HomeMy WebLinkAbout20090858 Ver 1_CPF Riparian Buffer Bank (2)_20090615rV?
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AGREEMENT TO ESTABLISH THE CAPE FEAR RIPARIAN BUFFER AND Q 9 - 0 8 5 8
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 theCape Fear River Deleted: Earthmark Mitigation Services
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.
2. 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
n
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 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
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 arcel. This Banking-- - Deleted: sites
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Instrument does not qualify or substitute for such authorization. - - ------ -
D. Financial Assurance Requirements: Following approval of the BPDP, AM 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 Vm 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 eir ability to provide nutrient abatement to waters of the Cape_ „-
Fear River Bas in, 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.
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F. 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 inSection III-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 'arcel as-described- in the -. `Deleted: Site
BPDP or each Bank 'arcel until such time as DW determines that_ the success - -- - -
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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 shall be_ submitted- annually and _shall - - -- Deleted: Will
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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 Parcels and all
regular maintenance activities;
3. Appropriate topographic urve y showing location of -sampling plots, - Deleted: maps
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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. Qevending on the degree of remedial _- Formatted: Font color: Auto
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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 Parcels 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
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Nitrogen Abatement of Restored Riparian Buffer: MAM and DWQ agree ,the ` Deleted: that
pounds of nitrogen offset per acre of restored riparian buffer shall be two
thousand two hundred and seventy three a)aunds per acre (2,273 - lbs/acre), or the `Formatted Not Highlight
approved. and
across the Stat
to ,riparian
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sites
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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 osted 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%
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CDIeieed: current
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(Deleted: as established by the DWQ
Deleted: existing
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Formatted: Indent: Left: 0.5"
_....._...._..----......... --- ........................ ...... ...... - .__........ ..
Deleted: Purchased
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 Program
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 pWQ 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
forpWQ that verifies the permittee has met the mitigation requirement.
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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 ofd 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.,
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.
Deleted: DWQ must concur in writing
that aforce majeure event has occurred.
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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 esolved,_raised, _to the level of the individual signatories_to_the ..--.- Deleted: sensed
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
DWQ must concur in writin that a orc:e rrrcajeure event has occurred
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 Mo,,ensen
.. _ .................. .. . .. .` Deleted: $
I1 to DWQ: DWQ - 401 Oversipht and Express Permitting unit
2321 Crabtree Blvd. Suite 250
Raleip,h, NC 27604
Attn: Mr. Eric W. kulz
Deleted: Ifco DWQ: ¶
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.
ID-ATLANTIC MITIGATION, LI.,C - Deleted: EARTHMARK
Deleted: SERVICES
By: ` -----..-.-.-..--. ............. -.-.... -................. -_...
Name:
Title:
Date:
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES DIVISION OF WATER
QUALITY
By:
Name:
Title:
Date: