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HomeMy WebLinkAbout20141149 Ver 1_Buffer & N.O. UMBI_20170712AGREEMENT TO ESTABLISH THE RESTORATION SYSTEMS' CARE PEAR 02HAW-RIVER SUBWATERSHED — PHASE ONE NI ITRICNT AND R PPER UMBRELLA MITIGATION BANKING INSTRUMENT IN THE CAPE FEAR RIVER BASIN FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE JORDAN LAKE NUTRIENT MANAGEMENT STRATEGY TABLE OF CONTENTS PREAMBLE.....................................................................................................................................2 LOCATION AND GEOGRAPHIC SERVICE AREA..................................................................................2 AUTHORITIES...........................................................A ................................................3 ESTABLISHMENT OF THE BANK PARCELS ..................................................................3 BANK PARCEL DEVELOPMENT PACKAGE...................................................................5 POST CONSTRUCTION DOCUMENTATION ....... .....................................................7✓a CALCULATION OF MITIGATION CREDITS.............................................................................99 CREDIT RELEASE SCHEDULE........................................................................ ...................... 12-1 PROCEDURE FOR DEBITING AND CREDITING..................................................... ................ 1334 BANK PARCEL CLOSURE .............. .............................................................................. 1644 GENERAL PROVISIONS...................t 41& ..................... k .......................................................... 164 look 'V ATTACH M E NTS A— Division of Water Resources Authority Document B — IAFG@R WgNq Delivered Credit Yield Table for Jordan Sub Watersheds dated 12/20/2012 C — Rule Text 15A NCAC 0213 .0240 D — Rule Text 15A NCAC 02B .0295 (Effective November 1, 2015) E —Jordan Lake Buffer Ledger Template F —Jordan Lake N1Itr,P.^RtNutrient Offset Ledger Template N) 1% Page 1 of 18 I. PREAMBLE This Restoration Systems' R„��^^ ^Haw -River Subwatershed - Phase One Nutr;t-nt RRd a„ff, . Umbrella N„trmt- t and Q„ff .Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of four (4)_Nutrient Offset and Buffer Mitigation Bank Parcels, identified in Section II, to provide Jordan Lake Riparian Buffer mitigation credits ("Riparian Buffer Credits') and Jordan Lake Nutrient Strategy nutrient load reduction credits ("Nutrient Offset Credits') SiMU't Reusl y QrphaR Greek and o,,Gky Tee _ is made and entered into by and among Restoration SystemsLLC -acting as the Bank Sponsor ("Sponsor"), and the North Carolina Department of Environmental Quality - Division of Water Resources ("DWR"). This Instrument is in accordance with 15A NCAC 0213.0240 and the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachments C and D). The purpose of these Bank Parcels is: 46?%6� A_fo restore, enhancement and preserve riparian vegetation adlacent to streams and/or agricultural ditches with the intent to improve water quality th.eugh the resteratien of riparian h..hitRt ,,.,a adja,eRt FiPaFiaR aFpaq within the Haw River Sub -watershed of the Jordan Lake Watershed. A:B.To convert agricultural land uses within riparian areas adlacent to streams and/or agricultural ditches into a dense, hardwood vegetated state with the intent to significantly reduce nutrient loadings associated with agricultural practices into streams and ditches. L , , - Commented [MK1]: These edits are just to showyou what I am looking for. You cannot prove that you are —To provide jerdaR Lake RipariaR Buffer Mitt atieR IleitS ("Ri aFOR. Ruffpr Gredits") and L..daR improving water quality unless you are takingsamples Lake RlltriPRt 1ARd rpd-rriAR e eclat ("NytrmeRt Of -set r....d�r���� mthiR the Wayf ot,,... before and after and monitoring bugs, sediment loads, etc. mltlgatlOn Edit this section to your liking... but make sure to provide • more "actual" purposes of your Bank s,C. wand sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits to third pa s in the Haw River Sub -watershed for development (both existing and proposed) requiring such mitigation. PHIC S II. LOCATION ANDSto CE AR A. The GeService A ("GSA") is the designated area wherein a Bank can reasonably be expectiparia ffer Credits and/or Nutrient Offset Credit for impacts due to develop B. The GSA for this instrument is limited to the Haw River Sub -watershed of Jordan Lake as defined in rule 15A NCAC 02B .0262. C. Sale or transfer of Riparian Buffer Csredits shall be limited to the Haw River sub -watershed of the Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262, unless otherwise authorized by the DWR or delegated local government in accordance with 15A NCAC 0213 .0295. D. Sale or transfer of delivered Nutrient Offset Credits shall also be limited to the Haw River sub - watershed of the Jordan Lake watershed, as defined in Rule 15A NCAC 02B .0262, unless Page 2 of 18 otherwise authorized by the DW R or delegated local government in accordance with 15A NCAC 0213 .0240 E. The following table a,., GIFi:ti,., provides site-specific details of the leeatieR and fef-each of the four Bank Parcels proposed under this Instrument, all are within the Haw River Sub -watershed of Jordan Lake; Bank Parcel Count 14 -Digit USGS Project Named Receiving Primary Land useL Name Hydrologic Unit Code Location WRtAKsStream 36.278744, Benton Branch Caswell 03030002030030 -79.419371 Benton