20081473 Ver 1_More Info Received_20081003

0S-1'+13
? ? ? Kimley-Hom
and Associates, Inc.
October 2, 2008
Mr. Eric Kulz and Ms. Amy Chapman
NC Division of Water Quality
2321 Crabtree Blvd.
Suite 250
Raleigh, North Carolina 27604
Re: Neuse Riparian Buffer Umbrella Mitigation Bank
Jones, Johnson, and Wayne Counties, North Carolina
Dear Ms. Chapman and Mr. Kulz:
Thank you for your expeditious review of the Prospectus and Riparian Buffer
Mitigation Banking Instrument (RBMBI) for the subject, proposed Mitigation
Bank. Please find the attached, revised RBMBI that includes language intended
to address the comments you provided dated September 26, 2008. Sections 9, 13
and 22 contain the revisions that we believe address your comments.
If there is any additional information you need or any way we can assist in
expediting the processing of this application, please do not hesitate to contact me
at [phone].
Very truly yours,
KIML?EY-HORN ASSOCIATES, INC.
q'
Todd St. Jo , PE
Attachments:
Revised RBMBI (Version 1.1)
OCT
2008
TLAfVDENR - WATER QUALtTy
AND STORMWATER BRANGi
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P.0 Box 33068
Raleigh, North Carolina
27636-3068
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TEL [phone]
FAX [phone]
(Version 1.1 October, 2008)
AGREEMENT TO ESTABLISH THE EBX NEUSE RIPARIAN BUFFER UMBRELLA
MITIGATION BANK
IN JOHNSTON, WAYNE, AND JONES COUNTIES, NORTH CAROLINA
This EBX Neuse Riparian Buffer Umbrella Mitigation Banking Instrument (RBMBI) is made
and entered into on the _ day of , 200, by EBX Neuse I, LLC, hereinafter
Sponsor, and the North Carolina Division of Water Quality (NCDWQ).
WHEREAS the purpose of this Agreement is to establish the EBX Neuse Riparian Buffer
Umbrella 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, certain parcels of land as described in the Neu-Con Wetland
and Stream Umbrella Mitigation Banking Instrument (Neu-Con MBI), the RBMBI Prospectus
and in the Neu-Con Wetland and Stream Umbrella Mitigation Bank Restoration Plans
(Restoration Plans) that are located in the Neuse Basin in Johnston, Wayne, and Jones Counties,
North Carolina (Appendix A), and as shown in Figures 1 through 4 of the RBMBI Prospectus;
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 Restoration Plans is likely to result
in restored and protected riparian buffers at the Bank site;
WHERAS the Sponsor may acquire additional buffer mitigation sites in the Neuse River Basin
and submit each such site to NCDWQ for review and approval for inclusion in the Bank;
THEREFORE, it is mutually agreed between the parties to this Agreement that the following
provisions are adopted and will be implemented upon execution 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 buffer impacts authorized by 15A NCAC 2B 0.233 in circumstances deemed
appropriate by NCDWQ.
2. Use of credits from the Bank to offset riparian buffer impacts authorized by 15A NCAC
2B 0.233. 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.
(Version 1.1 October, 2008)
4. The initial Bank sites have previously been restored and are protected by permanent
conservation easements. A more detailed description of the baseline conditions of the initial
sites is contained in the Monitoring Plans in Appendix A.
5. A Restoration Plan for each proposed additional site shall be submitted to NCDWQ for
review and approval prior to each such additional site being inclused in the Bank, and such
submittals shall include a site-specific Monitoring Plan.
6. The Sponsor shall perform the work described in each site specific Monitoring Plan until
success criteria have been met.
7. The Sponsor shall monitor the Bank sites as described in the Monitoring (or Restoration)
Plans, until such time as the NCDWQ determines that the success criteria of a density of 320
trees per acre after five years have been met. The monitoring period shall be a minimum of five
years.
8. 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.
9. The Sponsor shall provide to NCDWQ the annual reports as described in the RBMBI
Prospectus (Appendix A). The Sponsor shall also copy NCDWQ on correspondence that
documents the sales of credits to applicants.
10. NCDWQ shall review said annual reports, and may, at any time, after consultation with
the Sponsor, request the Sponsor to take remedial action at a Bank site designed to achieve the
specified success criteria.
11. The Sponsor shall implement any remedial measures necessary to achieve the specified
success criteria. In the event the Sponsor determines that remedial action may be necessary, it
shall provide notice of such proposed remedial action to NCDWQ. No remedial actions shall be
taken without the concurrence of NCDWQ.
12. NCDWQ shall be allowed reasonable access to the Bank sites for the purposes of
inspection of the Sites and compliance monitoring activities. The Sponsor shall be notified 48
hours in advance of any such NCDWQ inspection.
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
Units 03020201 for the Westbrook Site, 03020203 for the Nahunta Site, and 03020204 for
(Version 1.1 October, 2008)
the Marston Site. Additionally, other Sites, if approved by NCDWQ, in different 8-Ditgit
Hydrologic Units may be added in the future. Credits generated from such Sites will apply within
the 8-Digit Hydrologic Units in which the Sites are located. Units Use of credits from the Bank
to compensate for impacts beyond the GSA may be considered by NCDWQ at an out-of-HUC
multiplier of 1.5 on the mitigation credit. Separate ledgers shall be developed and maintained for
each Site to track mitigation credits.
14. The buffer mitigation credits generated by the initial Bank sites shall be as specified in
Table 1, below.
TABLE 1
Zone 1 (sq ft) Zone 2 (sq ft) Total (sq ft) Total (acres)
Nahunta 375,960 237,993 613,953 14.1
Marston 227,298 121,406 348,704 8.0
Westbrook 226,156 131,262 357,418 8.2
Total 829,414 490,661 1,320,075 30.3
15. 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.
16. Riparian buffer mitigation requirements and riparian buffer mitigation credits will be
determined according to the procedures 15A NCAC 213 0.233 and .0242. Buffer restoration and
buffer enhancement shall be defined per the Memorandum titled "NCDWQ Buffer
Interpretation/Clarification #2008-17, January 25, 2008".
17. 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.
18. Twenty percent (20%) of the restoration credits for each Bank site 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 Restoration and Monitoring Plans by NCDWQ;
c. Delivery to NCDWQ of the financial assurance described in paragraph 24 of this
RBMBI;
d. Recordation of the preservation mechanism described in paragraph 23 of this RBMBI;
(Version 1.1 October, 2008)
19. The Sponsor must complete the initial physical and biological improvements to each
Bank site pursuant to the Restoration Plans 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.
20. Subject to the Sponsor's continued satisfactory completion of all required success criteria
and monitoring, additional buffer mitigation credits shall be available for sale by the Sponsor in
accordance with the schedule specified in Table 2, below:
Riparian Buffer Restoration and Enhancement Credit Release:
Table 2 - Credit Release Schedule

Task
Project Milestone % Credit
Available for
Sale

1 MBI and Prospectus Approved by NCDWQ, Conservation Easement or
Restrictive Covenants Recorded and Financial Assurance Provided to
NCDWQ
20
2 Mitigation Site Earthwork, Planting and Installation of Monitoring
Devices Completed 20
3 Approval of As-Built Report 10
4 Submit Monitoring Report #1 to NCDWQ (meets success criteria) 10
5 Submit Monitoring Report #2 to NCDWQ (meets success criteria) 10
6 Submit Monitoring Report #3 to NCDWQ (meets success criteria) 10
7 Submit Monitoring Report #4 to NCDWQ (meets success criteria) 10
8 Submit Monitoring Report #5 to NCDWQ (meets success criteria) 10
Total 100
21. 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 Restoration and/or Monitoring Plans based on a success criteria of 320 trees per
acre after five years.
22. The Sponsor shall submit annual ledgers for each Site documenting buffer credit releases
and debits to NCDWQ for maintaining accurate records of credit transactions made from each
Site of 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
4
(Version 1.1 October, 2008)
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
23. The Sponsor has recorded a Permanent Conservation Easement for each initial Bank site
in the County where each site is located. The Sponsor shall record similar easements for each
additional site approved for inclusion in the Bank.
Financial Assurances
24. The Sponsor will provide to NCDWQ financial assurances for the pre-construction
release of credits in the form of performance bonds or letters of credit. Such financial assurances
shall be in the amount of twenty percent of the credits anticipated to be generated for each site
multiplied by the NCEEP price for riparian buffer mitigation in the Neuse River Basin. Such
financial assurances shall be retired upon submittal of the as-built report for each site. For the
initial Sites of the Bank (Marston, Westbrook, and Nahunta), no financial assurances are required
as the Sties have completed or are in the monitoring period.
Miscellaneous
25. Any delay or failure of 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 Sponsor is affected by any such event, 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.
26. No third party shall be deemed a beneficiary hereof or shall be entitled to seek
enforcement hereof.
(Version 1.1 October, 2008)
27. 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.
28. This RBMBI shall be governed by and construed in accordance with the laws of North
Carolina and the United States as appropriate.
29. The terms and conditions of this RBMBI shall be binding upon, and inure to the benefit
of the parties hereto and their respective successors.
30. All notices and required reports shall be sent by regular mail to each of the parties at their
respective addresses, provided below:
Sponsor:
Mr. Thomas Rinker
EBX Neuse I, LLC
10055 Red Run Boulevard, Suite 130
Owings Mills, MD 21117-5822
NCDWQ:
Ms. Coleen Sullins, Director
Division of Water Quality Wetlands Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
6
(Version 1.1 October, 2008)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled
"Agreement To Establish The EBX Neuse Riparian Buffer Umbrella Mitigation Bank In
Johnston, Wayne, and Jones Counties, North Carolina":
Sponsor: EBX Neuse I, LLC
By:
Date:
North Carolina Division of Water Quality:
By: Date:
(Version 1.1 October, 2008)
List of Appendices
Appendix A: RBMBI Prospectus