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Home My WebLink AboutSigned MBI_Pantera BUFFERDocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director TO: Richard E. Rogers, Jr Director NORTH CAROLINA Environmental Quality February 26, 2024 FROM: Katie Merritt Nutrient Offset & Buffer Banking Coordinator THROUGH: Stephanie Goss Supervisor — 401 & Buffer Permitting Branch SUBJECT: Division Approval of the Pantera Mitigation Banking Instrument in the Neuse River Basin for Nutrient Offset and Buffer Mitigation Credits pursuant to the Neuse River Nutrient Management Strategy for Environmental Banc & Exchange, LLC The attached final Mitigation Banking Instrument (MBI) between Environmental Banc & Exchange, LLC and the Division of Water Resources was placed on public notice and made available for public comments on February 8, 2024. The public comment period ended on February 22, 2024, and no comments were received on the draft MBI. DEQ Legal counsel assisted with and agrees with the final template for which all our MBI documents are drafted. DWR staff (Katie Merritt) has reviewed the attached final MBI and it is ready for your review. If you approve of the MBI, please sign on page 17 and return the document to Katie Merritt for final execution. DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 AGREEMENT TO ESTABLISH THE PANTERA MITIGATION BANKING INSTRUMENT IN THE NEUSE RIVER BASIN FOR NUTRIENT OFFSET AND RIPARIAN BUFFER MITIGATION CREDITS PURSUANT TO THE NEUSE NUTRIENT MANAGEMENT STRATEGY TABLE OF CONTENTS I. PREAMBLE....................................................................................................................... 2 II. LOCATION AND GEOGRAPHIC SERVICE AREA ...................................................... 2 III. AUTHORITIES.................................................................................................................. 3 IV. ESTABLISHMENT OF BANK PARCEL......................................................................... 3 V. PRE -CONSTRUCTION DOCUMENTATION................................................................. 5 VI. POST CONSTRUCTION DOCUMENTATION............................................................... 7 VII. CALCULATION OF CREDITS...................................................................................... 10 VIII. CREDIT RELEASE SCHEDULE.................................................................................... 12 IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS ........... 13 X. BANK PARCEL CLOSURE............................................................................................ 15 XI. GENERAL PROVISIONS FOR THE BANK PARCEL ................................................. 15 ATTACHMENTS A - Division of Water Resources Authority Document B - Ledger Templates C — Project Credit Table (example) References 1. Nutrient Offset Credit Trading Rule: ft$i'r(f�t�t�ic(J14�I/sa%2iDttp2/1cf�i�iGi�#�fli�£1° https://ptW®dichoo#pui t/sugaftL&woytssaahlstafie2roa2a� tvokoto 2. Riparian Buffer Mitigation Rule: 1http9r t�tsG �2ifi�Qi tcCC ��I/Sa%210t$p2/1 f i#�fl1�it1�1° f�'a i11 Ali ii�RCPAU&%- https://MW l-A#a~iplfigg Lvat/sudaftr aWi3sualn 2oa2a oAoto 3. NC Session Law 2019-86 "Nutrient Offset Credits": NUN iA tpmteWgQh '6ki3ibint2owrVit2/HousWs4i812v3.pdf 4. Buffer Interaretation/ Clarification # 2008- 019 for diffuse flow: https://�St��trtah'iFu��i�/�>�er-Mhtt��offat�s��CeAi��eri�le�0� sdl' 5. Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits (November 2019): Ifltt�Y�l��@�t�MQt�it/.6iOQi/�t�/Surf�ii$tt�z4�bQ0�fbk��t�ddVIN1�tt�l�Qht�la ty/ htt ps : //jar®tatito6bepOaTiltfamifion-rbtSti/offset.pdf 6. NCDWR — Methodology and Calculations for Nutrient Reduction on the Bank Parcel: lhttwv/fipnoif lity/ https:// Credit.pdf 1 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 I. PREAMBLE This Pantera Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of the Pantera Bank Parcel ("Bank Parcel"), further identified in Section II, to provide Neuse Riparian Buffer mitigation credits ("Riparian Buffer Credits") and Neuse Nutrient Strategy nutrient load reduction credit ("Nutrient Offset Credits") is made and entered into by and among Environmental Banc and Exchange, LLC 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 02B .0703 and the 15A NCAC 02B .0295, which became effective on April 1, 2020 and November 1, 2015 (References 1 and 2) respectively. The purpose of the Bank Parcel is: A. To restore, enhance, and preserve riparian vegetation adjacent to mitigated streams with the intent to improve water quality, reduce nutrient loads, enhance flood attenuation, and restore wildlife habitat within the Neuse River Basin (8-digit HC 03020201), excluding the Falls Lake Watershed. B. To convert agricultural land uses within riparian areas adjacent to mitigated streams and agricultural ditches into a dense and diverse, hardwood vegetated state with the intent to significantly reduce nutrient loadings associated with agricultural practices into streams. C. To provide buffer mitigation and nutrient offsets and sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits to third parties in the Neuse River Basin, for development (both existing and proposed) or to offset NPDES- permitted wastewater nutrient sources requiring such mitigation or offset. IL LOCATION AND GEOGRAPHIC SERVICE AREA A. The Geographic Service Area ("GSA") is the designated area wherein a Bank can reasonably be expected to sell Riparian Buffer Credits and/or Nutrient Offset Credits for impacts requiring such mitigation or offset. B. The GSA for the Bank Parcel under this instrument is limited