Loading...
20180580 Ver 1_Signed MBI_20180718AGREEMENT TO ESTABLISH THE WOLFE BANKING INSTRUMENT IN THE UPPER NEUSE RIVER BASIN FOR RIPARIAN BUFFER AND NUTRIENT OFFSET MITIGATION CREDITS PURSUANT TO THE FALLS LAKE WATER SUPPLY NUTRIENT STRATEGY TABLE OF CONTENTS I. PREAMBLE...........................................................................................................................2 II. LOCATION AND GEOGRAPHIC SERVICE AREA..................................................................... 2 III. AUTHORITIES.......................................................................................................................3 IV. ESTABLISHMENT OF WOLFE BANK PARCEL........................................................................ 3 V. BANK PARCEL DEVELOPMENT PACKAGE............................................................................ 4 VI. POST CONSTRUCTION DOCUMENTATION.......................................................................... 6 VII. CALCULATION OF MITIGATION CREDITS............................................................................ 8 VIII. CREDIT RELEASE SCHEDULE..............................................................................................10 IX. PROCEDURE FOR DEBITING AND CREDITING...................................................................10 X. BANK PARCEL CLOSURE.................................................................................................... 12 XI. GENERAL PROVISIONS...................................................................................................... 12 ATTACHMENTS A — Division of Water Resources Authority Document B — Buffer Restoration Ledger Template C —Buffer Preservation Ledger Template D —Nutrient Offset Ledger Template E- Rule Text 15A NCAC 02B.0240 F — Rule Text 15A NCAC 02B.0295 (Effective November 1, 2015) 1 I. PREAMBLE This Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of the Wolfe Nutrient Offset and Buffer Mitigation Bank Parcel ("Bank Parcel") to provide Neuse Riparian Buffer mitigation credit ("Riparian Buffer Credits") and Falls Lake Water Supply nutrient load reduction credit ("Nutrient Offset Credits") is made and entered into by and among Wildlands Holdings V, 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.0240 and the Consolidated Mitigation Rule 15A NCAC 02B.0295, which became effective on November 1, 2015 (Attachment E and F). The purpose of the Bank is: A. To improve water quality of Byrd's Creek and tributaries to Byrd's Creek through the restoration of riparian buffer habitat and adjacent riparian areas. B. To provide mitigation and sell any resulting Riparian Buffer Credits and/or Nutrient Offset Credits to third parties in the Neuse River Basin and Falls Lake Watershed respectively, for development (both existing and proposed) requiring such mitigation. II. 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 due to development activities. B. The Bank Parcel is located within the Neuse River Basin in the State of North Carolina, United States Geological Survey ("USGS") 8 -digit Hydrologic Unit Code ("HUC") 03020201 of the Upper Falls Watersheds as defined in 15A NCAC 0213 .0276. C. The project is comprised of one parcel of land in Person County, NC, lying adjacent to an existing conservation easement for the Byrds Creek Full -Delivery Mitigation Site (DMS ID# 95020). The Bank Parcel property is currently used for hay crop production is accessed from Wolfe Road in Hurdle Mills, NC. The project is located at 36.24687 N and 79.04504 W. D. Byrd's Creek and unnamed tributaries to Byrd's Creek are the receiving bodies of water for stormwater runoff from this parcel. The Byrd's Creek is classified by DWR as Nutrient Sensitive Waters (NSW). Sale or transfer of Riparian Buffer Credits shall be limited to the 8 -digit HUC in which the Bank Parcel is located unless otherwise authorized by the DWR or delegated local government in accordance with 15A NCAC 02B .0295. Sale or transfer of Nutrient Offset Credits shall be limited to the Falls Lake Watershed, as defined in Rule 15A NCAC 0213 .0276 and in accordance with 15A NCAC 026 .0282 (2). K 111. AUTHORITIES A. The Bank will be used to provide Riparian Buffer Credit and Nutrient Offset Credit in accordance with the requirements in the DWR Authority document 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 Sensitive Waters Management Strategy — and- for the Falls Lake Water Supply Nutrient Strategy. C. The selling of mitigation credits shall be consistent with approved North Carolina ("State") statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy —and- for the Falls Lake Water Supply Nutrient Strategy. D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development Package (BPDP) to