20080511 Ver 1_More Info Received_20080918

Robert J. Goldstein and Associates, Inc.
ENVIRONMENTAL CONSULTANTS
1221 Corporation Parkway, Suite 100 Since 1985 Tel:[phone]
Raleigh, North Carolina 27610 Fax:[phone]
e-mail: rgoldsteinOrioaCarolina com website: www.RJGAcarolina.com
September 17, 2008
Eric Kulz, Environmental Specialist
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
RE: GES Neuse River Riparian Buffer and Nutrient Offset Umbrella MBI
Mr. Kulz:
As you requested, attached please find two signed copies of the GES Neuse MBI. Please inform
us when the MBI has been approved.
We look forward to hearing from you.
Sincerely,
Jessi O'Neal
Ecologist
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R QUALITY
WLp,NDS AND STOR ?R BRAWCFi
NEPA & SEPA Environmental Assessments .Environmental Impact Studies • Jurisdictional Wetland & Stream Buffer Delineations • 404 - 401 Permits
• GIS/GPS Mapping • Water Quality Monitoring • Stream & Wetland Mitigation and Restoration • Endangered Species Surveys & Monitoring
• Biological Assessments & Conservation Plans • Water Intakes & Reservoirs • Water Lines & Treatment Plants • Sewerlines & Wastewater
Treatment • Instream Flow Analyses • Interbasin Transfer Certificates • Lake Management & Watershed Modeling .Archaeological Surveys and
Testing • Solid Waste Landfills • Phase 1 Environmental Site Assessments • Parks & Greenways Planning • CWMTF Grant Applications
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• GREENE ENVIRONMENTAL SERVICES
NEUSE RIVER RIPARIAN BUFFER AND NUTRIENT OFFSET
UMBRELLA MITIGATION BANKING INSTRUMENT
1. PREAMBLE
This Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument, regarding the
establishment, use, operation, and maintenance of the Greene Environmental Services Neuse
River Basin Riparian Buffer and Nutrient Offset Umbrella Bank (Bank) is made and entered into
by and among Greene Environmental Services, LLC, (GES) and the North Carolina Department
of Environment and Natural Resources - Division of Water Quality (DWQ).
The purpose of the Bank is to improve water quality through the restoration of riparian buffers
within the Neuse River Basin in the State of North Carolina, United States Geological Survey
(USGS) Hydrologic Unit Code (HUC) 030202, to provide mitigation for buffer impacts and
development requiring nutrient offset payments within the Neuse River Basin, and to sell any
resulting credits to third parties.
II. AUTHORITIES
The credits resulting from the establishment of this Bank will be used to provide riparian buffer
• mitigation and nitrogen offset credits in accordance with the requirements of 15A NCAC 2B
.0232 Neuse River Basin - Nutrient Sensitive Waters Management Strategy: Basin Nutrient
Reduction Goal. Specifically these credits will be used in accordance with 15A NCAC 2B .0234
(Wastewater Discharge Requirements), 2B .0235 (Basinwide Stormwater Requirements), 2B
.0242 (Mitigation program for protection and maintenance of existing riparian buffers), and
under such authority as established in SL 2007-438. All activities will be consistent with rules
adopted by the Environmental Management Commission and all other applicable authorities.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Each tract of land subject to a conservation easement or restrictive covenants described in
Section III. E. ("Parcel") to be included in the Bank shall require a Bank Parcel Development
Package (BPDP), including detailed information concerning site location, existing
conditions, proposed restoration activities, monitoring and maintenance plans, financial
assurances, and associated mitigation potential (to include credit generation, service area, and
accounting as appropriate for each regulatory authority cited above). Additional Parcels may
be added to the Bank at any time upon approval of the associated BPDP by the DWQ and
prior to use of the Parcel for mitigation purposes.
B. GES agrees to perform all necessary work, in accordance with the provisions of this Banking
Instrument, to establish and/or maintain riparian buffer until it is demonstrated to the
satisfaction of the DWQ that the restored property complies with all conditions contained
• herein, or until all credits are sold, whichever is later.
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• C. GES will obtain all appropriate environmental documentation, permits or other
authorizations needed to establish and maintain the Bank. This Banking Instrument does not
qualify or substitute for such authorization.