to the United States Geological Survey ("USGS") 8-digit Hydrologic Unit Code ("HUC") 03020201 of the Neuse River Basin, excluding the Falls Lake Watershed in the State of North Carolina. C. Sale or transfer of Riparian Buffer Credits shall be limited to the 8-digit HUC 03020201 in the Neuse River Basin, excluding the Falls Lake Watershed, unless otherwise authorized by the DWR or delegated local government in accordance with 15A NCAC 02B .0295. D. Sale or transfer of Nutrient Offset Credits shall be limited to 8-digit HUC 03020201 in the Neuse River Basin, excluding the Falls Lake Watershed, in accordance with 15A NCAC 02B .0703, unless otherwise authorized by the DWR in accordance with Session Law (S. L.) 2019-86. DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 E. Table 1.0 provides site -specific details of the Bank Parcel proposed under this Instrument. Table 1.0 — Bank Parcel Details Bank Parcel 8-Digit USGS Project Named Primary Land Name DWR ID# County Hydrologic Location Receiving Use/s Unit Code Stream 35.3229 - Falling Agricultural Pantera 2022-0452-VI Wayne 03020201 78.1583 Creek fields, mature natural forest III.AUTHORITIES A. The Bank will be used to provide Riparian Buffer Credit and/or Nutrient Offset Credit in accordance with the requirements in the DWR Authority document referenced 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 any new approved North Carolina ("State") statutes and rules for the Neuse Nutrient Management Strategy. C. The selling of credits generated from the Bank Parcel approved under this Instrument, shall be consistent with approved State statutes and rules for the Neuse Nutrient Management Strategy. D. Buffer mitigation and/or nutrient load reduction activities proposed under this Instrument and the corresponding Buffer Mitigation & Nutrient Offset Plan (Plan) to generate Riparian Buffer Credits and Nutrient Offset Credits shall be consistent with State statutes and rules for the Neuse Nutrient Management Strategy that are in place at the time a complete Plan is submitted to DWR. IV. ESTABLISHMENT OF BANK PARCEL A. In accordance with 15A NCAC 02B .0295 and 15A NCAC 02B .0703, DWR has provided a "Site Viability Letter" for the Bank Parcel proposed under this Instrument. The Site Viability Letter is not an approval of the site to generate Riparian Buffer Credits and Nutrient Offset Credits 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 Riparian Buffer Credits and Nutrient Offset Credits. Table 2.0 below outlines when a Site Viability Letter was issued by DWR for the mitigation site proposed under this Instrument: Table 2.0 — Site Viability Letter Details Bank Parcel NC DWR Site Visit Viability Letter Viability Letter Received Expiration Date Pantera August 16', 2022 May 41h, 2023 May 51h, 2024 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 B. A valid Site Viability Letter is required prior to submittal of the Plan. The Site Viability Letter will either expire on the date listed in the table above or upon submittal of an individual As -Built Report to the DWR, whichever comes first. If a Site Viability Letter expires prior to submittal of a complete Plan as described in Section V to DWR, then the Sponsor must submit a formal request to DWR for a new Site Viability Letter for that Bank Parcel. C. The Bank Parcel proposed for inclusion under this Instrument shall require a Plan be submitted to, and approved by, the DWR prior to use of the individual Bank Parcel for buffer mitigation and nutrient offset purposes or for any sale or transfer of any associated credits. The contents of the Plan are provided in Section V. D. This Bank Parcel is slated to be developed in conjunction with the RES Neuse Umbrella Mitigation Bank, and the Pantera Mitigation Site, United States Army Corps of Engineers (USACE) Action ID # SAW-2022-00606, for stream and wetland mitigation. The mitigation plan associated with this Bank Parcel has been submitted to the Interagency Review Team (IRT) for review and approval. E. The Plan submitted under this instrument will be placed on public notice and made available for public commenting for 15 calendar days. F. The Riparian Buffer Credits and Nutrient Offsets on this Bank Parcel will be generated along mitigated stream channels that are proposed for stream mitigation. The Stream Mitigation Plan will be submitted under the RES Neuse Umbrella Mitigation Bank referenced in "D" in this section. Additionally, all activities conducted within riparian buffers and adjacent riparian areas for purposes of generating Riparian Buffer Credits and Nutrient Offsets will be conducted in concurrence with stream mitigation activities and not before. Riparian Buffer Credit on this Bank Parcel may be achieved through restoration, enhancement, and preservation of DWR riparian buffers as they are defined in 15A NCAC 02B .0714, and other riparian areas allowed per 15A NCAC 02B .0295 (n) and (o) where applicable. Riparian Buffer Credits are only attainable if the width of the riparian areas is at least 20 feet from top of banks along streams and at least 30 feet from top of banks along viable ditches when measuring perpendicular and landward from features. Riparian Buffer Credits are attainable to a maximum of 200 feet from tops of banks of streams and a maximum of 50 feet from tops of banks of viable ditches. The viability of features to generate riparian buffer credits is provided in the Site Viability Letter for the Bank Parcel and referenced in Table 2.0 of this instrument. G. The Bank Parcel is intended to provide Neuse Riparian Buffer Credits as follows: 1. Planting hardwood trees on a Restoration Site and Enhancement Site as defined in 15A NCAC 02B .0295(b) adjacent to mitigated streams and viable ditches, unless otherwise approved in the project specific Plan. al DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 2. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295(b) by placing a conservation easement around riparian areas adjacent to mitigated streams as allowed per 15A NCAC 02B .0295 (o). 3. Diffused flow will be maintained onsite to the maximum extent practicable. The Buffer Interpretation/Clarification Memo # 2008-019 may be applied where maintenance of diffuse flow onsite is unattainable. H. Nutrient Offset Credit may be achieved on this Bank Parcel through restoration of the riparian areas adjacent to viable streams and viable ditches, where agriculture was determined by DWR to be the predominant land use. Nutrient Offset Credits are only attainable if the width of the restored riparian areas are at least fifty (50) feet as measured perpendicular from tops of banks along viable streams and viable ditches. The width of the riparian restoration area is measured from the most landward limit of the top of bank or the rooted herbaceous vegetation of streams and ditches and extends landward a minimum of 50 feet and a maximum of 200 feet on all sides of viable features. A conservation easement will be secured to include the tops of all stream channels and ditch banks and will extend out a maximum of 200 feet. The viability of features to generate riparian buffer credits is provided in the Site Viability Letter for the Bank Parcel and referenced in Table 2.0 of this instrument. I. The Bank Parcel is expected to provide Nutrient Offset Credits in accordance with 15A NCAC 02B .0703 as follows: 1. Converting agricultural land uses within riparian areas to non-agricultural land uses by placing a perpetual conservation easement around riparian areas along viable streams and viable ditches in accordance with 15A NCAC 02B .0703 (g) 2. Planting hardwood trees and shrubs on a Restoration Site and Enhancement Site as defined in 15A NCAC 02B .0295 (b) adjacent to viable streams and viable ditches where agriculture has been determined by DWR to be the predominant land -use. 3. Diffused flow will be maintained onsite. The Buffer Interpretation/Clarification Memo #2008-019 may be applied where maintenance of diffuse flow onsite is unattainable, see reference 4. J. The Bank Parcel submitted for review under this Instrument is anticipated to begin construction of stream mitigation activities in Summer/Fall of 2024. V. PRE -CONSTRUCTION DOCUMENTATION Buffer Mitigation & Nutrient Offset Plan A. The Plan submitted under this Instrument shall be submitted to DWR for review and must be approved by DWR prior to any construction on the Bank Parcel. The Plan must describe any changes that have occurred to the site between the date of the Site Viability Letter and the date the Plan is submitted to DWR. The Plan shall include detailed information consistent with the sections below concerning; 1) site location (8-digit HUC is required); 2) existing conditions with current photos; 3) proposed buffer mitigation and nutrient offset 5 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) A Project Credit Table (see Attachment C) showing associated buffer mitigation/nutrient offset 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) service area figure for each mitigation type proposed under this instrument; and 10) all pertinent information including but not limited to permitting, bank stabilization, culvert removal, installation of any utilities indirectly or directly affecting the Bank Parcel, endangered or threatened species, presence of historical sites and an Environmental Data Resources (EDR) report to evaluate environmental risk associated with the land proposed for the Bank. B. The Sponsor will obtain all applicable federal, state, and local documentation, permits, or authorizations needed to construct and maintain the Bank Parcel. This Instrument does not qualify as, or substitute for, such documentation, permit, or authorization. C. Any restoration and/or enhancement activities or proposed construction within stream channels, 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 prior to implementation. The failure of the Sponsor to comply with this requirement will result in a revised or reduced credit release schedule for the Bank Parcel or a denial of the Bank parcel to generate Riparian Buffer Credits and/or Nutrient Offset Credits. All restoration activities must be performed in concurrence with any stream and wetland mitigation activities and not before. D. Requests for deviation from the approved Plan must be submitted to DWR in writing. Written approval from the DWR must be received prior to implementing any deviation from the approved Plan. Property Disposition & Long Term Management E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements at the Wayne County Register of Deed's office that is sufficient to ensure protection, operation, and maintenance of restored riparian buffers and other riparian areas for the duration specified in the approved Plan. F. The form of the conservation easement shall be consistent with the standards employed by the State of North Carolina in the protection of restored riparian buffers and riparian areas and shall be approved by the DWR and USACE prior to the release of any credits. G. 