generate Riparian Buffer Credits and Nutrient Offset Credits shall be consistent with North Carolina statutes and rules for the Neuse Nutrient Sensitive Waters Management Strategy that are in place at the time a complete BPDP is submitted to DWR. IV. ESTABLISHMENT OF WOLFE BANK PARCEL A. In accordance with 15A NCAC 02B .0295 and 15 NCAC 02B .0240, 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 mitigation credits but is a preliminary review of the Bank Parcel that details and confirms existing land use conditions, defines the riparian sites (Enhancement, Preservation, or Restoration), and identifies features (stream, ditches, ponds, etc.) that meet general criteria to be suitable to generate mitigation credits. The Site Viability Letter that applies to this Bank Parcel were issued by DWR on January 25,2018. B. The Bank Parcel proposed for inclusion under this Instrument shall require a Bank Parcel Development Package ("BPDP") be submitted to, and approved by, the DWR prior to use of the Bank Parcel for mitigation purposes or sale or transfer of any associated credits. The contents of the BPDP are provided in Section V. C. The BPDP will be placed on public notice and made available for public commenting for 15 calendar days. D. Riparian Buffer Credit may be achieved through restoration, enhancement and preservation of DWR riparian buffers along Byrd's Creek and several unnamed tributaries on the Bank Parcel according to 15A NCAC 0213.0295 (n) and (o). Buffer credits are only attainable if the width of the restoration, enhancement and preservation site is at least 20 feet from the top of bank. E. The Bank Parcel is intended to provide Neuse Riparian Buffer mitigation as follows: 1. Planting hardwood trees on a Restoration Site, as defined in ISA NCAC 02B .0295 (b) adjacent to three (3) mitigated streams which are subject to the buffer protection rule 15A NCAC .0233. 2. Planting hardwood trees on an Enhancement Site, as defined in 15A NCAC 02B .0295(b) along one stream which is subject to the buffer protection rule 15A NCAC .0233 3. Maintaining a Preservation Site, as defined in 15A NCAC 02B .0295(b) by placing a conservation easement around riparian areas along streams as allowed per 15 NCAC 02B .0295(0). F. Nutrient Offset Credit may be achieved through restoration of the riparian areas adjacent to the streams on this Bank Parcel where agriculture was determined by DWR to be the predominant land use. The width of the restoration and enhancement areas will begin at fifty (50) feet from the tops of the stream banks and will extend landward a maximum distance of two -hundred (200) feet on all sides of the surface waters. G. The Bank Parcel is expected to provide Nutrient Offsets as follows: 1. Converting agricultural land uses within riparian areas to non-agricultural land uses by place a conservation easement around riparian areas along streams. 2. Planting hardwood trees on a Restoration and Enhancement Site, as defined in ISA NCAC 2B .0295 (b) adjacent to mitigation streams where agriculture has been determined by DWR to be the predominant land use. H. The total area of mitigation on the Bank Parcel is expected to be 23 acres. V. BANK PARCEL DEVELOPMENT PACKAGE A. The Wolfe Bank Parcel Development Package (BPDP) 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 BPDP must describe any changes that have occurred to the site between the date of the Site Viability Letter and the date the BPDP is submitted to DWR. T he BPDP 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 activities including a detailed vegetation plan; 4) monitoring and maintenance plans; 5) financial assurances; 6) associated buffer mitigation/nutrient credit calculations, which shall include credit generation, service area, and accounting as appropriate for each regulatory authority; 7) stream buffer determination letter from DWR 8) site viability letter from DWR, and 9) service area. 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 activities or proposed construction within the riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer Credit or Nutrient Offset Credit must be approved by DWR in writing prior to implementation. The failure of the Sponsor to comply with this requirement may result in a revised or reduced credit release schedule for that specific mitigation site. 4 D. Requests for deviation from the approved BPDP must be submitted to DWR in writing. Written approval from the DWR must be received prior to implementing any deviation from the approved BPDP. Property Disposition & Long Term Management E. Prior to the release of any credits, the Sponsor shall acquire a permanent conservation easement at the Person 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 BPDP. 