D. Financial Assurance Requirements: Following approval of the BPDP, Greene Environmental
Services, LLC shall provide financial assurances in the form of a Letter of Credit to ensure
completion of all remaining mitigation work, required reporting and monitoring, and any
remedial work required pursuant to this MBI. The amount of the Letter of Credit shall be
equal to the estimated cost of implementation of the restoration plan as specified in the
BPDP, but no less than $100,000. Estimated costs will include any necessary public notice,
historical background searches, soil and hydrologic studies, site design, surveys, site
preparation, tree planting, annual monitoring fieldwork and reports, re-planting, long-term
management, and miscellaneous expenses outlined in the Mitigation Plan.
E. Real Estate Provisions: Prior to the certification of any credits, GES shall acquire a
permanent conservation easement(s) or record restrictive covenants to the deed(s) on all
Bank Parcels to provide protection to the restored riparian buffer from activities that would
impair its ability to provide nutrient abatement to waters of the Neuse River Basin. The form
of the conservation easement or restrictive covenants shall be consistent with the standards
employed by the State of North Carolina in the protection of restored riparian buffers and
shall be approved by the DWQ prior to the certification of any credits. GES shall not grant
additional easements, right of way, or any other property interest in or to the project areas
• without the written consent of the DWQ or its designee. In the case of a conservation
easement, GES will hold the easement until all credits are released from the Bank Parcel. At
the conclusion of Bank activities, the conservation easement(s) may be permanently
transferred to an entity approved by DWQ to be held in perpetuity.
F. As-Built Reports: GES agrees to submit an as-built report for each Parcel within 30 days
after completing the establishment of the buffer. The as-built report will describe in detail
any deviation from the BPDP.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions: GES agrees to perform all necessary work to maintain the Parcel(s)
consistent with the maintenance criteria established in this instrument. GES shall continue
with such maintenance activities until all credits are sold or the Parcel is closed. Deviation
from the approved BPDP is subject to review and written approval by DWQ or its designee.
B. Monitoring Provisions: GES agrees to perform all necessary work to monitor the Bank to
demonstrate compliance with the Success Criteria established in this Banking Instrument and
site-specific conditions of the BPDP.
C. Vegetative Success Criteria: Vegetative Success Criteria will be based upon the density and
• growth of character tree species. "Character Trees" are defined as planted or volunteer
species identified from a survey of local vegetation on less degraded sections of the specified
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• stream and from reference literature that details native species. A list of Character Tree
species for each Parcel will be detailed in that Parcel's BPDP. Vegetative Success Criteria
will be based upon guidelines set forth in the Guidelines for Riparian Buffer Restoration
prepared by the North Carolina Ecosystem Enhancement Program (or subsequent updated
versions of this Guidance in place at the date of acceptance of a BPDP). Success is defined as
the survival of an average density of 320 Character Trees per acre. Planted species must
account for a minimum of 30 percent of the above densities. If vegetative success criteria are
not achieved based on acreage density calculations from combined monitoring plots over the
entire restoration area, supplemental planting may be performed with tree species approved
by DWQ. Supplemental planting may be performed as needed until vegetative success
criteria are met. No quantitative measurements of herb assemblages will be required to meet
the vegetative success criteria. The quantity of monitoring plots will be determined in
accordance with The Carolina Vegetative Sampling Protocol (Levels I & II), such that no
more than 2 percent of any one Parcel is encompassed in monitoring plots. Visual
observation of streambank stability will also be made. Areas of significant bank erosion will
be repaired through matting and/or vegetative planting.
D. Monitoring Reports: GES shall submit to the DWQ an annual monitoring report, no later
than December 31 each year for five years after the first full growing season unless otherwise
specified in the BPDP and approved by DWQ, describing the conditions of each Bank Parcel
and relating those conditions to the success criteria. Reports will be submitted annually and
shall contain the following:
• 1. A U.S. Geological Survey map showing location of the Bank;
2. A detailed narrative summarizing the condition of the Bank and all regular
maintenance activities;
3. Appropriate topographic maps showing location of sampling plots, permanent photo
points, parcel boundaries, etc.
4. Monitoring data, including specific vegetative counts and photographs; and
5. A copy of the Bank credit/debit ledgers.
E. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the success
criteria described in this instrument, GES shall develop necessary contingency plans and
implement appropriate remedial actions for the Bank in coordination with the DWQ or
designee. If the DWQ determines that the Bank is operating at a deficit (i.e., GES is selling
or transferring credits not yet available), the sale/transfer of credits will immediately cease,
and the DWQ, in consultation with GES, will determine what remedial actions are necessary
to correct the situation.