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 and the USACE. H. The Sponsor agrees to 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 Con DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 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. A land trust must be certified under 501(c)(3) of the Internal Revenue Code. Financial Assurances for Bank Parcel Development I. Following approval of the Plan for the 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 Plan . It is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with each annual bond renewal. J. The amount of each Performance Bond shall be 100% of the estimated cost for implementation of the riparian restoration, enhancement, preservation, and other related mitigation activities for the construction of the Bank Parcel as described in the approved Plan. No bond shall be less than $150,000.00 to cover construction costs. K. Alternatively, in lieu of posting Performance Bonds, the Sponsor may elect to construct the Bank Parcel prior to the first credit releases. L. Once DWR has released all credits for completion of all the items listed below, then the Sponsor will be released from its performance obligations under the performance bond required in Item I and J of this section: 1. Instrument and Plan Approved by DWR, Draft Stream and Wetland Mitigation Plan approved by the IRT, Conservation Easement Recorded & assigned according to Item B (1) of Section X in this Instrument & has been completed and approved by DWR, and Financial Assurance Posted 2. All Riparian Earthwork & Mitigation Activities, Planting and Installation of Monitoring Devices completed for the Bank Parcel, easement boundaries adequately marked, all applicable permits obtained. A site visit performed by DWR is required for this task 3. Monitoring Financial Assurance Posted and Approval of As -Built Report; M. To comply with this section, DWR must be the Obligee on all performance bonds. VI. POST CONSTRUCTION DOCUMENTATION As -Built Report A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument and corresponding Plan, to establish, maintain, and monitor Neuse Riparian Buffers or other riparian areas until Item B (1) and (2) of Section X have been satisfied. 7 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 B. Within 30 calendar days after completing the establishment of the riparian buffer mitigation areas, nutrient offset areas, and all stream and wetland mitigation activities have commenced, the Sponsor will submit written notification to DWR documenting that all buffer mitigation and nutrient offset activities have been completed for the Bank Parcel. Failure to submit written notification within 30 days may result in a modified credit release schedule or a delay in the issuance of credit releases. Notification shall include all the following: 1. Short summary of activities completed as required per the approved Plan; 2. Documentation that all stream and wetland mitigation activities have been completed; 3. Figures representing all riparian restoration, riparian enhancement and riparian preservation activities where applicable; 4. Figures representing location of all monitoring plots installed; 5. Detailed planting plan- including type of species planted, density of species planted, and any modifications to the planting plan from what was approved in the Plan; 6. Description of how the conservation easement boundaries were marked for the Bank Parcel; and 7. Any major changes to the conservation easement boundary or to the amount of Riparian Buffer Credits and/or Nutrient Offset Credits from what was proposed in the approved Plan. C. The Sponsor will submit an as -built plan and report for the Bank Parcel after completing the establishment of the buffer mitigation and nutrient offset areas and when all stream mitigation and wetland mitigation activities have commenced. The as -built report will describe any deviation from the approved Plan and will document the following: 1. Riparian restoration and enhancement planting details and other construction activities that were required in the Plan, confirmation that all boundary markers are installed, invasive species control, confirmation of fence installation if applicable, monitoring device locations, vegetation plot locations, and photo point locations. 2. Provide confirmation that the construction of all stream and wetland mitigation activities has been completed. 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 Credits and/or Nutrient Offset Credits in both square feet and acres. 4. As -built map of the mitigation areas showing where riparian restoration, riparian enhancement and/or riparian preservation was performed and any deviations to the Bank Parcel from what was approved in the Plan. 5. As -Built map of the stream and wetland mitigation areas. DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 6. Aerial map of the buffer mitigation and nutrient offset areas that was included in the approved Plan. Financial Assurance for Bank Parcel Monitoring and Maintenance D. After completion of the riparian restoration, construction and mitigation activities on the Bank Parcel, a separate Performance/Maintenance Bond will be secured for 100% of the estimated cost to implement the monitoring and maintenance plan as described in the approved Plan and As -Built Report applicable for the site. The Bond must be from a surety company that is rated no less than an "A-" as rated by A.M. Best, and it is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with annual bond renewals. E. A Performance/Maintenance Bond shall be secured each year for a minimum of five years, and until DWR has released all Riparian Buffer Credits and Nutrient Offset Credits to the Sponsor. No bond shall be less than $100,000 initially, to cover monitoring and maintenance costs. F. Once DWR has released 100% of all credits for completion of all Bank Parcel milestones described in Table 3 of Section VIII and in the corresponding Plan, the Sponsor will be released from its performance obligations under the performance bond required in "D-E" of this Section. G. To comply with this section, DWR must be the Obligee on all performance bonds. Monitoring and Maintenance Reports H. The Sponsor shall monitor the Bank Parcel as described in each Plan until such time as DWR determines that the performance standards described below have been met. The monitoring period shall be a minimum of five consecutive years. I. 