20090425 Ver 1_More Info Received_20090406

[JEcoEnginee'ring
A division of The John R. McAdams Company. Inc.
p@12 w%i
APR e 2009
Research Triangle Park, NC
Post Office Box 14005.
.Research Triangle Park,
North Carolina 27709
2905 Meridian Parkway
Durham, North Carolina 27713
800-733-5646
919 287 4262
919 361-2269 Fax
April 3, 2009
Mr. Eric W. Kulz
Environmental Specialist
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604

DENR -WATER OUAUTY
WETLANDS AND STORhrNATER BRANCH
Re: Cape Fear Riparian Buffer and Nutrient Mitigation UMBI
. EMS-08000
Dear Mr. Kulz: .
Per our meeting on March 20, 2009, please find enclosed the final, ready-for-
signature version- of the Cape Fear Riparian Buffer and Nutrient Mitigation
Umbrella Banking Instrument between Mid-Atlantic Mitigation, LLC and the
N.C. Division of Water Quality. I have incorporated the changes discussed.
during our meeting, along with other minor edits for consistency.
Please forward this document as necessary within the Division for final review
and approval. As I am sure you can appreciate, we are anxious to move forward
with this mitigation instrument. Also, if it is decided to place this agreement on
public notice, then I request you please notify us in advance.
I want to thank you in advance for your time and consideration of this matter. If
you should have any questions or need any additional information, please do not
hesitate to give me a call. ,
Sincerely,
THE JOHN R. McADAMS COMPANY, INC.
Brandon R. Finch, PE
Sr. Project Manager
BRF/djh
Enclosure
Cc: Mr. Rich Mogensen - EarthMark Mitigation Services, LLC
wwwoccengrcam I Design Services Focused On Client Success
AGREEMENT TO ESTABLISH THE CAPE FEAR RIPARIAN BUFFER AND
NUTRIENT MITIGATION
UMBRELLA BANKING INSTRUMENT
HUC 03030002
1. PREAMBLE
This Riparian Buffer and Nutrient Mitigation Umbrella Banking Instrument, regarding the
establishment, use, operation, and maintenance of the Cape Fear River Basin Riparian
Buffer and Nutrient Mitigation Umbrella Bank (Bank) is made and entered into by and
among Mid-Atlantic Mitigation, LLC (MAM), acting as the Bank Sponsor, and the North
Carolina Department of Environment and Natural Resources - Division of Water Quality
(DWQ)•
The purpose of the Bank is to:
1. Improve water quality through the restoration of riparian buffer habitat, the
installation of new stormwater best management practices (BMPs), and the
renovation of existing stormwater BMPs within the Cape Fear River Basin in the
State of North Carolina, United States Geological Survey (USGS) Hydrologic Unit
Code (HUC) 03030002.
To provide mitigation for buffer impacts and development (both existing and
proposed) requiring nutrient offset payments within the Cape Fear River Basin,
and to sell any resulting credits to third parties.
II. AUTHORITIES
The Bank will be used to provide nitrogen offset and riparian buffer mitigation in
accordance with the requirements of the following proposed administrative code sections:
1. 15A NCAC 2B .0264 Agriculture,
2. 15A NCAC 2B .0265 Stormwater Management for New Development,
3. 15A NCAC 2B .0266 Stormwater Management for Existing Development,
4. 15A NCAC 2B .0268 Mitigation for Riparian Buffers
5. 15A NCAC 02 .0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement Program
6. 15A NCAC 213 .0270 Wastewater Discharge Requirements, and
7. 15A NCAC 213 .0271 Stormwater Requirements for State and Federal Entities.
8. 15A NCAC 2B..0273 Options for Offsetting Nutrient Loads
All activities will be consistent with permanent rules for the Jordan Water Supply Nutrient
Strategy approved by the Environmental Management Commission and approved by the
North Carolina Office of Administrative Hearings - Rules Review Commission (RRC) on
October 16, 2008 and November 20, 2008.