V. OPERATION OF BANK
A. Nitrogen Abatement of Restored Riparian Buffer: GES and DWQ agree that the pounds of
nitrogen offset per acre of restored riparian buffer shall be two thousand two hundred and
seventy three (2273 lbs/acre) as established by the DWQ and applied to existing riparian
buffer-based nitrogen abatement sites across the State of North Carolina.
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• B. Establishment and Release of Credits: Upon submittal of all appropriate documentation by
GES; and subsequent approval by DWQ or its designee, it is agreed that the mitigation
credits associated with this Bank will become available for sale to a third party in accordance
with the following schedule unless a different release schedule is specified in the BPDP and
approved by DWQ.
Table I -Credit Release Schedule
Task Project Milestone % Credit Available
for Sale
1 Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants Recorded and
Performance Guarantee Funds Encumbered b a Letter of Credit 20
2 Mitigation Site Earthwork, Planting and Installation of
Monitoring Plots 20
3 Approval of As-Built Report 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%
• C. Projects Eligible to Use the Bank. Projects eligible for utilization of the credits are those
requiring authorization under the requirements of 15A NCAC 2B .0234 (Wastewater
Discharge Requirements), 2B .0235 (Basinwide Stormwater Requirements), and 02B .0242
(Mitigation Program for Protection and Maintenance of Existing Riparian Buffer) provided
such use has met all applicable requirements and is authorized by the appropriate authority.
D. Procedure for Debiting or Crediting the Bank: GES shall maintain two credit ledgers: one
accounting for buffer mitigation credits (in square feet), which are generated by buffer areas
of < 50 feet in width; and one accounting for nitrogen offset credits, which are generated
from buffer areas >51 feet in width. The ledgers shall record the area of available buffer for
each Parcel and all associated debits and credits. Credits can be converted and transferred
from buffer mitigation to nitrogen offsets, but the opposite shall not occur. No debits or
credits to the ledger shall be made without the written concurrence of the DWQ or its
designee, and GES. All written concurrences shall be kept in the ledger.
VI. OTHER PROVISIONS
A. GES will allow, or otherwise provide for, access to the Parcel(s) by the DWQ or other parties
authorized by the DWQ, as necessary, for the purpose of inspection and compliance with the
terms and conditions of this Banking Instrument and the conservation easement or restrictive
covenants. Inspecting parties shall provide reasonable notice, of not less than 24 hours, to
0 GES, prior to inspection of Bank.
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• B. Force Majeure: GES will not be responsible for Bank failure that is attributed to natural
catastrophes such as flood, drought, disease, regional pest infestation, etc. that are beyond the
control of GES. DWQ must concur in writing that a force majeure event has occurred.
C. Validity, Modification, and Termination of the Banking Instrument: This Banking Instrument
will become valid on the date of the last party's signature. This Banking Instrument may be
amended or modified only with the written approval of all signatory parties.
D. Specific Language of Banking 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 Banking Instrument by reference, and that are
not legally binding, the specific language within the Banking Instrument shall be controlling.
E. Dispute Resolution. Any disputes between the Bank Sponsor and the DWQ regarding the
attainment of success criteria and release of credits from a specific site and appropriate
monitoring, maintenance and/or remedial onsite activities shall first be addressed among the
field staff of DWQ and GES field personnel and then, if not settled, raised to the level of the
individual signatories to the MBI or their designees.
F. Notices: Unless otherwise provided herein, all notices and other communications which may
be or are required to be given or made by any party to the other in connection herewith shall
be in writing and shall be deemed to have been properly given and received on the date
• delivered in person 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 GES: Bobby Ham
President, Greene Environmental Services, LLC
90 Ham Produce Road
Snow Hill, NC 28580
IF TO DWQ: Ms. Coleen Sullins
Director, Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699-1617
G. Entire Agreement: This Agreement constitutes the sole and entire agreement among the
parties hereto and no modification of this Agreement shall be binding unless in writing and
signed by all parties hereto.
H. Applicable Law: This Agreement shall be construed under the laws of the State of North
Carolina.
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• IN WITNESS WHEREOF, the parties hereto have executed this Agreement entitled "Greene
Environmental Services Neuse River Riparian Buffer and Nutrient Offset Umbrella Mitigation
Banking Instrument":
Greene Environmental Services:
By:
Name
Title: h?? ???lwfQ? l •ce L-L, ,-
Date: Se 101 e Vh U P I ?? 2-0 g
North Carolina De artment of Environment and Natural Resources •?
Division of ater uality: a
By:
Name: U 1-C in, ?? - IRO 66
C
Title:
y
Date: l0 L-3 0 pj
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