Branch Cattle Pasture 35.990932, Motes Creek Alamance 03030002050040 -79.284956 Motes Creek Cattle Pasture 35.978992' Orphan Creek Alamance 03030002050010 Meadow Hay Fields and Cattle Pasture -79.315216 Rocky Top Alamance 03030002050050 35.886642, Reedy Branch a Fields -79.388262 _ Commented [RH2]: Same as C. III. AUTHORITIES A. The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in accordance with the requirements in the DWR Authority document refeMnced 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 anyRew subsequently approved North Carolina ("State") statutes and rules for the fAr the Jordan Lake Nutrient Sensitive Water Mmanagement Strategy. C All +,vibe ,..d,,. k; +Thesale—se ng of mitigation credits generated from Bank Parcels approved under this Instrument shall be consistent with approved North Carolina statutes and rules for the Jordan Lake lent Sensitive Waters Management Strategy. D. IMitigation activities proposed under this Instrument and corresponding Bank Parcel Development Packages (BPDP) to generate riparian buffer mitigation credits and nutrient offset credits shall be consistent with North Carolina ("State') statutes and rules for the Jordan Lake Commented [MK3]: This language is added into these Nutrient Sensitive Waters Management Strategy that are in place at the time this Instrument UMBIs, because the attorney doesn't want the assumption i to be that these parcels can be constructed to generate becomes vall credit under any other rule other than the ones this UMBI is being approved under. If parts of 0295 change any part of IV. ESTABLISHMENT OF THE BANK PARCELS your mitigation activities, your projects proposed under this UMBI cannot benefit or lose based on those rule changes. A. INCDWR shall issue a mitigation determination that specifies the area, type and location of Commented [MK4]: when letters are already issued, use mitigation in the form of a "site viability letter" subsequPlAtteafter their onsite visit.. The table this language...If letters have not been issued, this language �e g g 13,.i,.,., ,.,,.n.,,.I ,..ti,.., eitp viability lettel ,.., l isswed by PICID IR eR..... f9IF...... eR..... f9i"..... and will be slightly different. fer..... eR� he site viability letter is not an approval of the site to generate mitigation credits, _ Commented [RH5R4]: Okay. Page 3 of 18 but is a preliminary review of the Bank Parcel that details and confirms existing land use conditions, defines the riparian zone sites (Enhancement Preservation, or Restoration), and identifies features (streams, ditches, ponds, etc.) that meet general criteria to be suitable to generate mitigation credits. The table below outlines when site viability letters were issued by NCDWR: IAIL B. Eaclh�14e site viability letters issued for these #??four 4 Bank Parcels will expire upon the submittal -approval of a BPDP ta_b)Lthe DWR, or within 18 months from the date the letters were issued, whichever comes first. Site viability letters that expire must be reissued by DWR prior to submittal of a BPDP and may cause a Bank Parcel to be excluded from review and approval under this Instrument. _ - - Commented [MK6]: Language to be considered by DWR Y\ for sites that have viability letters issued without expiration C. The Bank Parcels proposed for inclusion under this Ins ment shall re a Bank Parcel dates. Development Package ("BPDP") be submitted to, and approved by, the DWR rior to use of the Commented [RH7R6]: I am fine to include this but don't individual Bank Parcel for mitigation purposes or the &aL- -sae4e or transfer of any associated want to slow down permitting with legal review. credits. The contents of each BPDP are provided in Section V. The BPDP must include any and all supporting information, including the site viability letter referenced in "A" of this section, that supports the establishment of the Bank Parcel for generating riparian buffer mitigation and nutrient offset. The BPDP must also describe any changes to the site between the date of the site viability letter and the date the BPDP is submitted. D. These Bank Parcels are paFt-also part of the "Cape Fear 02 Umbrella Mitigation Bank" USACE Action ID #-SAW-2014-00657 and will involve stream and wetland mitigation..- The Mitigation Banking Instrument and Site specific Mitigation Plans for each of the four (4) Sites, was approved July 6th, 2017. Formatted: Superscript E. Each BPDP will be placed on public notice and made available for public commenting for 15 calendar days. F. Riparian Buffer Credito ese Bank Parcels may be achieved through restoration,-4ad enhancement_ or vation of DWR riparian buffers as they are defined in 15A NCAC 02B .023367, and oth, as allowed per^'^^^ ^ ^d and ^ med str wath;^ each °RFP^' RPPAFdiRg to 15A NCAC 0236.0295 (n) and the FiPaFiaR FeSteFRtOAR RRFI ^^I;RRrp eRt aIeRg ReR ubjeet also% ed an 154 nu,nr, ma 0295 (o) on +ti^ Bank Parce4s Riparian 4Buffer sCredits are only attainable if the width of the restoration site, enhancement sitde, and preservation site lis at least 20 feet from top of bank_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - Commented [MK8]• As long as you aren't proposing ditches for buffer credit, this is accurate. G. �he Bank Parcels are intended to provide Jordan Lake riparian buffer mitigation as follows: 1. Planting hardwood trees and shrubs on a Restoration Site and Enhancement Sites as defined in 15A NCAC 02B .0295 (b) along subject streams. and per 15A ISIGAG OPR 0295 Page 4 of 18 Bank Parcel