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 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. H. The Sponsor agrees to transfer or assign the conservation easement and its interests in perpetuity to a qualified holder under NC General Statute ("GS") 121-34 et seq. and 170(h) of the Internal Revenue Code prior to the submittal of the Year 4 Monitoring Report. The holder shall be a land trust or stewardship program that will hold and enforce the conservation easement and the interests in perpetuity. The Sponsor shall choose a land trust or stewardship program that is accredited by the Land Trust Accreditation Commission and/or has been approved by DWR prior to the end of the fourth year monitoring period. A land trust must be certified under 501(c)(3) of the Internal Revenue Code. I. In the event that the Sponsor is also the owner of the underlying fee interest in the property, the conveyance of the conservation easement to a land trust or stewardship fund must be arranged at the outset of the approved BPDP. Financial Assurances J. Following approval of the BPDP, the Sponsor shall provide a Performance/Maintenance Bond 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 still rated no less than an "A-" with each annual bond renewal. K. The Performance Bond amount shall be 100% of the estimated cost for implementation of the mitigation activities of the Bank Parcel as described in the approved BPDP. No bond shall be less than $150,000.00 to cover construction costs. L. Alternatively, in lieu of posting the Performance Bond, the Sponsor may elect to construct the project prior to the first credit release. M. Once DWR has released all credits for completion of all the items listed below, then the Bank Sponsor will be released from its performance obligations under the performance bond required in Item J -L of this section: 5 1. Instrument and BPDP Approved by DWR, Conservation Easement Recorded, Financial Assurance Posted; 2. Mitigation Site Earthwork and Planting and Installation of Monitoring Devices Completed; 3. As -Built Report as described in Section VI has been received by DWR; and 4. DWR has submitted a written approval of the As -Built Report. N. To comply with this section, DWR must be Obligee on all performance bonds. VI. POST CONSTRUCTION DOCUMENTATION As -Built Regort A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument, to establish, maintain, and monitor Neuse Riparian Buffers or other riparian areas until Item B (1) and (2) of Section X have been satisfied. B. The Sponsor will submit an as -built plan and report for the Bank Parcel within 30 calendar days after completing the establishment of the buffer area and nutrient offset area. The as -built report will describe any deviation from the approved BPDP and will document the following: 1. Buffer restoration: planting details, invasive species control, monitoring device locations, vegetation plot locations, photo point locations, surface and groundwater elevations, as appropriate. 2. Boundary Survey of the conservation easement area, signed and sealed by a licensed surveyor, including an enumeration of the final mitigation areas for riparian buffer and/or nutrient offset mitigation credits in both square feet and acres. 3. As -built aerial map of the mitigation area showing where restoration, enhancement and preservation were performed and any deviations to the Bank Parcel from what was approved in the BPDP. 4. Aerial map of the mitigation that was included in the approved BPDP. Financial Assurance C. After completion of the restoration/construction, 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 BPDP. 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 still rated no less than an "A-" with each annual bond renewal. D. A Performance/Maintenance Bond shall be secured each year for a minimum of five years, and until DWR has released all mitigation credits to the Bank Sponsor. Upon DWR approval, the bond may be lowered each year based on the adjusted cost to complete the monitoring. No bond shall be less than $100,000 to cover monitoring and maintenance costs. 6 E. Once DWR has released all credits for completion of Tasks 1-9 according to the credit release schedule in Section VIII, the Bank Sponsor can be released from its performance obligations under the performance bond required in "C" of this Section. Monitoringand Maintenance Reports The Sponsor shall monitor the Bank Parcel as described in the BPDP 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. G. Performance Standards for Vegetation: Native hardwood trees should be planted at a density sufficient to provide 260 stems per acre after five years. A minimum of four (4) native hardwood trees must be planted. No one species shall be greater than 50% of the planted stems. A list of species for planting will be detailed in the BPDP for approval. Native hardwood tree volunteer species may be included to meet performance standards as determined by the DWR. H. A "stem" means a woody seedling, sapling, shrub or tree, no less than 10 centimeters in height. 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 BPDP. Monitoring Reports for Riparian Buffer Credit or Nutrient Offset Credit: Reporting criteria of the riparian buffer restoration and enhancement shall be based on the Carolina Vegetation Survey (CVS) — EEP Protocol for Recording Vegetation Level 2 Plot Sampling Only Version 4.0 or any updated versions of this protocol in place at the date of acceptance of the BPDP. The Sponsor shall submit to the DWR an annual monitoring report no later than December 31 of each year for a minimum of five consecutive years after the first full growing season. This report will describe the conditions of each Bank Parcel, including an evaluation of the performance standards of the vegetation contained within the approved BPDP. Reports shall contain the following: 1. A U.S. Geological Survey map showing location of the Bank Parcel; 2. A detailed narrative summarizing the condition of the Bank Parcel along with any maintenance or remediation performed that year; and 3. A map, survey, or other figure showing locations of sampling plots, permanent photo points, location of transects, etc.; and 4. Monitoring data, including specific vegetative counts showing that the trees or tree and shrub species planted are meeting performance standards and updated photographs; and 5. A copy of the most recent Bank credit/debit ledgers; and 6. Corresponding verification letters from designated local governments upon request; and 7 7. Corresponding Mitigation Transfer Certificates upon request. 8. Proof of performance bond renewal to cover the next monitoring year (if applicable). Contingency. Plans Remedial Actions K. In the event the Bank Parcel fails to achieve the success criteria described in this Instrument and the approved BPDP, the Bank 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 MITIGATION 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). B. Riparian buffer restoration on the Bank Parcel, as described in 15A NCAC 02B .0295(n) and (o), defined in 15A NCAC 02B .0295(b) and 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 be used for only 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. All Nutrient Offset Credits will be determined by including the applicable ratio as provided in 15A NCAC 02B .0295 (m) for a Restoration and Enhancement Site. All riparian areas proposed for nutrient offset credits must be a minimum of fifty (50) feet from the top of the stream bank. F. Nutrient Offset Credits cannot be achieved through the preservation activities performed on this Bank Parcel. G. Nutrient Abatement of Restored Riparian Area: The Sponsor and DWR agree: 1. The pounds of nitrogen offset per acre of restored or enhanced riparian areas shall be 2,273.02 lbs/acre. 2. The pounds of phosphorus offset per acre of restored or enhanced riparian areas shall be 146.4 lbs/acre. 8 H. The Sponsor and DWR agree that the methodology and calculations for determining nitrogen and total phosphorous reduction, associated with restoration of riparian areas 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 the Bank Parcel unless the viability letter for that Bank Parcel has expired. This space left blank intentionally, do not add text to this space. VIII. CREDIT RELEASE SCHEDULE A. Credit Release: Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the mitigation credits associated with the Bank Parcel will become available for sale to a third party in accordance with the following schedules: Table I - Credit Release Schedule for Riparian Buffer and Nutrient Offset Credits % Credit Available for Task Project Milestone Sale MBI and BPDP Approved by DWR, Conservation Easement 1 Recorded* and Financial Assurance Posted 20 Mitigation Site Earthwork, Planting and Installation of Monitoring 2 Devices Completed 20 Monitoring Financial Assurance Posted and Approval of As -Built 3 Report 10 Monitoring Report #1: Approved by the DWR and financial 4 assurance renewed** 10 Monitoring Report #2: Approved by the DWR and financial 5 assurance renewed** 10 Monitoring Report #3: Approved by the DWR and financial 6 assurance renewed** 10 Item B (1) of Section X in this Instrument has been completed and 7 approved by DWR. 5 No remaining credits will be released until Task 7 has been satisfied Monitoring Report 44: Approved by the DWR and financial 8 ! assurance renewed** 5 Monitoring Report #5: Approved by the DWR** and final site visit 9 by 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 BPDP B. DWR may modify the credit release schedule 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. IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS Credit Ledgers 10 A. The Bank Sponsor shall maintain four credit ledgers, if applicable, for the Bank Parcel under this Instrument: one accounting for buffer restoration and enhancement credits in square feet and acres, one accounting for buffer preservation credits in square feet and acres, one accounting for nitrogen nutrient offset credits in pounds and acres, and one accounting for phosphorus nutrient offset credits in pounds and acres. B. Each credit ledger shall be submitted on a separate 8 %in X 11in spreadsheet with legible font style and font size. All ledgers shall be submitted using the templates provided in Attachments C and D of this Instrument or any updated versions to these templates as provided by DWR. Credit Processin C. Riparian Buffer Credits generated on this Bank Parcel must be provided to offset impacts within the Neuse River Basin according to 15A NCAC 02B .0295 (g). D. Nutrient Offset Credits generated on this Bank Parcel can only be provided to offset nutrient loadings within the Upper and Lower Falls Watersheds. Impacted areas in the Upper Falls Watershed can only mitigate in the Upper Falls Watershed. Impacted areas in the Lower Falls Watershed can mitigate in any portion of the Falls Watershed per 15A NCAC 02B .0282. Available mitigation credits (credits that have been released by DWR but not sold by the Sponsor) that are generated from riparian buffer restoration or enhancement, as defined in 15A NCAC 02B .0295 (b) and described in 15A NCAC 02B .0295 (n) on agricultural lands, can be converted and transferred from Riparian Buffer Credits to Nutrient Offset Credits and from Nutrient Offset Credits back to Riparian Buffer Credits upon written approval from DWR. F. The Bank Sponsor shall obtain written verification of nutrient offset need from a designated local government in the Falls Watershed prior to debiting Nutrient Offset Credits from the Bank Parcel. G. The Bank Sponsor shall obtain verification of buffer mitigation required from a delegated local government in the Neuse River Basin or DWR prior to debiting Riparian Buffer Credits from the Bank Parcel. H. All credit and debit transactions for each Bank Parcel under this Instrument shall be accurately depicted in the credit ledgers. The Sponsor shall submit accurate and up-to-date credit ledgers for each Bank Parcel by the tenth (10th) of each month. At a minimum and only upon request, DWR shall receive a hard copy of updated credit ledgers along with corresponding Mitigation Credit Transfer Certificates and all corresponding letters from the designated local governments or DWR where applicable once a year. Notification of all credit sales shall be provided to DWR until all credits that have been released have been sold. 11 Mitigation Credit Transfer Certificates I. 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: 1. Bank Details: (1) sponsor Name, (2) bank parcel name as it appears in this Instrument, (3) DWR project number for the BPDP. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, (3 — when applicable) amount of nitrogen credits purchased in pounds and confirmation from the designated local government of the amount required, (4 — when applicable) amount of phosphorous credits purchased in pounds and confirmation from the designated local government of the amount required, and (5 — 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. Project Details: (1) project name as it appears on DWR or local government permits and/or certifications, (2) 12 -digit HUC, (3) river basin, (4) nutrient strategy applicable to the project, (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. J. 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 shall be identified as the event when the Sponsor is relieved of all of its responsibilities to the Bank Parcel and there are no mitigation credits left to sell. B. Bank Parcel Closure shall commence only after all of the following events have occurred: 1. Transfer or assign the conservation easement and all of its interests, in perpetuity, to a land trust or stewardship program as described in Section V of this instrument. 2. All five years of monitoring completed and all 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 12 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, an authorized representative of the Director of DWR, to enter the property containing the Bank Parcel(s). B. Amendments: This Banking Instrument maybe amended or modified only with written approval of all signatory parties. 