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 Plan for approval. Native hardwood tree volunteer species may be included to meet performance standards as determined by the DWR. I A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height and shall apply, on the Bank Parcel, to the minimum height that a planted tree or shrub shall be at initial planting. Volunteer stems that are less than 10 centimeters shall not be quantified and included in the annual vegetation data included with the monitoring reports. I DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 K. If the performance standards of the vegetation are not met, supplemental plantings may be required. Supplemental plantings will be utilized until the required densities have been achieved and maintained for five years. Bank Parcel maintenance, such as ensuring diffuse flow, managing invasive species, and pest control will be included in the Plan. L. Monitoring Reports for Riparian Buffer Credit and Nutrient Offset Credit: Reporting criteria of the vegetation shall be based on the Carolina Vegetation Survey (CVS) — EEP Protocol for Recording Vegetation Level 2 Plot Sampling only version 4.0 or any updated versions of this protocol in place on the date of acceptance of the Plan. The Sponsor shall submit to the DWR 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 for each Bank Parcel under this instrument. Vegetation data shall not be collected prior to late August of each year. This report will describe the conditions of each Bank Parcel, including an evaluation of the performance standards of the vegetation contained within the approved Plan. Reports shall contain the following unless otherwise agreed to by DWR in the Plan: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 2. A detailed narrative with supporting photos 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, location of transects, etc.; and 4. Monitoring data, including specific vegetative counts, heights and vigor 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 ledgers; and 6. Corresponding verification letters from designated local governments upon request; and 7. Corresponding Mitigation Transfer Certificates upon request; and 8. Proof of performance bond renewal to cover the next monitoring year (if applicable) Contingency Plans/Remedial Actions M. In the event the Bank Parcel fails to achieve the performance criteria described in this Instrument and the approved Plan, the Sponsor shall develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcel and the Bank. Depending on the degree of remedial actions required, the DWR may modify the monitoring period. VII. CALCULATION OF CREDITS Riparian Buffer Credits A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 02B .0295 (m) and (n) following the guidance provided in the 10 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR, see reference #5, including the most recent Project Credit Table Template provided online (see Appendix Q. B. Riparian buffer restoration or enhancement on the Bank Parcel, as described in 15A NCAC 02B .0295 (n) and defined in 15A NCAC 02B .0295 (b) that is performed on agriculture lands within the Bank Parcel, may be used for either Riparian Buffer Credit or Nutrient Offset Credit, but not both. C. Riparian buffer preservation on the Bank Parcel, as described in 15A NCAC 02B .0295 (o) and defined in 15A NCAC 02B .0295 (b), can only be used for Riparian Buffer Credit. D. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. Nutrient Offset Credits E. The square footage of Nutrient Offset Credits on the Bank Parcel will be determined by applying the applicable ratio as provided in 15A NCAC 02B .0295 (m) for a Restoration Site and Enhancement Site following the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits issued by the DWR, including the most recent Project Credit Table Template provided online by DWR, see reference # 5, reference #6 and Attachment C. All riparian areas proposed for Nutrient Offset Credits must be a minimum of 50 feet from the top of the banks along viable streams and viable ditches on land noted in a Site Viability Letter as agriculture. F. Nutrient Offset Credits cannot be achieved through the preservation activities performed on this Bank Parcel. G. Nutrient Abatement of Restored Riparian Area/Buffers on agricultural land: The Sponsor and DWR agree to the following: 1. The pounds of nitrogen offset per acre of restored riparian areas/buffers shall be 2,273.02 pounds per acre or 19.16394 square feet per pound. H. The Sponsor and DWR agree the methodology and calculations for determining nitrogen reductions, associated with restoration of riparian areas on the Bank Parcel as described in Section IV of this Instrument, shall be fixed as part of the approval of this Instrument, with the fixed amount not changing during the Bank Parcel Development or credit release schedule for each Bank Parcel. For further details on the approved method and calculations for determining nutrient reductions associated with the riparian restoration on this Bank Parcel refer to the NCDWR - Methodology & Calculations for Nutrient Reductions document found in reference #6. 