NC DWR Site visit Viability Letter Received Benton Branch June 13th, 2017 Motes Creek June 13th, 2017 Orphan Creek June 13th, 2017 Rocky Top June 13th, 2017 IAIL B. Eaclh�14e site viability letters issued for these #??four 4 Bank Parcels will expire upon the submittal -approval of a BPDP ta_b)Lthe DWR, or within 18 months from the date the letters were issued, whichever comes first. Site viability letters that expire must be reissued by DWR prior to submittal of a BPDP and may cause a Bank Parcel to be excluded from review and approval under this Instrument. _ - - Commented [MK6]: Language to be considered by DWR Y\ for sites that have viability letters issued without expiration C. The Bank Parcels proposed for inclusion under this Ins ment shall re a Bank Parcel dates. Development Package ("BPDP") be submitted to, and approved by, the DWR rior to use of the Commented [RH7R6]: I am fine to include this but don't individual Bank Parcel for mitigation purposes or the &aL- -sae4e or transfer of any associated want to slow down permitting with legal review. credits. The contents of each BPDP are provided in Section V. The BPDP must include any and all supporting information, including the site viability letter referenced in "A" of this section, that supports the establishment of the Bank Parcel for generating riparian buffer mitigation and nutrient offset. The BPDP must also describe any changes to the site between the date of the site viability letter and the date the BPDP is submitted. D. These Bank Parcels are paFt-also part of the "Cape Fear 02 Umbrella Mitigation Bank" USACE Action ID #-SAW-2014-00657 and will involve stream and wetland mitigation..- The Mitigation Banking Instrument and Site specific Mitigation Plans for each of the four (4) Sites, was approved July 6th, 2017. Formatted: Superscript E. Each BPDP will be placed on public notice and made available for public commenting for 15 calendar days. F. Riparian Buffer Credito ese Bank Parcels may be achieved through restoration,-4ad enhancement_ or vation of DWR riparian buffers as they are defined in 15A NCAC 02B .023367, and oth, as allowed per^'^^^ ^ ^d and ^ med str wath;^ each °RFP^' RPPAFdiRg to 15A NCAC 0236.0295 (n) and the FiPaFiaR FeSteFRtOAR RRFI ^^I;RRrp eRt aIeRg ReR ubjeet also% ed an 154 nu,nr, ma 0295 (o) on +ti^ Bank Parce4s Riparian 4Buffer sCredits are only attainable if the width of the restoration site, enhancement sitde, and preservation site lis at least 20 feet from top of bank_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - Commented [MK8]• As long as you aren't proposing ditches for buffer credit, this is accurate. G. �he Bank Parcels are intended to provide Jordan Lake riparian buffer mitigation as follows: 1. Planting hardwood trees and shrubs on a Restoration Site and Enhancement Sites as defined in 15A NCAC 02B .0295 (b) along subject streams. and per 15A ISIGAG OPR 0295 Page 4 of 18 4- 2. Planting hardwood trees and shrubs on a Restoration Site R„ffer Restoratinp and Eenhancement Site along en-Nnon-sSubject sStreams as allowed in 15A NCAC 02B.0295 (o)(3). 3. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295_(b) along subject streams as allowed in 15A NCAC 02B.0295 (o)(5) 4. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (b) along non -subject streams as allowed afdd-per 15A NCAC 02B .0295(o)(4)d 3-5. Enhancing riparian areas that are being grazed by cattle by installing fencing to permanently exclude cattle from the streams and their associated riparian areas as allowed in 15A NCAC 02B .0295 (o)(6).; by :^ ..u;^., fene:..... Rd theve!Fff'neter..f the mitigatien site te Permanently remevt- catflp Aut of the riparian areas and 4rPaFn,;;.A.FhPrt- 46. Diffused flow will be maintained onsite �o the maximum extent practicablel.] , H. Nutrient Offset Credit may be achieved on these Bank Parcels through restoration and `\ enhancement of riparian areas areas^f the FipariaR areas ...d,..,.^^t W BRRk Pare^I 4r ^,d where agriculture isthe predominant land use. The width ofthe restoration or enhancement area begins at the most landward limit top of the bank or the rooted herbaceous vegetation and extends landward a maximum of 200 feet on all sides of the surface waters. the predemmnate land use. --fhe Bank Parcels will provide Nutrient Offset Credit in accordance with 15A NCAC 02B .0240 and ares expected to provide Nutrient Offset Credits as follows: I . water Planting hardwood trees and shrubs on a Restoration Site and Enhancement Site as defined in 15A NCAC 02B .0295 (b) along subject streams. 1&72110k In H Thp-R-ankParGelose)(peGtedteprevadenjutr'eRtDffqPtqRqfO"A�Agq- 1. W aRtiRg haF dW99 d trees aR d Sh.l'hg ., a RPgt ArRti^n Sites s .defi.....d i.. 1 S.A. W.A.0 79 .. I qA NCAC 7Q Q295 (e). 