Any changes to the proposed Jordan Water Supply Nutrient Strategy legislation that occur
during review by the General Assembly will also be adhered to as part of this banking
instrument.
III. ESTABLISHMENT OF BANK PARCEL(S)
A. Each tract of land subject to a conservation easement or restrictive covenants
described in Section III-E (`Bank Parcel") to be included in the Bank shall require a
Bank Parcel Development Package (BPDP), including detailed information
concerning site location, existing conditions, proposed buffer restoration activities or
stormwater best management practice (BMP's) activities, monitoring and maintenance
plans, financial assurances, and associated buffer mitigation/nutrient credit
calculations (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. For each BPDP, MAM agrees to perform all necessary work, in accordance with the
provision of this Banking Instrument, to establish and / or maintain and monitor
riparian buffers or to install and / or renovate stormwater BMPs until it is
demonstrated to the satisfaction of the DWQ that the restored property (buffers) or
installed / renovated BMPs comply with all conditions contained herein, or until all
credits from that Bank Parcel are sold, whichever is later but at a minimum of (5)
years.
C. MAM will obtain all appropriate environmental documentation, permits, or other
authorizations needed to construct and maintain the Bank Parcel. This Banking
Instrument does not qualify or substitute for such authorization.
D. Financial Assurance Requirements: Following approval of the BPDP, MAM shall
provide a Performance Bond from a surety company that is rated no less than an "A-"
as rated by A.M. Best. The Performance Bond amount shall be 100% of the estimated
cost for implementation of the buffer restoration / stormwater management plan
included in the BPDP, but no less than $150,000.00 in amount. After completion of
the restoration / construction, a Monitoring Bond will be substituted for the
Performance Bond. The sum of said Monitoring Bond shall be for 100% of 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
years but may be lowered each year based on the adjusted cost to finish the
monitoring.
E. Property Disposition: Prior to the release of any credits, MAM shall acquire a
permanent conservation easement(s) or record restrictive covenants at the county
clerk's office to the deed(s) on all Bank Parcels to provide protection to the restored
riparian buffer and / or stormwater BMPs in perpetuity from activities that would
impair its ability to provide nutrient abatement to waters of the Cape Fear River Basin,
including B. Everett Jordan Lake. 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 / or stormwater BMPs and
shall be approved by the DWQ prior to the certification of any credits. MAM shall not
grant additional easements, rights 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, MAM 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, non-profit group, or
governmental entity to be held in perpetuity.
Operation and Maintenance Agreements: Prior to the release of any credits, MAM will
provide DWQ with the necessary operation and maintenance agreements for the newly
constructed or renovated stormwater BMPs. These agreements shall be consistent with
the standards adopted by DWQ and shall be approved by the DWQ prior to the
certification of any credits.
G. As-Built Reports: MAM will submit an as-built plan and report for each Bank Parcel
within 30 days after completing the establishment of the buffer and / or construction or
renovation of stormwater BMPs. The as-built report will describe in detail any
deviation from the BPDP. In addition, the as-built report will document the
appropriate aspects of the Bank depending upon the type as follows:
a. Buffer restoration: finished topography, planting details, monitoring device
locations, vegetation plot locations, photo point locations, surface and
groundwater elevations, as appropriate.
b. Stormwater BMPs: outlet structure information, surface area/volume
computations, hydrograph routing information, planting details, monitoring
device locations, photo point locations as appropriate.
c. Boundary Survey of easement area
IV. MAINTENANCE AND MONITORING OF BANK PARCEL(S)
A. Operation and Maintenance Provisions: MAM agrees to perform all necessary work to
operate and maintain the Bank Parcel(s) consistent with the operation and maintenance
criteria established in Section 111-F of this instrument. MAM shall continue with such
activities until all credits are sold and all success criteria have been met. Deviation
from the approved BPDP is subject to review and written approval by DWQ or its
designee.
B. Monitoring Provisions: MAM shall monitor the Bank Parcel as described in the BPDP
for each Bank Parcel until such time as DWQ determines that the success criteria
described below have been met. The monitoring period shall be a minimum of five (5)
years.