11 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 VIII. CREDIT RELEASE SCHEDULE A. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the Riparian Buffer Credits and/or Nutrient Offset Credits associated with the Pantera Bank Parcel will become available for sale to a third parry in accordance with the Credit Release Schedule provided in Table 3.0 below. Table 3.0 - Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits % Credit Available for Task Project Milestone Sale Instrument and Plan Approved by DWR, Draft Stream and Wetland Mitigation Plan approved by the IRT, Conservation Easement Recorded & assigned according to Item B (1) of Section X in this Instrument & has 1 been completed and approved by DWR*, and Financial Assurance Posted 25 All Riparian Earthwork & Mitigation Activities, Planting and Installation of Monitoring Devices completed for the Bank Parcel, easement boundaries adequately marked, all applicable permits obtained. A site visit performed 2 by DWR is required for this task 20 3 Monitoring Financial Assurance Posted and Approval of As -Built Report 10 Monitoring Report #1: Approved by the DWR** & Financial Assurance 4 Posted 10 Monitoring Report #2: Approved by the DWR** & Financial Assurance 5 Posted 10 Monitoring Report #3: Approved by the DWR** & Financial Assurance 6 Posted 10 Monitoring Report #4: Approved by the DWR** & Financial Assurance 8 Posted 5 Monitoring Report #5: Approved by the DWR** and final site visit by 9 DWR has been conducted 10 Total 100% * For specification, please see Section V in this Instrument ** DWR Approval provided upon a determination that the site is meeting success criteria contained within the approved Plan. B. DWR may modify credit release schedules based on the information submitted or the order in which required information is received. DWR will notify the Sponsor of any modification to the credit release schedule. Any major deviations to the Bank Parcel that were not authorized in writing by DWR prior to implementation may affect the amount of riparian buffer credits and nutrient offset credits that will be generated by the Bank Parcel. C. DWR may consider a Credit Release Schedule for a Bank Parcel based on the extent of change between current onsite conditions and proposed post construction conditions. D. The Sponsor must initiate implementation of the approved Plan for the site under this Instrument in concurrence with all stream and wetland mitigation activities proposed in the approved Mitigation Plan referenced in Item D of Section IV of this Instrument. 12 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 IX. PROCEDURE FOR DEBITING AND CREDITING Credit Ledgers A. The Sponsor shall maintain one credit ledger for each mitigation type for the Bank Parcel under this Instrument unless otherwise instructed by DWR in the approved Plan. Credit ledgers shall provide the accounting for Riparian Buffer Credits in square feet and acres, and Nutrient Offset Credits in pounds and square feet. B. Each credit ledger shall be submitted on a separate 8 %2 in. x 11 in. spreadsheet with legible font style and font size. All ledgers shall be submitted using the templates provided in Attachments B of this Instrument or any updated versions to these templates as provided by DWR. Credit Processing C. Riparian Buffer Credits generated on this Bank Parcel will be used to provide mitigation for authorized buffer impacts within the 03020201 HUC of the Neuse River Basin according to 15A NCAC 02B .0295 (f) and (g), excluding the Falls Lake Watershed. D. Riparian Buffer Preservation credits approved under 15A NCAC 02B .0295 (o) generated on the Bank Parcel are neither convertible nor transferrable into nutrient offset credits. E. Nutrient Offset Credits generated on the Bank Parcel will be used to offset nitrogen nutrient loadings within the 03020201 HUC of the Neuse River Basin, excluding the Falls Lake Watershed, in accordance with 15A NCAC 02B .0703. F. Available Riparian Buffer Credits (credits that have been released by DWR but not sold by the Sponsor) that are generated from riparian restoration on agriculture land and meet criteria for Nutrient Offset Credits as outlined in Section VII of this Instrument, the Site Viability Letter and the corresponding Plan can be converted from Riparian Buffer Credits into Nutrient Offset Credits upon written approval from DWR. Credit conversions for this Bank Parcel can only be requested after completion of Task 3 per Table 3.0 in this Instrument. Once a credit has been converted to another credit type, the transaction is permanent, and the credit cannot be converted again. G. Available Nutrient Offset Credits (credits that have been released by DWR but not sold by the Sponsor) that are generated from riparian restoration within 0- 100' from tops of stream banks and meet criteria for Riparian Buffer Credits as outlined in Section VII of this Instrument, the Site Viability Letter, 15A NCAC 02B .0295 and the corresponding Plan can be converted from Nutrient Offset Credits to Riparian Buffer Credits upon written approval from DWR. Credit conversions for this Bank Parcel can only be requested after completion of Task 3 per Table 3.0 in this Instrument. Once a credit has been converted to another credit type, the transaction is permanent, and the credit cannot be converted again. 13 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 H. Any credit conversions must be calculated using the guidance provided in the Clarified Procedures for Calculating Buffer Mitigation Credits and Nutrient Offset Credits letter issued by the DWR, see reference #5. I. The Sponsor shall obtain written verification of nutrient offset need from a designated local government in the 03020201 HUC of the Neuse River Basin outside of the Falls Watershed, or from DWR through an approved NPDES permit for wastewater nutrient sources prior to debiting Nutrient Offset Credits from each Bank Parcel. J. The Sponsor shall obtain verification of buffer mitigation required from the delegated local government in the 03020201 HUC of the Neuse River Basin outside of the Falls Watershed or DWR prior to debiting Riparian Buffer Credits from the individual Bank Parcel. K. 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 up-to-date credit ledgers for each Bank Parcel by the tenth (I01h) of each month. At a minimum and upon request DWR shall receive a hard copy of updated credit ledgers along with the corresponding Mitigation Credit Transfer Certificates ("Certificate") and all corresponding letters from the designated local governments or DWR where applicable, once a year. Notification of all credit sales shall be provided to DWR until all credits that have been released have been sold. Mitigation Credit Transfer Certificates L. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is required to be provided to the buyer of Riparian Buffer and/or Nutrient Offset credits, that will include, at a minimum, the following information: Bank Details: (1) Sponsor Name, (2) Bank Parcel name as it appears in Table 1.0, (3) DWR project number for the Plan as it appears in Table 1.0 of this Instrument. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 — when applicable) amount of Nutrient Offset Credits purchased in pounds and confirmation from the designated local government of the amount required, and (4 — when applicable) amount of Riparian Buffer Credits purchased in square feet and the confirmation from DWR or the local government of the amount required. 3. Permitted Project Details: (1) project name as it appears on DWR or local government permits and/or certifications, (2) 8-digit HUC (confirming location is not within the Falls lake watershed, (3) river basin, (4) nutrient strategy applicable to the project with impacts, (5 — when applicable) designated local government requiring Nutrient Offset Credits, and/or (6) DWR authorization number or delegated local government requiring Riparian Buffer Credits for this project, and (6) credit type and amount required for the project 14 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 I. If the DWR determines that the Bank is operating at a deficit (e.g. 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. X. BANK PARCEL CLOSURE A. Bank Parcel Closure for each Bank Parcel under this Instrument shall be identified as the event when the Sponsor is relieved of all its responsibilities to the Bank Parcel and there are no Riparian Buffer Credits or Nutrient Offset Credits left to sell. B. Bank Parcel Closure shall commence only after all 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 monitoring 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 FOR THE BANK PARCEL A. Upon the presentation of proper credentials, and during normal business hours, the Sponsor and the landowner shall grant permission to the Director of DWR, or an authorized representative of the Director of DWR, to enter the property containing the Bank Parcel. B. Amendments: This Banking Instrument may be amended or modified only with written approval of all signatory parties, including the USACE if it is applicable to the amendment. C. Any transfer of the Sponsor's rights or obligations outlined in this Instrument or any other agreement referenced in this Instrument to a third party must be approved by DWR prior to the transfer. D. Force Majeure: After 100% of all of the credits have been released according to the credit release schedule in Section VIII and confirmation has been received by the DWR that the Conservation Easement has been successfully assigned in compliance with Item H of Section V, the Sponsor will not be responsible for Bank failure that is attributed to natural catastrophes including but not limited 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 VIII, 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 15 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 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, 2. Issuance of Site Viability Letters, 3. Plan review and approval of items listed in Section V of this Instrument, 4. As -Built Report review and approval of items listed in Section VI of this Instrument, 5. Monitoring Report review and approval of items listed in Section VI of this Instrument, 6. Credit Ledger review and approval of items listed in Section IX of this Instrument, 7. Certificate review of items listed in Section IX of this Instrument and cross analysis to credit ledgers and, 8. Information requests, file reviews and audits G. Reports, ledgers, files and other information shall be made available to DWR upon request, unless otherwise specified in this or any other document. H. Validity of the Banking Instrument: This Instrument will become valid on the date of the last parry's signature. L 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 Instrument by reference, and that are not legally binding, the specific language within the Instrument shall be controlling. 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. 150B. K. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently, and voluntarily. 