20080229 Ver 2_Mitigation Info_20080325

DE 4
(Version 2.0 March, 2008) Y&TUwDSAN+
AGREEMENT TO ESTABLISH THE FORREST CREEK RIPARIAN BUFFER
MITIGATION BANK
IN ORANGE COUNTY, NORTH CAROLINA
This Riparian Buffer Mitigation Banking Instrument (RBMBI) is made and entered into on
the *day ofd, 2008 by Mid-Atlantic Mitigation, LLC, hereinafter Sponsor, and the
North Carolina Division of Water Quality (NCDWQ).
WHEREAS the purpose of this Agreement is to establish the Forrest Creek Riparian Buffer
Mitigation Bank (Bank) providing compensatory mitigation for unavoidable riparian buffer
impacts separately authorized by Authorizations or Variances to impact Riparian Buffers in
appropriate circumstances (15A NCAC 2B .0200);
WHEREAS the Sponsor currently controls through the purchase and recording of a
permanent conservation easement of certain parcels of land containing approximately 31.5 acres
located in Orange County, North Carolina, described in the Forrest Creek Mitigation Bank
Mitigation Plan (Mitigation Plan) and overall Mitigation Banking Instrument (MBI) in Appendix
A, and as shown on the attached in Figure 2 of the Mitigation Plan.
WHEREAS NCDWQ agrees that the Bank site is a suitable riparian buffer mitigation bank
site, and that implementation of the plans as described in the Mitigation Plan is likely to result in
restored and protected riparian buffers at the Bank site, and has therefore approved the
Mitigation Plan;
THEREFORE, it is mutually agreed between the parties to this Agreement that the following
provisions are adopted and will be implemented upon signature of this RBMBI.
General Provisions
1. The goal of the Bank is to restore, enhance, and preserve stream systems with the adjacent
riparian buffers and their functions and values to compensate in appropriate circumstances for
unavoidable stream impacts authorized by 15A NCAC 2B 0.200 in circumstances deemed
appropriate by NCDWQ.
2. Use of credits from the Bank to offset riparian buffer impacts authorized by 15A NCAC
2B 0.200 Approvals must be in compliance with said Rules.
3. NCDWQ shall make final decisions concerning the amount and type of compensatory
mitigation to be required for authorized riparian buffer impacts, and whether or not the use of
credits from the Bank is appropriate to offset those impacts.
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4. The Bank site is currently a part of a dairy operation. A more detailed description of the
baseline conditions on the site is contained in the Mitigation Plan (Appendix A).
5. The Sponsor will perform work described in the Mitigation Plan, including the restoration
of approximately 658,000 square feet (15.1 acres) of riparian buffer along Forrest Creek and an
unnamed tributary.
6. The Bank Sponsor shall monitor the Bank Site as described in the Mitigation Plan, until
such time as the NCDWQ determines that the success criteria described in Section 10 of the
Mitigation Plan have been met. The monitoring period shall be a minimum of five years.
7. The Sponsor is responsible for assuring the success of the restoration, enhancement and
preservation activities at the Bank Site, and for the overall operation and management of the
Bank.
8. The Sponsor shall provide to NCDWQ the reports annually as described in Section 11 of
the Mitigation Plan.
9. NCDWQ shall review said reports, and may, at any time, after consultation with the
Sponsor, direct the Sponsor to take remedial action at the Bank site. Remedial action required by
NCDWQ shall be designed to achieve the success criteria specified above.
10. The Sponsor shall implement any remedial measures required pursuant to the above.
11. In the event the Sponsor determines that remedial action may be necessary to achieve the
required success criteria, it shall provide notice of such proposed remedial action to NCDWQ.
No remedial actions shall be taken without the concurrence of NCDWQ.
12. NCDWQ will be allowed reasonable access to the Property for the purposes of
inspection of the Property and compliance monitoring of the Mitigation Plan. The Sponsor shall
be notified 48 hours in advance of any NCDWQ accessing the property.
Use of Mitigation Credits
13. The Geographical Service Area ( GSA) is the designated area wherein a bank can
reasonably be expected to provide appropriate compensation for impacts to wetland or other
aquatic resources. The GSA for this Bank shall include the Neuse River Basin Hydrologic Unit
03020201 in North Carolina. Use of credits from the Bank to compensate for impacts beyond
the geographic service area may be considered by NCDWQ.
-TABLE-
Proposed Mitigation Type Square Feet Credits
Riparian Buffer Restoration 658,000 658,000
(Version 2.0 March, 2008)
14. It is anticipated by the parties to this Agreement that use of mitigation credits shall be
"in-kind;" that is, that riparian buffer credits will be used to offset riparian buffer impacts.
15. Riparian Buffer Mitigation - Riparian buffer mitigation credit will be determined
according to the procedures 15A NCAC 2b 0.200. Buffer restoration and buffer enhancement
shall be defined per the Memorandum titled "NCDWQ Buffer Interpretation/Clarification #2008-
17, January 25, 2008".
16. Notwithstanding the above, all decisions concerning the appropriateness of using credits
from the Bank to offset impacts to riparian buffers shall be made by NCDWQ. Any necessary
notice to and consultation with NCDWQ for use of credits shall be through the riparian buffer
impact review process.