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 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. However, if an event occurs before 100% of all the credits have been released according to the credit release schedule in Section VIII, then the Sponsor shall take remedial action to restore the property to its condition prior to the event, in a manner sufficient to provide adequate mitigation to cover credits that were sold prior to the occurrence of the event. Such remedial action shall be taken by the Sponsor only to the extent necessary and appropriate, as determined by DWR and the Sponsor. DWR must concur in writing that a force majeure event has occurred for this provision to apply. F. Oversight: Actions taken by DWR may include, but are not limited to, the following: 1. Site visits. 2. Issuance of Site Viability Letters. 3. BPDP 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. 8. Information requests, file reviews and audits Reports, ledgers, files and other information shall be made available to DWR upon request, unless otherwise specified in this or any other document. G. Validity of the Banking Instrument: This Instrument will become valid on the date of the last party's signature. H. 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 13 documents that are incorporated into the Instrument by reference, and that are not legally binding, the specific language within the Instrument shall be controlling. I. 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. J. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently, and voluntarily. K. 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 Bank Sponsor: 1430 South Mint Street, Suite 104 Charlotte, NC 28203 Attn: Shawn Wilkerson Copy to: 5605 Chapel Hill Road, Suite 122 Raleigh, NC 27607 Attn: John Hutton If to DWR: NC Division of Water Resources -401 & Buffer Permitting Branch Attn: Nutrient Offset Banking Coordinator 1617 Mail Service Center Raleigh, NC 27699-1617 L. Applicable Law: This Agreement shall be construed under the laws of the State of North Carolina. 14 Wildlands Holdings V, LLC By: yawn D. Wilkerson (Print) v •� (Signature) Title: Manager Date: J� 0 NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY -DIVISION OF WATER RESOURCES By: L`v\k,, - (Print) (Signature) Title: Date: -? /I t ! 29l y- 15 Updated Nutrient Offset Program & Buffer Mitigation Program 4/13/2016 Authorities for MBI ATTACHMENT A Authorities pertaining to the Wolfe 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. 2015-246 S.L. 2015-149 S.L. 2014-90 S.L. 2014-120 S.L. 2013413 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 .0237 Best Management Practice Cost -Effectiveness Rate 15A NCAC 02B .0240 Nutrient Offset Payments 15A NCAC 02B .0295 Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers Neuse River Basin Buffer and Falls Lake Nutrient Strategy General Statutes and Session Laws: G.S. § 143-214.5 Water Supply Watershed Protection S.L. 2012-187 S.L. 2011-394 S.L. 2009486 S.L. 1998-221 (Part I) Administrative Rules: 15A NCAC 02B .0233 Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B .0241 Delegation of Authority for the Protection and Maintenance of Existing Riparian Buffers 15A NCAC 02B .0275 Purpose and Scope 15A NCAC 02B .0276 Definitions 15A NCAC 02B .0277 Stormwater Management for New Development 15A NCAC 02B .0278 Stonnwater Management for Existing Development 15A NCAC 02B .0279 Wastewater Discharge Requirements 15A NCAC 02B .0280 Agriculture 15A NCAC 02B .0281 Stormwater Requirements for State and Federal Entities 15A NCAC 02B .0282 Options for Offsetting Nutrient Loads Bank Name (HUC 03020201) Buffer Restoratio n/Enhancment Credit Ledger Date Last Updated: WI LDLAN DS DWR Bank Parcel Project #: HOLDINGSO Total Credits Released To Date: _ sq. ft. Sale/ Purchaser or % Credit Release Date: Release Name Release Date: Release Credits Credits Debited/Sold From Released/Available to Bank Bank _ ........_._ ...... ........ i Square Feet Acres Square Feet Acres Buffer Credit Balance Gov't Requiring Square Feet Acres Totals - - - Bank Name (HUC 03020201) Buffer Preservation Credit Ledger Date Last Updated: WILD LANDS DWR Bank Parcel Project #: HomwGs f Total Credits Released To Date: —sq. ft. Sale/ Purchaser or % Credit Credits Credits Debited/Sold From Release Date Release Project Name Released/Available to Bank Bank i Square Feet Acres Square Feet Acres Buffer Credit Balance Gov't Requiring Square Feet Acres Totals Sale/ ' Purchaser or % Credit Release Date Totals Bank Name (HUC 03020201) Nitrogen/Phosphorus Credit Ledger Date Last Updated: DWR Bank Parcel Project M Project Name Credits Released/Available Bank WILDLANDS HOLDINGS Credits Debited/Sold From Bank Nutrient Credit Balance Gov't Requiring Pounds I Acres I Pounds I Acres Pounds I Acres D D 0 2 M z 0