10 or -0- Total 100% *For specification, please see Section V in this Instrument **DWR Approval provided upon a determination that the site is meeting performance standards contained within the approved BPDP Note: This credit release schedule is defined as Part II of the Compliance Action Plan (CAP) Page 4 of 6 Compliance Action Plan Eco Terra, LLC April 22, 2024 ECO TERRA, LLC (Print) (Signature) Title: Date: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY - DIVISION OF WATER RESOURCES Stephanie Goss By: (Print) (Signature) Title: 401 & Buffer Permitting Branch Supervisor Date: 4/23/24 Page 5 of 6 Compliance Action Plan Eco Terra, LLC April 22, 2024 EXHIBIT A - DWR CORRESPONDENCE Page 6 of 6 From: Merritt, Katie Sent: Thursday, May 4, 2023 3:43 PM To: michael@ecoterra.com Cc: Jordan Burbage <jordan@ecoterra.com>; Hartshorn, Blake <blake.hartshorn@ncdenr.gov>; Goss, Stephanie <stephanie.goss@ncdenr.gov>; Norton Webster <norton@ecoterra.com> Subject: Notification of Non -Compliance - Britt & Hales MBI/BPDP Good Afternoon Michael, DWR received the attached documentation from McAdams notifying DWR that the Britt & Hales site was fully planted and ready for DWR to assess site conditions for the Task 2 milestone according to the MBI. According to the attached notification letter, Eco Terra planted this site March 30, 2023 & April 1, 2023. The Bank Parcel Development Package (BPDP) was approved on April 21, 2023 and the Mitigation Banking Instrument (MBI) was signed by Eco Terra on March 31, 2023 and DWR on April 21, 2023. Eco Terra did not have an approved Banking Instrument (required under 15A NCAC 02B .0295 and 15A NCAC 02B .0703), nor did they have an approved BPDP for the site (required under 15A NCAC 02B .0295 and 15A NCAC 02B .0703) prior to conducting activities for buffer mitigation and nutrient offset credits. Both rules referenced above clearly state that an approved plan by DWR is required prior to conducting activities for buffer mitigation or nutrient offset credits. Secondly, Eco Terra submitted an MBI and BPDP to DWR that contained inaccurate and falsified information. Eco Terra is in non-compliance with 15A NCAC 02B .0295 Eco Terra is in non-compliance with 15A NCAC 02B .0703 Eco Terra is in non-compliance with the Approved Britt & Hales BPDP - submitted to DWR by Eco Terra on March 29, 2023, public noticed on March 31 and approved by DWR on April 21 Eco Tera is in non-compliance with the Approved Britt & Hales MBI — submitted to DWR by Eco Terra on March 31, 2023, public noticed on March 31 and approved on April 21. At this time, DWR will not be able to proceed with the issuance of credit releases for the proposed buffer mitigation credits and proposed nutrient offset credits until these matters have been discussed. DWR will discuss the non-compliance issues with Eco Terra and DWR management in the near future prior to determining further actions needed. Thank you for your attention to this matter, Katie Katie Merritt Nutrient Offset & Buffer Banking Coordinator 401 & Buffer Permitting Unit North Carolina Department of Environmental Quality Office: 919-707-3637 Work Cell: 919-500-0683 Website: https://deq.nc.gov/about/divisions/water-resources/water-quality_permitting/401-buffer- permitting-branch 512 N. Salisbury Street, Raleigh, NC 27620 1617 Mail Service Center, Raleigh, NC 27699-1617 Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties. From: Merritt, Katie Sent: Thursday, May 4, 2023 3:42 PM To: michael@ecoterra.com Cc: Jordan Burbage <jordan@ecoterra.com>; Hartshorn, Blake <blake.hartshorn@ncdenr.gov>; Goss, Stephanie <stephanie.goss@ncdenr.gov>; Norton Webster <norton@ecoterra.com> Subject: Notification of Non -Compliance - Joshua Creek MBI/BPDP Good Afternoon Jordan, DWR received the attached documentation from McAdams notifying DWR that the Joshua Creek site was fully planted and ready for DWR to assess site conditions for the Task 2 milestone according to the MBI. According to the attached notification letter, Eco Terra planted this site March 27, 2023 & March 28, 2023. The Bank Parcel Development Package (BPDP) was approved on April 21, 2023 and the Mitigation Banking Instrument (MBI) was signed by Eco Terra on March 31, 2023 and DWR on April 21, 2023. Eco Terra did not have an approved Banking Instrument (required under 15A NCAC 02B .0295 and 15A NCAC 02B .0703), nor did they have an approved BPDP for the site (required under 15A NCAC 02B .0295 and 15A NCAC 02B .0703) prior to conducting activities for buffer mitigation and nutrient offset credits. Both rules referenced above clearly state that an approved plan by DWR is required prior to conducting activities for buffer mitigation or nutrient offset credits. Secondly, Eco Terra submitted an MBI and BPDP to DWR that contained inaccurate and falsified information. Eco Terra is in non-compliance with 15A NCAC 02B .0295 Eco Terra is in non-compliance with 15A NCAC 02B .0703 Eco Terra is in non-compliance with the Approved Joshua Creek BPDP - submitted to DWR by Eco Terra on March 30, 2023, public noticed on March 31 and approved by DWR on April 21 Eco Tera is in non-compliance with the Approved Joshua Creek MBI — submitted to DWR by Eco Terra on March 31, 2023, public noticed on March 31 and approved on April 21. At this time, DWR will not be able to proceed with the issuance of credit releases for the proposed buffer mitigation credits and proposed nutrient offset credits until these matters have been discussed. DWR will discuss the non-compliance issues with Eco Terra and DWR management in the near future prior to determining further actions needed. Thank you for your attention to this matter, Katie Katie Merritt Nutrient Offset & Buffer Banking Coordinator 401 & Buffer Permitting Unit North Carolina Department of Environmental Quality Office: 919-707-3637 Work Cell: 919-500-0683 Website: https://deq.nc.gov/about/divisions/water-resources/water-quality_permitting/401-buffer- permitting-branch 512 N. Salisbury Street, Raleigh, NC 27620 1617 Mail Service Center, Raleigh, NC 27699-1617 Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties.