20070747 Ver 1_Signed MBI_Flat SwampV1_20171207

FLAT SWAMP NEUSE RIVER RIPARIAN BUFFER AND NUTRIENT
OFFSET MITIGATION BANKING INSTRUMENT
I. PREAMBLE
This Mitigation Banking Instrument ("Banking Instrument"), is for the
establishment, use, operation, and maintenance of the Flat Swamp Neuse
Buffer and Nutrient Offset Mitigation Bank ("Bank") and is made and
entered into by and among GreenVest/Flat Swamp, L.L.C. (GV/FS) and the
North Carolina Department of Environment and Natural Resources -Division
of Water Quality (DWQ).
GreenVest Flat Swamp LLC owns fee simple title to 386 acres ("the
Property") in Craven County, North Carolina within the Neuse River Basin
upon which the Bank will be established.
The purpose of the Bank is to improve water quality through the restoration
of forested riparian buffers within the Neuse River Basin in the State of
North Carolina, United States Geological Survey (USGS) including
Hydrologic Unit Code (HUC) 03020202. The goal of improving water
quality will be achieved by restoring 293.69 acres of agricultural fields to
riparian buffer dedicated to Neuse Nutrient Offsets of which 19.50 acres of
riparian buffer would be dedicated to Neuse Buffer Credits. This objective
of this document is to establish Nutrient Offset Credits (NOCs) and Neuse
Buffer Credits (NBCs) to provide mitigation to third parties, public or
private, within the Neuse River Basin, and/or to sell resulting credits to third
parties public or private.
II. AUTHORITY
The Bank will be used to provide Nutrient Offset and Neuse River buffer
mitigation in accordance with the requirements of:
15A NCAC 2B .0233 (Neuse Buffer Rule);
15A NCAC 2B .0234 (Wastewater Discharge Requirements);
15A NCAC 2B .0235 (Basinwide Stormwater Requirements);
15A NCAC 2H .0506(h) (NC Stream, Wetland and Buffer Mitigation);
15A NCAC 2B .0240 (Nutrient Offset Payments), under such authority as
established in SL 2007-438 and any amendments thereto.
All activities will be consistent with rules adopted by the Environmental
D l � @ f„rkAanagement Commission and all other applicable authorities.
MAY 2 9 2009
DENR - WATER QUALITY
WETLAND: AND STORMi4'ATER BRANCH
Page I I

III. ESTABLISHMENT OF BANK PARCEL(S)
A. Portions of the Property, hereinafter referred to as the "Bank Parcel," will be
subject to a conservation easement or restrictive covenant as described in
Section III -E and included in the Bank Parcel Development Package
("BPDP"). The BPDP contains detailed information concerning site
location, existing conditions, proposed restoration activities, monitoring and
maintenance plans, financial assurances [III(D)], and associated mitigation
potential (including credit generation, service area, and accounting as
appropriate for each regulatory authority cited above).
B. GV/FS agrees to perform all necessary work, in accordance with the
provisions of this Banking Instrument, to establish and/or maintain riparian
buffer and nutrient offset buffer until it is demonstrated to the satisfaction of
the DWQ that the Bank Parcel complies with all conditions contained
herein, or until all credits are sold, whichever is later.
C. GV/FS 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,
GreenVest/Flat Swamp, LLC shall provide a Performance Bond, Letter of
Credit or other form of financial assurance acceptable to DWQ from a
surety that is rated no less than an "A-" as rated by A.M. Best. The Financial
Assurance amount shall be 125% of the estimated cost for implementation
of the restoration plan included in the BPDP, but no less than $100,000.00.
After completion of the restoration/construction, a Monitoring Bond will be
substituted for the initial financial assurance vehicle. The Penal Sum of said
Monitoring Bond shall be for two times the estimated cost to implement the
monitoring and maintenance plan but no less than $100,000.00 in amount.
The Monitoring Bond shall be in effect for a period of five (5) years.
E. Real Estate Provisions: Prior to the certification of any credits, GV/FS shall
record in the Craven County Register of Deeds Office 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. GV/FS
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, GV/FS 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 a DWQ approved land trust or non-profit group
to be held in perpetuity. (Please refer to the BPDP for a sample conservation., ;; 5
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easement.)
F. As -Built Reports: GV/FS agrees to submit an as -built report for each Bank
Parcel within 30 days after completing the construction/establishment of the
project. The as -built report shall describe in detail any deviation from the
BPDP. In addition, the as -built report shall document finished grades,
planting details, and surface and groundwater elevations, as appropriate.
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Maintenance Provisions: GV/FS agrees to perform all necessary work to
maintain the Parcel(s) consistent with the maintenance criteria established in
this instrument. GV/FS shall continue such maintenance activities until all
credits are sold or the maintenance and monitoring provisions are completed to
the satisfaction of DWQ. Deviation from the approved BPDP shall be subject to
review and shall require written approval by DWQ or its designee.
B. Monitoring Provisions: GV/FS agrees to perform all necessary work to monitor
the Bank Parcel to demonstrate compliance with the Success Criteria
established in this Banking Instrument specific to the conditions of the attached
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 reference site and from reference literature
that details native species. A list of Character Tree species for this project is
detailed in a planting plan and planting schedule within the 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 the Guidelines 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 after five (5) years. 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 shall be performed with tree species approved by DWQ.
Supplemental planting shall 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
shall 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 (see BPDP). Visual estimates of the percent
cover of herbaceous species and photographic evidence shall be reported for
informational purposes. Visual observation of streambank stability shall also be
made. Areas of significant bank erosion shall be repaired through matting and/or
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vegetative planting.
D. Monitoring Reports: GV/FS shall submit to the DWQ an annual monitoring
report, no later than December 31 each year for five (5) consecutive years after
the first full growing season, describing the conditions of each Bank Parcel and
relating those conditions to the success criteria. Reports shall 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 the location of sampling plots,
permanent photo points, location of transects, etc.;
4. Monitoring data, including specific vegetative counts and photographs;
and
5. A copy of the Bank credit/debit ledger.
E. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
success criteria described in this instrument, GV/FS 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., GV/FS is selling or transferring credits not yet
available), the sale/transfer of credits shall immediately cease, and the DWQ, in
consultation with GV/FS, will determine what remedial actions are necessary to
correct the situation.
V. OPERATION OF BANK
A. Nutrient (Nitrogen (N)) Abatement of Restored Riparian Buffer:
GV/FS and DWQ agree that the pounds of nitrogen offset per acre of
restored riparian buffer shall be two thousand two hundred and
seventy three point zero two (2,273.02 lbs N/acre) as established by
the DWQ and applied to existing riparian buffer -based nutrient
abatement sites across the State of North Carolina.
If additional parcels are added to the bank in the future, GV/FS and DWQ
further agree that the amount of nitrogen offset per acre shall be determined at
the time of approval of individual Bank Parcel Development Packages per
DWQ policy at that time, with the approved amount not changing during the
development and credit release schedule of each parcel.
Riparian Buffer: GV/FS and DWQ agree that the credit ratio shall be
a 1:1 for every acre of Riparian Buffer restored.
B. Establishment and Release of Credits: Upon submittal of all
appropriate documentation by GV/FS, and subsequent approval by
DWQ or its designee, it is agreed that the mitigation credits
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associated with this Bank will become available for sale to a third
party in accordance with the following schedule:
Table I —Buffer Credit Release Schedule
Task
Project Milestone
% Credit
Available
for Sale
1
Mitigation Banking Instrument signed, BPDP Approved,
Conservation Easement or Restrictive Covenants Recorded
and Performance Bond Purchased
20
2
Mitigation Site Earthwork, Planting and Installation of
Monitoring Devices Completed
20
3
A rovaI of As -Built Report and Monitorina 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%
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 .0233 (Neuse Buffer Rule), 15A NCAC 2B .0234
(Wastewater Discharge Requirements), 15A NCAC 2B .0235
(Basinwide Stormwater Requirements), and 15A NCAC 02B .0242
(Mitigation Program for Protection and Maintenance of Existing
Riparian Buffer); 15A NCAC 2H .0506(h) (NC Stream, Wetland and
Buffer Mitigation), and 15A NCAC 2B .0240 (Nutrient Offset
Payments) under such authority as established in SL 2007-438 and
any amendments thereto provided such use has met all applicable
requirements and is authorized by the appropriate authority and any
others as deemed appropriate by DWQ.
D. Procedure for Debiting or Crediting the Bank: GV/FS shall maintain 2
credit ledgers: (1) one accounting for Nutrient Offset Credits (in
square feet), which are generated by having buffer areas both 0-200
feet in width and >51 feet in width, and (2) one for Neuse Buffer
Restoration Credits, which are generated by having buffer areas 50
feet from top of bank adjacent to NCDWQ jurisdictional streams
subject to Neuse River buffer regulation (15A NCAC 2B .0233). The
ledgers (see the BPDP) shall record the area of available area for each
credit value and all associated debits and credits. GV/FS reserves the
right to amend this MBI post construction. No debits or credits to the
ledger shall be made without the written concurrence of the DWQ and
GV/FS. All written concurrences shall be kept in the ledger. The
accounting and tracking presented in the ledgers and overseen by
DWQ must be sufficient to (1) allow for accurate tracking of debits
and (2) prevent "double-dipping" of the same. All correspondence
related to credit transactions will be forwarded to DWQ for vile via
electronic transmission.
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VI. OTHER PROVISIONS
A. GV/FS 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 GV/FS, prior to inspection of Bank.
B. Force Majeure: GV/FS 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 GV/FS. DWQ must
concur in writing that a. force majeure event has occurred. If such an event
occurs before the final sale of all credits, the GV/FS shall take remedial
action to restore the property to its condition prior to dhi-s 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 GV/FS only to the extent necessary and appropriate, as
determined by DWQ in order to offset authorized impacts to buffers or to
satisfy nutrient offset buy down requirements imposed during land
development activities and satisfied through payment into the Flat Swamp
Bank.
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 GV/FS
field personnel and then, if not resolved, raised to the level of the individual
signatories to the Banking Instrument 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 shown below, or at such other addresses
as specified by written notice delivered in accordance herewith.
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If to GV/FS: 1001 Capability Drive, Suite 312
Raleigh, North Carolina 27604
If to DWQ: 2321 Crabtree Blvd, Suite 250
Raleigh, North Carolina 27604
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.
GreenVest/Flat Swamp, LLC:
By:
Name: Douglas Lashley
Title: Managing Member
Date:
North Carolina Department of Environment and Natural
Resources: 'vision of Water Quality:
By:
I
Name:
Title: �C t/GC' (� V
Date: /( �'/p
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