17. Riparian Buffer Mitigation -
Fifteen percent (20%) of the Bank's total restoration credits shall be available for sale
immediately upon completion of all of the following:
a. Execution of this RBMBI by the Sponsor and NCDWQ;
b. Approval of the final mitigation plan (already completed);
c. Delivery of the financial assurance described in paragraph 23 of this RBMBI;
d. Recordation of the preservation mechanism described in paragraph 22 of this RBMBI;
Additionally, the Sponsor must complete the initial physical and biological improvements to
the bank site pursuant to the mitigation plan no later than the first full growing season following
initial debiting of the Bank. The Sponsor shall provide a record drawing or as-built survey to
provide a record of the amount and nature of buffer restoration and enhancement completed.
18. Subject to the Sponsor's continued satisfactory completion of all required success criteria
and monitoring, additional buffer mitigation credits will be available for sale by the Sponsor on
the following schedule:
Riparian Buffer Restoration and Enhancement Credit Release:
Table 1-Credit Release Schedule
Task Project Milestone % Credit
Available for
Sale
(Version 2.0 March, 2008)
1 Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants Recorded and 20
2 Mitigation Site Earthwork, Planting and Installation of Monitoring
Devices Completed 20
3 A r val of As-Built Report and Monit rip Bond Purchased 10
4 Submit Monitoring Report #1 to DWQ (meets success criteria) 10
5 Submit Monitoring Report #2 to DWQ (meets success criteria) 10
6 Submit Monitoring Report #3 to DWQ (meets success criteria) 10
7 Submit Monitoring Report #4 to DWQ (meets success criteria) 10
8 Submit Monitoring Report #5 to DWQ (meets success criteria) 10
Total 100%
The above schedule applies only to the extent the Sponsor documents acceptable survival and
growth of planted vegetation as described under the success criteria in the monitoring section of
the Mitigation Plan. The Mitigation Plan shall be amended to specify a vegetation success rate
of 320 trees per acre after five years within the stream buffers for which riparian buffer
mitigation credit is specified. Monitoring of the riparian buffer restoration and enhancement shall
be based on the CVS-EEP Protocol for Recording Vegetation Level 1-2 Plot Sampling Only
Version 4.0., as indicated in the Mitigation Plan.
19. The Sponsor shall submit an annual ledger documenting buffer credit releases and debits
to NCDWQ for maintaining accurate records of credit transactions made from the Bank.
Accounting procedures shall include the generation of a report by the Sponsor showing credits
used each time they are debited from the Bank, which the Sponsor shall provide within 30 days
of the debit to NCDWQ. In addition, the Sponsor shall prepare an annual report, by the end of
each calendar-year, showing all credits used, and the balance of credits remaining to NCDWQ,
until such time as all of the credits have been utilized, or this Agreement is otherwise terminated.
All reports shall identify credits debited and remaining by type of credit (e. g., riparian buffer),
and shall include for each reported debit the NCDWQ ID number for the Authorization for
which the credits were utilized.
Property Disposition
20. The Sponsor shall secure a Permanent Conservation Easement as part of the requirements
for the overall Bank MBI.
Financial Assurances
21. The Sponsor will provide security in the form of acceptable performance bonds or letters of credit
as described in and as part of the MBI for the entire Bank.
Long-term Management
22. The Sponsor shall implement the long-term management measures described in the
Mitigation Plan, section 14. The Mitigation Plan shall be amended to specify a vegetation
(Version 2.0 March, 2008)
success rate of 320 trees per acre after five years within the stream buffers for which riparian
buffer mitigation credit is specified.
Miscellaneous
23. Any delay or failure of Bank Sponsor shall not constitute a default hereunder if and to the
extent that such delay or failure is primarily caused by any act, event or conditions beyond the
Sponsor's reasonable control and significantly adversely affects its ability to perform its
obligations hereunder including: (i) acts of God, lightning, earthquake, fire, landslide, drought,
hurricane, storm, flood, or interference by third parties; (ii) condemnation or other taking by any
governmental body; (iii) change in applicable law, regulation, rule, ordinance or permit
condition, or the interpretation or enforcement thereof; (iv) any order, judgment, action or
determination of any federal, state or local court, administrative agency or government body; or
(v) the suspension or interruption of any permit, license, consent, authorization or approval. If
the performance of the Bank Sponsor is affected by any such event, Bank Sponsor shall give
written notice thereof to the NCDWQ as soon as is reasonably practicable. If such event occurs
before the final availability of all credits for sale, the Sponsor shall take remedial action to
restore the property to its condition prior to such event, in a manner sufficient to provide
adequate mitigation to cover credits that were sold prior to such delay. Such remedial action shall
be taken by the Sponsor only to the extent necessary and appropriate, as determined by
NCDWQ.
24. No third party shall be deemed a beneficiary hereof or shall be entitled to seek
enforcement hereof.
25. In the event any one or more of the provisions contained in this RBMBI are held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceablility
will not affect any other provisions hereof, and this RBMBI shall be construed as if such invalid,
illegal or unenforceable provision had not been contained herein.
26. This RBMBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.
27. The terms and conditions of this RBMBI shall be binding upon, and inure to the benefit
of the parties hereto and their respective successors.
28. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below:
(Version 2.0 March, 2008)
Sponsor:
Richard K. Mogensen
Mid-Atlantic Mitigation, LLC
1960 Derita Road
Concord, NC 28027
NCDWQ:
Ms. Coleen Sullins, Director
Division of Water Quality Wetlands Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
(Version 2.0 March, 2008)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The Forrest Creek Mitigation Bank In Orange County, North
Carolina":
Sponsor: Mid-Atlantic Mitigation, LLC
By: - Date: 3 - ? o -60
North C4rDkna Division of Water Quality:
By: - Date: 2 o6
(Version 2.0 March, 2008)
List of Appendices
Appendix A: Forrest Creek Mitigation Bank Mitigation Plan and MBI