4.1. All four of the Bank Parcels submitted for review under this Instrument are anticipated to begin construction of stream and wetland mitigation activities in Fall 20179. BANK PARCEL DEVELOPMENT PACKAGE A. A" RRRkAll Bank Parcel Development Packages (BPDP) submitted under this Instrument shall be submitted to DWR for review and approved prior to any construction on the Bank Parcel for mitigation. The BPDP shall include detailed information consistent with the sections below concerning; 1) site location (14,9 -digit HUC is required); 2) existing conditions; 3) proposed buffer Page 5 of 18 Commented [MK9]: Ifyou insert this statement, then my viability letter will have to address that it is okay. I'll know if this is okay, after our site visit. Commented [RH10R9]: Letme know your thoughts here... It is standard practice for use to maintain diffused flow on our stream sites, point sources of sediment are a killerfor a stream project. I am fine with this in or out, whichever you think is best now that you've been on-site Commented [MK11]: If any of my edits are wrong, please correct. Since I haven't seen the site yet, I am not familiar. Commented [MK12]: You need to detail what activities will be performed onsite to generate these credits just as you did for the buffer credits. It's okay if there is redundancy... Commented [MK13]: Is this true? BJ - No, Corrected to 2017 mitigation and nutrient offset activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated buffer mitigation/nutrient 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) a figure depicting the proposed stream and wetland mitigation areas; and 10) service area figure for each mitigation type. A:B.Calculations of Riparian Buffer and Nutrient Offset Credit within the individual BPDP, will be calculated based on the, site-specific mitigation plans developed and approved under the Cape Fear 02 Umbrella Mitigation Bank, USACE Action ID # SAW -2014-00657, approved July 6th, 2017. 4.C.The Sponsor will obtain all applicable federal, state, local documentation, permits, or authorizations needed to construct and maintain the Bank Parcel. This Instrument does not qualify as, or substitute for, such documentation, ermit, or authorization. 42=D. __Tt1-Any_restoration and or- enhancernek and p 4activities or construction within the riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit or Nutrient Offset Credit must be approved by DWR in writing pr to construction. The failure of the Sponsor to comply with this 4emre uireme may result evised or reduced credit release schedule. All re oration and enhanceme activities m performed in concurrence with any strea and mitigation activities and not befor . 4)-.E.Requests for deviation from the ov PDP must be submitted to DWR in writing. Written approval from the DWR must be rec d priorto implementing ny deviation from the approved BPDP. AO% &F. Prior to the release of any credits, the Sponsor shall acquire a permanent conservation easement at the County Register of Deed's office that is sufficient to ensure protection, operation, and maintenance of restored riparian buffers and other riparian areas forthe duration specified in the approved BPDP. i=G.The form of the conservation easeme�yr t shall be consistent with the standards employed by the State of North Carolina in the protection of restored riparian bufferts and riparian areas and shall be approved by the DWR and Army Corps of Engineers (ACOE) priorto the release of any credits. G, H. The Sponsor shall not grant additional easements, right of ways, or any other property interest in or to the project areas, without prior approval from the DWR. 4-.1. The Sponsor agrees to transfer or 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 fourth year monitoring period. A land trust must be certified under 501(c)(3) of the Internal Revenue Code. Page 6 of 18 4J_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 Each Bank Parcel .L.K. Following approval of the BPDP for each Bank Parcel, 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 sites according to the approved BPDPs. It is the Sponsor's , - Commented [6.114]: responsibility to confirm that the surety company is rated no less than an "A" with each annual bond renewal. 1�L. The amount of each Performance Bond shall be 100% of the estimated cost for implementation of the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond shall be less than $150,000.00 to cover construction costs. t --.M. Alternatively, in lieu of posting Perf rmance Bonds, the S sor may elect to construct the projects prior to the first credit relea NDN. For each Bank Parcel, 9once DWR has released all credits fo pletion of Task 2 aGGerding accordance with the credit release schedule in Section VI - d the DWR has received the As -Built Report as described in Section Vl� and has submitted a itten approval of the As -Built Report, then the Bank Sponsor ea�rwill be released from its performance obligations under the performance bond required in this section. N-.0. To comp section, DWR must be the Obligee on all performance bonds. VI. POST CONSTRUCTION MENTATION FOR EACH BANK PARCEL As -Built Report A. The Sponsor agrees t essary ork, in accordance with the provisions of this Instrument and corresponding BPDPs, to establish, maintain, and monitor Jordan Lake Riparian Buffers or other riparian areas until Items B (1) and (2) of Section X have been satisfied. B. The Sponsor will submit an as -built plan and report for the Bank Parcels within 30 calendar days after completing the estab' hmt-^n* restoration and enhancement of the riparian buffer area B aca and nutrient offset mitigationareas. The Aas-Blauilt report will describe any deviation from the approved BPDP and will document the following: 1. Buffer resto and enhancement -.-_planting details, confirmation offence installation, invasive species control, monitoring device locations, vegetation plot locations, and photo point locations. 4.2. Confirmation that the construction of all the G^ ^nak^^ stream and wetland mitigation activities ske-has been completed. -2-.3. Boundary Survey of the conservation easement area, signed and sealed by a licensed surveyor, including an inventory of the final mitigation areas for riparian buffer and/or nutrient offset mitigation credits in both square feet and acres. Page 7 of 18 '- - - Formatted: Indent: Left: 0.5", No bullets or numbering -3-.4.As-built map of the mitigation area showing where restoration, enhancement and preservation were -was performed and any deviations to the Bank Parcel from what was tWe approved in the BPDP. th.. Mitigati R area Sh.,..,i..g when; rp,;toration was 5. Aerial map of the mitigation that was included in the approved BPDP. 4.6.As-built map of the stream and/or wetland mitigation areas. Finnnrial Acairanra Iddk C. After completion of the restoration/construction, a separate (Performance/Maintenance Bond , - Commented [RH15]: Need to ask Katie, have other FA will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan ben approved by DWR Legal? as described in the approved BPDP and As -Built Report. The Bond must be from it -a surelty company that is rated no less than an "--A-' as rated by A.M. Best, and it is the Sponsor's Note her comment, "If something other than Bonds are to be provided, this is where you will provide that information' responsibility to confirm the surety company is still rated no less th an "A"A with each annual bond renewals. C D. A Performance/Maintenance Bon all be secured each yea or a minimum of five years, and until DWR has released all mitigation credits to the Bank Sponsor. Upon DWR approval, the bond 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. `^s. E Once DWR has released all credits for completion of Tasks 1-9 aGGer' ngZin accordance with e the credit release schedule in Section VIII, the Bank Sponsor 4 of will be released from its performance obligations under the performance bond required in Vie# this Section. I�F.To comply h t witis section'& section'must be bli ee on all performance bonds. Monitoring and Maintenance G. Sponsor shall monitor the Bank Parcel as described in the BPDP until such time as DWR determines that the s6iGGess G4te4aperformance standards described below have been met. The monitoring period shall be a minimum of five consecutive years. H. 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. l`I_A "stem" means a woody seedling, sapling, shrub or tree, no less than 1040 centimeters in height. GJ.If the performance standards of the vegetation are not met, supplemental plantings may be required. Supplemental plantings will be utilized until the required densities rave been achieved and maintained for five years. Bank Parcel maintenance, such as ensuring diffused flow, managing invasive species, and pest control will be included in the BPDP. Page 8 of 18 4, K. Manitoring Reports for Riparian c„sse. Credo+ c3r Nu mann nrf.e+ r.ea:+. Reporting criteria of the riparian buffer restoration and enhancement shall be based on the Carolina Vegetation Survey (CVS) - EEP Protocol for Recording Vegetation Level 2 Plot Sampling 29nly v_Version 4.0 or any updated versions of this protocol in place at the date of acceptance of the BPDP. The Sponsor shall submit to the DWR an—an annual monitoring report no later than December 31 of each year for a minimum of five consecutive years after the first full growing season. This report will describe the conditions of each Bank Parcel, including an evaluation ofthe performance standards of the vegetation contained within the approved BPDP. Reports shall contain the following: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 2. A detailed narrative summarizing the condition of the Bank Parcel along with any maintenance or remediation performed that year; and 3. A map, survey, or other figure showing locations of sampling plots, permanent photo points, and location of transects.- Etc.; and 4. Monitoring data, including specific vegetation counts 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 lodgers; and 6. Corresponding verificat letters from designated local governmen on request; and 7. Corresponding Mitiga sfer Certificates upon request; and 8. Proof of performance b Ito cover the n xt monitoring year (when applicable). Contingency Plans/Remedial Actions 4L. In the event a Bank Parc I fails to achieve the 4iwGPqq-* performance criteria described in this Instrument and the approved BPDP, the Bank Sponso all develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcels and the Bank. NRED degree medial actions required, the DWR may modify the monitoring period VII. CALCULATION OF MITIGATION Riparian Buffer Credits A. All Riparian Buffer Creetermined based on the ratios and percentages provided in 15A NCAC 026 .0295 (m) and in). B._Riparian buffer restoration on the Bank Parcel as defined in 15A NCAC O2B .0295, may be used for either Riparian Buffer Credit or Nutrient Offset Credit but not both. C. Riparian buffer enhancement on the Bank Parcel. as described in 15A NCAC 02B .0295 (0)(6). can be used for only Riparian Buffer Credit. 9,D. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (0)(5) and defined in 15A NCAC 02B .0295 (b). can be used for only Riparian Buffer Credit. E. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. Page 9 of 18 F. Pursuant to 15A NCAC 02B .0295 (1)(6)(B), "Buffer mitigation credit shall not be generated within wetlands that provide mitigation credit required by 15A NCAC 02H .0506". G. Riparian wetlands present on the Bank Parcel that are restored or enhanced as part of the approval of the Cape Fear 02 Umbrella Stream and Wetland Mitigation Bank, and are present within the top of the stream bank and extend out to a maximum of 200' perpendicular to the stream, may be used for either Riparian Buffer Credit or Wetland Mitigation Credit, but not both. Performance standards must comply with those in 15A NCAC 0213 .0295 to be approved for buffer mitigation credit. Nutrient Offset Credits Jot H. he acreage of Nutrient Offset Credit generated from restoration or enhancement as described in Item I of Section IV of this Instrument, swill be determined by applying'"n ' the applicable ratio as provided in I15A NCAC 02B .0295 (m) For a Restoration Site and lEnhancement Site. �11 - - riparian areas proposed for nutrient offset credits must be a minimum of fifty (50) feet from the ` top of the stream bank. C- 1. Nutrient Offset Credits cannot be achieved on the Bank Parcels in areas w ere preservation activities are performed where enhancement is ro osed under 15A NCAC 02B .0295 o)6 D. NutraeRt Offset Gredit may he achieved threugh rPqtArRtiAR Af the ripariaR area ad;----, W i .,f 200 fPPt A all gidpq .,f the s rfa G.... ater i i J. Nutrient Abatement of Restored Riparian Areas on Agricultural Lands: The Sponsor and DWR agree to the following-: IL 1. As Fequired YRderPursuant to the Jordan Trading Rule Item 15A NCAC 02B .0273_(2)(a), load reductions eligible for credit are only those that exceed reduction needs calculated by applying the strategy sub -watershed percentage reduction goals as provided in 15A NCAC 02B .0262_(5). For the Haw aRiver Rd peF WeFyppg. "'g••' Wepe Sub -watersheds, this requirement results in a reduction of credits yielded per acre for restored riparian buffers when compared with the credit given in other river basins. Table 1.0 below lists the generated credit per acre of restored riparian buffer for eaek+the JerdarFHaw-River Sub - watershed. Table 1.0 —Generated credit yield for forest buffer restoration and enhancement by Jordan Sub - watershed Credit Generated (lbs. / 30 yrs. / ac.) Jordan Lake Sub -watershed Nitrogen Page 10 of 18 Phosphorus Commented [MK16]: Note we are not saying it complies with (n), which is where the widths determine the % of full credit Commented [BJ17]: This does not apply to nutrient offset credit Commented [MK18R17]: It does if you plan to generate nutrient offset credits using riparian restoration per the method allowing 2273. Since we don't have a rule for how to generate nutrient offsets, we require the ratios to be determined just as they are in M. Therefore, Restoration will be 1:1 and Enhancement will be at 2:1. It's always been this way. And the MBI/UMBI is where we agree on this policy. Commented [MK19R17]: I will offer some language change for you to consider. Commented [MK20]: Note, this term does not include areas proposed as "enhancement" under (o)(6) Commented [MK21]: Again, this is also a policy in order to receive NOC using the method. Commented [MK22]: Not needed, because the viability letters address all of that. I ,...,,.r nom,..., W epe 2—, n� 146 40 Haw River 2,249.36 143.81 K__As required under Jordan Trading Item 15A NCA 02 .0273 (2)(d)(i), the party seeking to sell credits must account for differences in instr trient losses between the location of the reduction need and excess loading reduction bei delivered to the affected area of Jordan Lake. Attachment B produced the delivered Jordan Lake Total Nitrogen (TN) and Jordan lake Total Phosphorous (TP) credit yields per acre of buffer restoration by each Jordan Lake 14 -Digit HUC sub -watershed. the acreaee of rioariah restoration or en Instrument for Total Nitrogen (TN) and Total Ph rus (TP) are provided in Table 2.0 below using Attachment B for reference. -The amount of delivered credits for each Bank Parcel will be led in the BPDP for each Bank Parcel. RRa are prgvmelpa mR A4arh...PR R A m ...d (_If dRtA .,i the 14_nigat WIJG Sub watershedg of are avagable-en4ne-at--. Table 2.0- Delivery Factors generated at the site of the nutrient reduction activity and the credit delivered to Jordan Lake. The -Rank C... tiger shall refer t., A#ach.. pnt R for determining delivered Grt dmt in the Jordan Lake %Nat..rgh Pd Page 11 of 18 &.L.The Sponsor and DW R agree the methodology and calculations for determining nitrogen and total phosphorous reduction, associated with restoration or enhancement of riparian areas as described in Item I of Section IV of this Instrument, shall be fixed as part of the approval of eae# i3R412this Instrument and each individual BPDP, with the fixed amount not changing during the development or credit release schedule for each Bank Parcel. This Spa VIII. CREDIT I A. Credit R ase: Upon submittal of all appropriate documentation by the Sponsor, and subsequent approv WR,- it is agreed that the mitigation credits associated with thewith each individual Bank Parcel will become available for sale 4}to a third party in accordance with the following credit release SIV Table 23.0- Credit Release Schedule for Riparian Buffer & Nutrient Offset Credits Rank Task Project Milestone % Credit Available for Sale 1 UMBI and BPDP Approved by DWR, Conservation Easement Recorded* and 20 Financial Assurance Posted 2 Mitigation Site Earthwork, Planting and Installation of Monitoring Devices 20 Completed 3 Monitoring Financial Assurance Posted and Approval of As -Built Report 10 Page 12 of 18 IX. 4 Monitoring Report #1: Approved by the DWR** 10 5 Monitoring Report #2: Approved by the DWR** 10 6 Monitoring Report #3: Approved by the DWR** -510 7 Items B(1) of Section X in this Instrument has been completed and approved 5 by DWR No remaining credits will be released until Task 7 has been satisfied 8-7 Monitoring Report #4: Approved by the DWR** 5 9 Monitoring Report #5: Approved by the DWR** and final it by DWR 10 has been conducted Total 100% * For specification, please see Section V in this Instrument dmmw ** DWR approval provided upon a determination that the site is meetin uccess criteria contained within the approached approved BPDP B. DWR may modify the credit release schedu ed on the information tted or the order in which required information is received,_ DWR will notify the Sponsor of a dification to the credit release schedule. PROCEDURE FOR DEBITING AND CREDITIN Credit Ledger A. The Bank Spon all maintain a credit ledger for each mitigation type for each Bank Parcel under this Instrument: Credit ledgers shall provide the accounting for buffer mitigation credits in square feet and acres, and nutrient offset credits in pounds and acres. B. 4ich credit ledger shall be submitted on a separate 8 % in. x 11in. spreadsheet with legible font style and font size. All ledgers shall be submitted using the templates provided in Attachments EC - and g -F This I -instrument or any updated versions to these templates as provided by DWR. Credit Processing C. C—Riparian Bua � a Ni trmt-nt Ofr�,.+ Cfed+ generated on theseis Bank Parcels fn -4 be- f .tws .are ed to offset authorized buffer impacts within the Haw River Sub - watershed of Jordan L e, as defined in 15 -AM NICAMC ma .0262, in accordance with 15A NCAC 02B .0295 C- D. Nutrient Offset Credits generated on these Bank Parcels Gag-eny—beare provided to offset nutrient loadines within the Haw River Sub -watershed of Jordan Lake in accordance with 15A NCAC 0213 .0240 &.-E.4—Available mitigation credits (credits that have been released by DWR but not sold by the Sponsor) that are generated from riparian buffer restoration- and enhancement, as defined in 15A NCAC 02B .0295 (b) on agricultural Ian-eFedit as defiRed R I— ^. NQ44 ^'Q 099 (b) and described Page 13 of 19 in 15A NCAC 02B .095 L}), can be converted and transferred from Riparian Buffer Credits to Nutrient Offset Credits and from Nutrient Offset Credit to Riparian Buffer Credits upon written approvalfrom DWR. Ratiesand RtageseffiJlereditwall beapplied teRi aFia Buffercr a+ aGGeFdiRg tA I&A. NQA4 020 0295 (h) and (a) and FatieS Will be applied te PlutFieRt Q4qPt CFPditq aGG9FdiRg W 1-5.A. Rrnr 026 .0295(m) F. Riparian Buffer Enhancement and Preservation credits generated for mitigation under 15A NCAC 02B .0295 (o) R. ^-;^^ R„ff Pres p,4at;en r.,.a;+ are not transferrable into nutrient offset credits. 4--G.The Bank Sponsor shall obtain written verification of r mitigation required from the delegated local government in the Haw River Sub-wate rf DWR prior to debiting Riparian Buffer Credit from the individual Bank Parcel. G H. The Bank Sponsor shall obtain writt lfication of nutrient offset need from a designated local government in the Haw Ri -watershed prior to debiting Nutrient Offset Credits from the individual Bank Parcel. I. Restoration Systems cannot convert any area slated to generate wetland mitigation credit to riparian buffer credit unless the A69€USACE has determined that the area will not generate wetland mitigation credit. Therefore, only riparian area (top of bank — 200') adjacent to the streams on any of the four (4) Bank Parcels, that comply with 15A NCAC 02B .0295 and fail to qualify to generate wetland credit may be viable for generating riparian buffer credit. However, any credits converted and transferred from the Restoration Systems' Cape Fear 02 Umbrella ®Stream and Wetland Mitigation Bank to the Restoration Systems' Haw -River Sub -watershed — Phase One Umbrella Mitigation banking instrument in the Cape Fear River Basin for Riparian Buffer and Nutrient Offset Mitigation Credits, cannot be converted and transferred back to the Restoration Systems' Cape Fear 02 Umbrella Stream and Wetland Mitigation Bank. J. The Sponsor must provide DWR with a written acceptance letter from the ACOE accompanied by supporting documents, for any wetlands that they want removed from the wetland mitigation bank. K. After each Bank Parcel Closure has commenced, which is described in Section X ofthis document, the Bank Sponsor will be unable to add mitigation credits to the Restoration Systems' Haw -River Sub -watershed — Phase One Umbrella Mitigation banking instrument in the Cape Fear River Basin for Riparian Buffer and Nutrient Offset Mitigation Credits from the Restoration Systems' Cape Fear 02 Umbrella Stream and Wetland Mitigation Bank. , - Commented [MK23]: On Name Bank Parcel, Name Bank Parcel, etc.. Page 14 of 18 that it ..tPRdq r.,PARVPrt Rte RiPaFiaR BUffer CrPdirq ..a be trRRgferrPa iRtA the Ri,xp. RRRRk• CARfirMRtiAR .,f FlAtifi PRti R r., the ACDF chill be pre .ided r., n\A/D %yith the request fer L. All credit and debit transactions for each Bank Parcel under this Instrument shall be accurately depicted in the credit ledgers. The Sponsor shall provide DWR accurate credit ledgers for each Bank Parcel every thirty (30) days. 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 that have been released have been sold. Mitigation Credit Transfer Certificates _ �.M.AII credit sales will include ajf Mitigation Credit Transf ificate ("Certificate") that is required to b#e provided to the buyer of Riparian Ru#pr Buffer an r Nutrient Offset ccredits, that will include, at a minimum, the following information; 1. Bank Details: (1) Ssponsor Name, (2) Bank Parcel n e ^f the appreved baRkiRg ^stru .,p^ ^^n* as it appears aR-# in this- Instrument 49G447 _and (3) as at appeaFs eR the QP^P and (4) DWR project nuWer for the BPDP. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 - when ";applicable) plicable) amount of nitrogen credits purchased in pounds and PARtiRlia*i^^n nfirmation from the designated local government of the amount required, (4 —when amount of phosphorous edits purchased in pounds and confirmation from e designated local government of the amount required, and (5 - when applicable) ount of Riparian Buffer C edits purchased in square feet and the ^^** ^^ mation from DWR or the local government of the amount required. 3. Project Details: (1) project name as it appears on DWR or local government permits and/or certifications, (2) 14 -digit HUC_L3_-And-the sub -watershed fey -within the Jordan Lake NwtiaieRt Strategy) (4) the nutrient strategy applicable to the project -4,(5 - when applicable) designated local government requiring Nutrient Offset Credits, and/or (6) DWR authorization number or delegated local government requiring Riparian Butter Credits for this project. J.N. If the DWR determines the Bank is operating at a deficit (e.yRg. the Sponsor is closing on sales and/or transferring credit that is not available), or the Bank is selling credits out of compliance with statutes, rules or this Agreement, the sale/transfer of credits will immediately cease, and the DWR, in consultation with the Sponsor, will determine what remedial actions are necessary. Page 15 of 18 Commented [MK24]: Before I can approve this, you will need the ask the USACE for approval. This language was inserted by Andrea Hughes for the Falling Creek Bank Once she has emailed me her approval of this language, I will accept it for this Instrument. Commented [MK25]: This cannot be open ended. RS needs to tell both parties which Bank Parcels this section applies to. Because the BPDPs approved under this Instrument will be required to have language in them, figures, maps, tables, etc showing everything that is proposed for wetland credit and what acreages and credits would be generated if converted into buffer. X. BANK PARCEL CLOSURE A. Bank Parcel Closure shall be identified as the event when the Sponsor is relieved of all of -its responsibilities to the Bank Parcel and there are no mitigation credits left to sell. B. Bank Parcel Closure shall commence only after all A 1 the following events have occurred; 1. Transfer or assign the conservation easement and all of -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 monitoting reports submitted and approved by DWR. 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 norm\businesshe Sponsor and the landowner shall grant permission to the Director of DWR, epresentative of the Director of DWR to enter the property containing the Bank Parcel(s). B. Amendments: This Banking Instrument may be amended or modified only with written approval of all signatory p C. Any transfer a Spons s rightsNoroAgas%out7his Instrument or any other agreement refe in this Instrument to a third party must be approved by DWR prior to the transfer. D. Fordule e• Aft 100%of all of the a been released accordingto the credit release scection VIII and confirmation h een received b the DWR that the Conservation Eas ent has been successfully assigned in compliance with Item H of Section VA#er Q. ', o .,.,.'� ��' rig""^, the Sponsor will not be re onsible for Bank failure that is attributed to natural catastrophes including but not limite 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 of the credits have been released according to the credit release schedule in Section VIIIARRk PaFrpl 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, 4.2. Issuance of Mitigation Determinations, Page 16 of 18 -2-.3. BPDP review and approval of items listedo in Section V of this Instrument, -3-.4.^^^^. o,.�.^- ^AAs -Built report review and approval of items listed in Section VI of this Instrument, 45. A,; A-&& Monitoring Report review and approval of items listen in Section VI of this Instrument, -5-.6. Credit Ledger review and approval of items listen in Section IX of this Instrument, 6-.7. Certificate review of items listerld in Section IX of this Instrument and cross analysis to credit ledgers and, 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 the Rank Ithk'*�'"*�k Instrument: This Instrument will become valid on the date of the last party's signature. H Specific Language of this R^"vm�lnstrument Shall Be Controlling: To the extent that specific language in this document chanrges, 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 languagew' in the Instrument shall be controlling. OPP 4-J. 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. 150 B. ._This Agreements g upon the parties and%enZo knowingly, intelligently; and voluntarily. 1K. N tices: All NoticeNan er communication which may be or are required to be given orf made Zany 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 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 specifie W ritten notice delivered in accordance herewith. If to Bank Sponsor: Restoration Systems, LLC 1101 Haynes Street Suite 211 Raleigh, NC 27604 If to DWR: NC Division of Water Resources Atten: 401 & Buffer Permitting UPABranch 1617 Mail Service Center Raleigh, NC 27699-1617 K.L. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. RESTORATION SYSTEMS, LLC Page 17 of 18 By Title: Date: NORTF OF WA Page 18 of 18 DIVISION