Riparian Buffer Restoration
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 stream and from reference literature that details native
species. A list of Character Tree species for each Bank 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 desirable trees per acre after five years. Planted species must
account for a minimum of 30% of the above densities. If vegetative success criteria
are not met supplemental plantings may be required. Supplemental plantings will be
utilized until the required densities have been achieved after five years. Success
criteria 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.
D. Monitoring Reports: MAM 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,
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 Parcel(s);
2. A detailed narrative summarizing the condition of the Bank Parcel(s) and all
regular maintenance activities;
3. Appropriate topographic survey showing 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, MAM shall develop necessary
contingency plans in coordination with the DWQ or designee and implement
appropriate remedial actions for the Bank.
If the DWQ determines that the Bank is operating at a deficit (i.e., MAM is selling or
transferring credit not yet available), the sale/transfer of credits will immediately
cease, and the DWQ, in consultation with MAM, will determine what remedial actions
are necessary to correct the situation.
Construction / Renovation of Stormwater BMPs
F. Stormwater BMP Success Criteria: The success of a stormwater BMP will be based
upon the type and its associated design criteria, as approved by DWQ at time of
submission of the BPDP. For purposes of this agreement, the design criteria shown in
the North Carolina Division of Water Quality Stormwater Best Management Practices
Manual (October 2007), or as amended / updated, and the approved operation and
maintenance agreement from Section III-F of this agreement shall be the basis for
judging the success of a specific device.
G. Monitoring Reports: MAM shall submit to the DWQ an annual monitoring report, no
later than December 31 each year for five years after the initial installation /
renovation of the stormwater BMP, describing the conditions of each Bank Parcel and
relating those conditions to the success / approved design criteria. Reports will be
submitted annually and shall contain the following:
1. A U.S. Geological Survey map showing location of the Bank Parcel(s);
2. A detailed narrative summarizing the condition of the Bank Parcel(s) and all
regular maintenance activities;
3. A copy of the Bank credit/debit ledger.
H. Contingency Plans/Remedial Actions: In the event the Bank fails to achieve the
success criteria described in this instrument, MAM shall develop necessary
contingency plans in coordination with the DWQ or designee and implement
appropriate remedial actions for the Bank.
If the DWQ determines that the Bank is operating at a deficit (i.e., MAM is selling or
transferring credit not yet available), the sale/transfer of credits will immediately
cease, and the DWQ, in consultation with MAM, will determine what remedial actions
are necessary to correct the situation.
V. OPERATION OF BANK.
A. Nitrogen Abatement of Restored Riparian Buffer: MAM and DWQ agree the pounds
of nitrogen offset per acre of restored riparian buffer shall be two thousand two
hundred and seventy three pounds per acre (2,273 lbs/acre), or the amount of nitrogen
offset per acre per current DWQ policy, and shall be applied to riparian buffer-based
nitrogen abatement sites across the State of North Carolina.
MAM and DWQ further agree that the amount of nitrogen offset per acre shall be
fixed as part of the approval of individual Bank Parcels, with the fixed amount not
changing during the development and credit release schedule of the Bank Parcel(s).
B. Nitrogen Abatement of Installed / Renovated Stormwater Best Management Practices:
MAM and DWQ agree that the pounds of nitrogen available for credit release from
newly renovated or constructed stormwater BMPs shall be based upon the design
calculations / nitrogen export calculations submitted to and approved by DWQ as part
of the BPDP.