16 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 L. Notices: All notices and other communications which may be or are required to be given or made by any 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 specified by written notice delivered in accordance herewith. If to Sponsor: Environmental Banc and Exchange, LLC Attention: Jennifer Hatchett 3600 Glenwood Avenue, Suite 100 Raleigh, North Carolina 27612 jatchett@res.us If to DWR: NC Division of Water Resources — 401 & Buffer Permitting Branch Attn: Nutrient Offset and Buffer Banking Coordinator 1617 Mail Service Center Raleigh, NC 27699-1617 M. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. Environmental Banc and Exchange, LLC Jennifer Hatchett (Print) �/a&Wz&7 (Signature) General Manager Title: Date: 02/07/2024 NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY - DIVISION OF WATER RESOURCES By ( Richard E. Rogers Jr. (Print) � �"f-- r 6" Y, (Signature) oaz�a Title: Director, Division of water Resources Date: 2/26/2024 17 DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 Nutrient Offset Program & Buffer Mitigation Program Updated Authorities for Neuse Strategy MBI August 11, 2020 ATTACHMENT A Authorities pertaining to the Pantera Mitigation Banking Instrument All Basins General Statutes: G.S. § 143-214.11 Ecosystem Enhancement Program G.S. § 143-214.26 Nutrient Offset Credits G.S. § 143-214.20-24 Riparian Buffer Protection Program G.S. § 143-214.7 Stormwater runoff rules and programs G.S. § 143-215.8B Basinwide Water Quality Management Plans Session Laws S.L. 2019-86 (Amendment to G.S. § 143-214.26) S.L. 2016-94 S.L.2015-246 S.L.2015-149 S.L. 2014-90 S.L.2014-120 S.L.2013-413 S.L.2013-121 S.L.2013-265 S.L. 2012-200 (Amendment to G.S. §143-214.23 and G.S. §143-215.1) S.L. 2011-343 (Amendment to G.S. §143-214.11) S.L. 2009- 337 (Amendment to G.S. §143-214.11) Administrative Rules. 15A NCAC 02B .0202 Definitions 15A NCAC 02B .0223 Nutrient Sensitive Waters 15A NCAC 02B .0701 Nutrient Strategies Definitions 15A NCAC 02B .0703 Nutrient Offset Credit Trading 15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers Neuse River Basin Buffer and Neuse Nutrient Strategy Session Laws S.L. 2011-394 S.L. 1998-221 (Part I) S.L. 1995-572 Administrative Rules. 15A NCAC 02B .0610 Managing Activities within Riparian Buffers: Definitions 15A NCAC 02B .0611 Managing Activities within Riparian Buffers: Authorization Certificates 15A NCAC 02B .0612 Managing Activities within Riparian Buffers: Forest Harvesting Requirements 15A NCAC 02B .0710 Neuse Nutrient Strategy: Purpose and Scope 15A NCAC 02B .0711 Neuse Nutrient Strategy: Stormwater 15A NCAC 02B .0712 Neuse Nutrient Strategy: Agriculture 15A NCAC 02B .0713 Neuse Nutrient Strategy: Wastewater Discharge Requirements 15A NCAC 02B .0714 Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B .0715 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 ATTACHMENT B *Credits shown below are only for mitigation credits approved by the UMBI, BPDP, and As -Built. (Sponsor Name & Instrument Name) (Parcel Name w/ HUC #) Buffer Credit Ledger Date Last Updated: DWR Bank Parcel Project #: Total Credits Released To Date: Sale/ Release Date Purchaser or % Credit Release Project w/ HUC # Credits Released/Available to Bank Credits Debited/Sold From Bank Buffer Credit Balance Gov't Requiring Square Feet Acres Square Feet Acres SquareAcres Feet DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 ATTACHMENT B *Credits shown below are only for mitigation credits approved by the UMBI, BPDP, and As -Built. (Sponsor name & Instrument name) (Parcel Name w/ HUC #) Nitrogen Credit Ledger Date Last Updated: DWR Bank Parcel Project #: Total Credits Released To Date: Sale/ Release Date Purchaser or%Credit Release Project w/HUC # Credits Released/Available to Bank Credits Debited/Sold From Bank Nutrient Credit Balance Gov't Requiring Pounds of Nitrogen S Ft q Pounds of Nitrogen S Ft q Pounds of Nitrogen S Ft q DocuSign Envelope ID: 9AF246C3-EA14-4839-90FA-F4290D8D15B9 Table 1. [INSERT PROJECT NAME], [INSERT PROJECT NUMBER], Project Credits Neuse 03020201 - Outside Falls Lake Project Area N Credit Conversion Ratio (112/pound) P Credit Conversion Ratio (ft2/pound) 19.16394 N/A Credit Type Location Subject? (enter NO if ephemeral or ditch') Feature Type Mitigation Activity Min -Max Buffer Width (ft) Feature Name Total Area (ft�) Total (Creditable) Area of Buffer i Mitigation (ft) Initial Credit Ratio (x:i) %Full Credit Final Credit Ratio (x:l) Convertible to Riparian Buffer? Riparian Buffer Credits Convertible to Nutrient Offset? Delivered Nutrient Offset: N (Ibs) Delivered Nutrient Offset: P (Ibs) Totals (ft2): Total Buffer (ft2): Total Nutrient Offset (ft2): 0 0 0.000 0.000 0.000 0 0 0 N/A Enter Preservation Credits Below Total Ephemeral Area (ft) for Credit: Total Eligible Ephemeral Area (ft): Total Eligible for Preservation (ft): Credit Type Location Subject? Feature Type Mitigation Activity I Min -Max BufferWidth (ft) Feature Name Preservation Area Subtotals (ft): TOTAL AREA OF BUFFER MITIGATION (TABM) Mitigation Totals Square Feet Credits Restoration: 0 0.000 Enhancement: 0 0.000 Preservation: 0 0.000 Total Riparian Buffer: 0 0.000 TOTAL NUTRIENT OFFSET MITIGATION Mitigation Totals Square Feet Credits Nutrient Offset: Nitrogen: 0 0.000 Phosphorus: 0.0 00 1. The Randleman Lake buffer rules allow some ditches to be classified as subject according to 15A NCAC 02B .0250 (5)(a). 0 0 0 0.0% 0 0.0% Total Area (sf) Total (Creditable) Area for Buffer Mitigation (ft) 0 0 Ephemeral Reaches as %TABM Preservation as %TABM Initial Credit %Full Credit Final Credit Riparian Ratio (x:l) Ratio (x:l) Buffer Credits last updated 08/03/2020