C. Establishment and Release of Credits: Within thirty (30) days upon submittal of all
appropriate documentation by MAM, 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 schedules:
Table I - Credit Release Schedule for Riparian Buffer Restoration
% Credit
Available
Task Project Milestone for Sale
Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants
1 Recorded and Performance Bond Posted 20
Mitigation Site Earthwork, Planting and Installation of
2 Monitoring Devices Completed 20
3 Approval of As-Built Report and Monitoring Bond Posted 10
Monitoring Report #1 to DWQ Approval (meets success
4 criteria 10
Monitoring Report #2 to DWQ Approval (meets success
5 criteria 10
Monitoring Report #3 to DWQ Approval (meets success
6 criteria 10
Monitoring Report #4 to DWQ Approval (meets success
7 criteria) 10
Monitoring Report #5 to DWQ Approval (meets success
8 criteria) 10
Total 100%
Table 2 - Credit Release Schedule for Stormwater Best Management
Practices
% Credit
Available
Task Project Milestone for Sale
Bank Parcel Development Package Approved by DWQ,
Conservation Easement or Restrictive Covenants
Recorded and Performance Bond Posted, Operation and
1 Maintenance Agreement Approved b DWQ 25
Installation / Renovation of Stormwater BMP in accordance
2 with approved design plans completed 25
3 Approval of As-Built Package 50
Total 100%
D. Projects Eligible to Use the Bank: Projects eligible for utilization of the credits are
those requiring authorization under the requirements of the following administrative
code sections:
1. 15A NCAC 2B .0264 Agriculture,
2. 15A NCAC 2B .0265 Stormwater Management for New Development,
3. 15A NCAC 2B .0266 Stormwater Management for Existing Development,
4. 15A NCAC 2B .0268 Mitigation for Riparian Buffers
5. 15A NCAC 02 .0269 Riparian Buffer Mitigation Fees to the NC Ecosystem
Enhancement P rogram
6. 15A NCAC 2B .0270 Wastewater Discharge Requirements, and
7. 15A NCAC 2B .0271 Stormwater Requirements for State and Federal Entities.
8. 15A NCAC 2B. .0273 Options for Offsetting Nutrient Loads
E. Procedure for Debiting or Crediting the Bank: MAM 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 and from the installation /
renovation of stormwater BMPs. The ledgers shall record the area of available buffer
credits and pounds of available nitrogen credits for each Bank 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. All debits or credits
shall be entered into the ledger and notification provided to DWQ or its designee
within thirty (30) days of each transaction. All transactions shall be kept in the ledger.
Key documents are the Credit Reservation Letter confirming the credits are available
for transfer and debiting and have been legally contracted and reserved for a specific
project. The final document for verification and transfer is the Transfer Certificate
that is issued to DWQ along with the updated credit ledger after the purchaser's permit
application is approved and permittee fully funds the purchase of credits. This is the
final documentation for DWQ that verifies the permittee has met the mitigation
requirement.
F. Geographical Service Area (GSA): The GSA is the designated area wherein a bank
can reasonably be expected to provide appropriate riparian buffer and/or nutrient
offsets for impacts due to development activities. The GSA for this Bank shall include
the Cape Fear River Basin Hydrologic Unit 03030002 in North Carolina.
VI. OTHER PROVISIONS
A. MAM 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 MAM, prior to inspection of Bank.
B. Force Majeure: After the sale of all available credits, MAM will not be responsible for
Bank failure that is attributed to natural catastrophes such as but not limited to flood,
drought, disease, regional pest infestation, etc. that are beyond the control of MAM.
However, while MAM may not have control of such events, if an event occurs before
the final sale of all credits, MAM shall take remedial action to restore the property to
its condition prior to this 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 MAM only to the extent necessary and appropriate, as
determined by DWQ and MAM, in order to offset authorized impacts to buffers or to
satisfy nutrient offset buydown requirements imposed during land development
activities and satisfied through payment into the affected Bank Parcel.
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 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 MAM field personnel and then, if not
settled, 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 set out below, or
at such other addresses as specified by written notice delivered in accordance
herewith.
If to MAM: Mid-Atlantic Mitigation, LLC
1960 Derita Road
Concord, North Carolina 28027
Attn: Mr. Richard Mogensen
If to DWQ: DWQ - 401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Attn: Mr. Eric W. Kulz
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.
MID-ATLANTIC MITIGATION, LLC
By:
Name:
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES DIVISION OF WATER
QUALITY
Name: