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20190183 Ver 1_Signed UMBI-Randleman_20190423AGREEMENT TO ESTABLISH AN UMBRELLA MITIGATION BANKING INSTRUMENT IN THE RANDLEMAN LAKE WATERSHED WITHIN THE CAPE FEAR RIVER BASIN FOR RIPARIAN BUFFER MITIGATION CREDITS PURSUANT TO THE RANDLEMAN LAKE WATER SUPPLY NUTRIENT MANAGEMENT STRATEGY TABLE OF CONTENTS I. PREAMBLE............................................................................................................................2 II. LOCATION AND GEOGRAPHIC SERVICE AREA..................................................................... 2 III. AUTHORITIES........................................................................................................................3 IV. ESTABLISHMENT OF THE BANK PARCELS............................................................................ 3 V. BANK PARCEL DEVELOPMENT PACKAGE............................................................................ 4 Property Disposition & Long Term Management for Each Bank Parcel..........................................5 Financial Assurances for Each Bank Parcel.......................................................................................5 VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL ................................ 6 As -Built Report.................................................................................................................................6 Financial Assurances for each Bank Parcel..................:....................................................................6 Monitoringand Maintenance..........................................................................................................7 Contingency Plans/Remedial Actions...............................................................................................8 VII. CALCULATION OF MITIGATION CREDITS FOR EACH BANK PARCEL ................................... 8 RiparianBuffer Credits.....................................................................................................................8 VIII. CREDIT RELEASE SCHEDULE................................................................................................. 9 IX. PROCEDURE FOR DEBITING AND CREDITING................................................................... 10 CreditLedger..................................................................................................................................10 CreditProcessing............................................................................................................................10 Mitigation Credit Transfer Certificates...........................................................................................10 X. BANK PARCEL CLOSURE..................................................................................................... 11 XI. GENERAL PROVISIONS FOR EACH BANK PARCEL............................................................. 11 ATTACHMENTS A — Division of Water Resources Authority Document B - Rule Text 15A NCAC 02B.0295 (Effective November 1, 2015) C — Randleman Lake Buffer Ledger Template Page 1 of 14 2019 DEO-WATER OUR S 4Q1 & BUFFER -PERMITTING I. PREAMBLE This Umbrella Mitigation Banking Instrument ("Instrument") regarding the establishment, use, operation, and maintenance of two (2) Buffer Mitigation Bank Parcels, identified in Section II, to provide Randleman Lake Riparian Buffer mitigation credits ("Riparian Buffer 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 the Consolidated Mitigation Rule 15A NCAC 02B .0295, which became effective on November 1, 2015 (Attachment B). The purpose of these Bank Parcels is: A. To restore, enhancement and preserve riparian vegetation adjacent to streams and/or agricultural ditches with the intent to improve water quality within the Randleman Lake Watershed. B. To convert agricultural land uses within riparian areas adjacent to streams and/or agricultural ditches into a dense, hardwood vegetated state with the intent to significantly reduce nutrient loadings associated with agricultural practices into streams and ditches. C. To provide mitigation and sell any resulting Riparian Buffer Credits to third parties in the Randleman Lake Watershed 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 for buffer impacts due to development activities. B. The GSA for this instrument is limited to the Randleman Lake Watershed of the Cape Fear River Basin. C. The selling of Riparian Buffer Credits shall be limited to the Randleman Lake watershed, as defined in accordance with Rule 15A NCAC 0213 .0295. D. The following table provides site-specific details of each of the two Bank Parcels proposed under this Instrument, that are within the Randleman Lake Watershed; Table 1.0 — Site Specific Details Bank DWR County 14 -Digit USGS Project Named Primary Parcel Project # Hydrologic Unit Location Receiving Land Use Name Code Stream Loflin Dairy 2019-0183 35.84576, Crop — Phase II Randolph 03030003010060 -79.87266 Bob Branch Production Wall 2019- Brothers — 0183v2 Randolph 03030003010070 35.82549, Unnamed Crop Phase II -79.85099 Tributary Production Page 2 of 14 III. AUTHORITIES A. The Bank Parcels will be used to provide Riparian Buffer Credit in accordance with the requirements in the DWR Authority document referenced herein as "Attachment A" and attached to this Instrument. Projects eligible for utilization of the credits are those requiring authorization under the requirements of Attachment A and any subsequently approved North Carolina statutes and rules for the Randleman Lake Water Supply Nutrient Management Strategy. C. The selling of mitigation credits generated from the Bank Parcels approved under this Instrument shall be consistent with approved North Carolina statutes and rules forthe Randleman Lake Water Supply Nutrient Management Strategy. D. Mitigation activities proposed under this Instrument and corresponding Bank Parcel Development Packages (BPDP) to generate Riparian Buffer Credits shall be consistent with North Carolina statutes and rules for the Randleman Lake Water Supply Nutrient Management Strategy that are in place at the time a complete BPDP is submitted to DWR. IV. ESTABLISHMENT OF THE BANK PARCELS A. In accordance with 15A NCAC 02B .0295, DWR has provided a "Site Viability Letter" for each of the Bank Parcels 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 (streams, ditches, ponds, etc.) that meet general criteria to be suitable to generate mitigation credits. Table 2.0 below outlines when a Site Viability Letter was issued by DWR for the mitigation sites proposed under this Instrument: Table 2.0 — Site Viability Letter Details Bank Parcel NC DWR Site Visit Viability Letter Received Viability LetterExpiration Date Loflin Dairy— Phase II October 2, 2018 October 19, 2018 October 19, 2020 Wall Brothers — Phase II October 2, 2018 October 22, 2018 October 22, 2020 B. A valid Site Viability Letter is required prior to submittal of each BPDP. Site Viability Letters will either expire on the dates 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 BPDP 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 Parcels 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 individual Bank Parcel for mitigation purposes or the sale or transfer of any associated credits. The contents of each BPDP are provided in Section V. Page 3 of 14 D. Each BPDP submitted under this instrument will be placed on public notice and made available for public commenting for 15 calendar days. E. The Bank Parcels are intended to provide Randleman Riparian Buffer Credit as follows: 1. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B .0295 (b) adjacent to streams. 2. Planting hardwood trees and shrubs on a Restoration Site as defined in 15A NCAC 02B 0295 (b) adjacent to ephemeral channels as allowed in 15 A NCAC 0213 .0295 (o). 3. Planting hardwood trees and shrubs on an Enhancement Site as defined in 15A NCAC 02B 0295(b). 4. Maintaining a Preservation Site as defined in 15A NCAC 02B .0295 (b) along streams as allowed in 15A NCAC 02B .0295 (o) by placing a conservation easement around riparian areas. V. BANK PARCEL DEVELOPMENT PACKAGE A. All Bank Parcel Development Packages (BPDP) submitted underthis 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. The BPDP shall include detailed information consistent with the sections below concerning; 1) site location (14 -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 figure for each mitigation type. 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 the riparian buffers and other riparian areas on the Bank Parcel to produce Riparian Buffer 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 Bank Parcels. . 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. Page 4 of 14 Property Disposition & Long -Term Management for Each Bank Parcel E. Prior to the release of any credits, the Sponsor shall record permanent conservation easements at the County Register of Deed's office in the county in which the Bank Parcel is located 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 and Army Corps of Engineers (ACOE) 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 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 for Each Bank Parcel J. Following approval of the BPDP for each 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 BPDPs. It is the Sponsor's responsibility to confirm that the surety company is rated no less than an "A-" with each annual bond renewal. K. The amount of each Performance Bond 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 a Performance Bond, the Sponsor may elect to construct the project prior to the first credit release. M. For each Bank Parcel, 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 and K of this section: 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; Page 5 of 14 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 the Obligee on all performance bonds. VI. POST CONSTRUCTION DOCUMENTATION FOR EACH BANK PARCEL As -Built Report A. The Sponsor agrees to perform all necessary work, in accordance with the provisions of this Instrument and corresponding BPDPs, to establish, maintain, and monitor Randleman Lake Riparian Buffers or other riparian areas until Items B (1) and (2) of Section X have been satisfied. B. When all buffer mitigation activities have commenced, the Sponsor will submit an as -built plan and report for each Bank Parcel separately within 30 calendar days after completing the riparian buffer mitigation activities. Each As -Built report will describe any deviation from the approved BPDP and will document the following: 1. Buffer restoration and enhancement planting details, confirmation of fence installation, invasive species control, monitoring device locations, vegetation plot locations, and photo point locations. 2. Provide confirmation that the construction of all stream and wetland mitigation activities have been completed. 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 mitigation credits in both square feet and acres. 4. As -built map of the mitigation area showing where riparian restoration, enhancement and preservation were performed and any deviations to the Bank Parcel from what was approved in the BPDP. 5. Aerial map of the mitigation that was included in the approved BPDP. Financial Assurances for each Bank Parcel C. After completion of the restoration/construction on each 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 BPDP and As -Built Report. 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 the surety company is still rated no less than an "A-" with each annual bond renewals. 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 Page 6 of 14 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. E. For each Bank Parcel, once DWR has released 100% of all credits for completion of all Bank Parcel milestones described in Table 5 of Section VIII and in the corresponding BPDP, the Bank Sponsor will be released from its performance obligations under the performance bond required in C and D in this section. F. To comply with this section, DWR must be the Obligee on all performance bonds. Monitoring and Maintenance G. 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. H. 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 BPDP 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. J. 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 diffused flow, managing invasive species, and pest control will be included in the BPDP. Monitoring Reports for Riparian Buffer Credit K. 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 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 the 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 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 figures showing locations of sampling plots, permanent photo points, and location of transects, Etc.; and 4. Monitoring data, including specific vegetation 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 lodgers; and 6. Corresponding verification letters from designated local governments upon request; and Page 7 of 14 7. Corresponding Mitigation Transfer Certificates upon request; and 8. Proof of performance bond renewal to cover the next monitoring year (when applicable). Contingency Plans/Remedial Actions L. In the event a Bank Parcel fails to achieve the performance criteria described in this Instrument and in the approved BPDP, the Bank Sponsor shall develop necessary contingency plans in coordination with the DWR and implement appropriate remedial actions for the Bank Parcels and the Bank. Depending on the degree of remedial actions required, the DWR may modify the monitoring period. VII. CALCULATION OF MITIGATION CREDITS FOR EACH BANK PARCEL Riparian Buffer Credits A. All Riparian Buffer Credits shall be determined based on the ratios and percentages provided in 15A NCAC 0213 .0295 (m) and (n). B. Riparian buffer restoration on the two (2) Bank Parcels covered under this Instrument, as defined in 15A NCAC 0213 .0295 and can be used for Riparian Buffer Credit. C. Riparian buffer enhancement on the two (2) Bank Parcels covered under this Instrument , as defined in 15A NCAC 02B .0295, can only be used for Riparian Buffer Credit. D. Riparian buffer preservation on the two (2) Bank Parcels covered under this Instrument , as defined in 15A NCAC 02B .0295and described in 15A NCAC 02B .0295 (o)(5) can only be used for Riparian Buffer Credit. E. Riparian Buffer Credit is defined as one (1) buffer credit per one square foot or 43,560 buffer credits per one acre. Page 8 of 14 VIII. CREDIT RELEASE SCHEDULE A. Upon submittal of all appropriate documentation by the Sponsor, and subsequent approval by DWR, it is agreed that the mitigation credits associated with each individual Bank Parcel will become available for sale to a third party in accordance with Credit Release Schedules. B. A Credit Release Schedule shall be provided in each site-specific BPDP included in this Instrument and shall outline Bank Parcel milestones expected to be completed for each mitigation bank. Credit Release Schedules approved in the BPDP will be based on the completion of these Bank Parcel milestones. C. In general, Bank Parcel milestones and the percentage of credits most often released upon completion are described in Table 5.0 below: Table 5.0 - Credit Release Schedule for Riparian Buffer Offset Credits Task Project Milestone Credit Availablefor Sale 1 Instrument and BPDP Approved by DWR, Conservation Easement Recorded* and Financial Assurance Posted 20 2 Mitigation Site Earthwork, Planting and Installation of Monitoring Devices Completed 20 3 Monitoring Financial Assurance Posted and Approval of As -Built Report 10 4 Monitoring Report #1: Approved by the DWR** & financial assurance renewed 10 5 Monitoring Report #2: Approved by the DWR** & financial assurance renewed 10 6 Monitoring Report #3: Approved by the DWR** & financial assurance renewed 10 Item B(1) of Section X in this Instrument has been completed and approved 7 by DWR 5 No remaining credits will be released until the conservation easement has been assigned to an approved land trust or stewardship 7 Monitoring Report #4: Approved by the DWR** & financial assurance renewed 5 9 Monitoring Report #5: Approved by the DWR** and final site visit by DWR has been conducted 10 Total 100 ror 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 D. 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. E. 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. Page 9 of 14 IX. PROCEDURE FOR DEBITING AND CREDITING MITIGATION CREDITS Credit Ledger A. The Bank Sponsor shall.maintain one credit ledger for each mitigation type for each Bank Parcel under this Instrument: Credit ledgers shall provide the accounting for Riparian Buffer Credits in square feet 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 Attachment C of this Instrument or any updated versions to these templates as provided by DWR. Credit Processing C. Riparian Buffer Credits generated on these Bank Parcels will be used to provide mitigation for authorized buffer impacts within the Randleman Lake Watershed in accordance with 15A NCAC 02B .0295 (g). D. Riparian Buffer Restoration, Enhancement and Preservation credits generated on these two (2) Bank Parcels are not transferrable into nutrient offset credits. E. The Bank Sponsor shall obtain written verification of buffer mitigation required from the delegated local government in the Randleman Lake Watershed or DWR prior to debiting Riparian Buffer Credit from the individual Bank Parcel. F. 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. Mitigation Credit Transfer Certificates G. All credit sales will include a Mitigation Credit Transfer Certificate ("Certificate") that is required to be provided to the buyer of Riparian Buffer 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 and, (3) DWR project number for the BPDP as it appears in Table 1.0. 2. Credit Details: (1) date of receipt, (2) identify if full or partial payment, , and (3)) 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) 14 -digit HUC, (3) river basin, (4) nutrient strategy applicable to Page 10 of 14 the project with impacts, and/or (5) DWR authorization number or delegated local government requiring Riparian Butter Credits for this project. H. If the DWR determines 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 its responsibilities to the Bank Parcel and there are no mitigation credits left to sell. B. Bank Parcel Closure shall commence only after all the following events have occurred; 1. Transfer or assign the conservation easement and all 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 EACH 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(s). 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 the credits have been released in accordance with the credit release schedule in the BPDP 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 the credits have been released in accordance with 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 action shall be Page 11 of 14 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 listen in Section VI of this Instrument, 6. Credit Ledger review and approval of items listen 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. 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 this Instrument: This Instrument will become valid on the date of the last party's signature. H. Specific Language of this 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. 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. 1508. J. This Agreement shall be binding upon the parties and is entered into knowingly, intelligently and voluntarily. K. Notices: All Notices and other communication 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, received via email with a delivery receipt requested, 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: Wildlands Holdings V, LLC 1430 South Mint Street, Suite 104 Charlotte, NC 28203 swilkerson@wildlandseng.com Page 12 of 14 If to DWR: NC Division of Water Resources - 401 & Buffer Permitting Branch Attn: Nutrient Offset & Buffer 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. Page 13 of 14 WILDLANDS HOLDINGS V, LLC By: Shawn D. Wilkerson (Print) d • (Signature) vv Title: Tr"Lt. a�^T Date: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY— DIVISION OF WATER RESOURCES By:y\ c\CL/,A ju ,� zV• (Print) (Signature) Title: �i���,u IJi►��.r Date: Page 14 of 14 Updated Nutrient Offset Program & Buffer Mitigation Program 9/6/2016 UMBI Authorities for Wildlands Holdings V, LLC effective 4/3/19 ATTACHMENT A Authorities pertaining to the Randleman Umbrella 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. 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 .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 Randleman Lake Water Supply Watershed Buffer Nutrient Strategy Session Laws S.L. 2011-394 S.L. 1999-329 (part of G.S. 143B-282) Administrative Rules: 15A NCAC 2B .0248 Nutrient Management Strategy 15A NCAC 2B .0249 Wastewater Discharge Requirements 15A NCAC 2B .0250 Protection & Maintenance of Existing Riparian Buffers 15A NCAC 2B .0251 Stormwater Requirements Attachment B (1) The applicant has received an authorization certificate for impacts pursuant to Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter and is required to perform mitigation as a condition of the authorization certificate; or (2) The applicant has received a variance pursuant to Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter and is required to perform mitigation as a condition of a variance approval. Any applicant covered under this Paragraph shall submit to the Authority a written mitigation proposal that calculates the required area of mitigation and describes the area and location of each type of proposed mitigation. The applicant shall not impact buffers until the Authority approves the mitigation plan and issues written approval. (d) AREA OF IMPACT. The Authority shall determine the area of impact in square feet to each Zone as defined by the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter of the proposed riparian buffer by adding the following: (1) The area of the footprint of the use impacting the riparian buffer; (2) The area of the boundary of any clearing and grading activities within the riparian buffer necessary to accommodate the use; and (3) The area of any ongoing maintenance corridors within the riparian buffer associated with the use. The Authority shall deduct from this total the area of any wetlands that are subject to and compliant with riparian wetland mitigation requirements under 15A NCAC 02H .0506 and are located within the proposed riparian buffer impact area. (e) AREA OF MITIGATION REQUIRED ON ZONAL MITIGATION RATIOS. The Authority shall determine the required area of mitigation for each Zone by applying each of the following ratios to the area of impact calculated under Paraeranh (d) of thiq Rule- Basin/Watershed Zone 1 Ratio Zone 2 Ratio Neuse River Basin 15A NCAC 02B .0233 3:1 1.5:1 Catawba River Basin 15A NCAC 02B .0243 2:1 1.5:1 Randleman Lake Watershed 15A NCAC 02B .0250 3:1 1.5:1 Tar -Pamlico River Basin 15A NCAC 02B .0259 3:1 1.5:1 Jordan Lake Watershed 15A NCAC 02B .0267 3:1 1.5:1 Goose Creek Watershed 15A NCAC O2B .0607 3:1^ The Goose Creek Watershed does not have a Zone 1 and Zone 2. The mitigation ratio in the Goose Creek Watershed is 3:1 for the entire buffer. (f) AREA OF MITIGATION REQUIRED ON LOCATIONAL MITIGATION RATIOS. The applicant or mitigation provider shall use the following locational ratios as applicable based on location of the proposed mitigation site relative to that of the proposed impact site. Locational ratios shall be as follows: Location Ratio Within the 12 -digit HUCA 0.75:1 Within the eight -digit HUCB 1:1 Outside of the eight -digit HUCB 2:1 ^ Except within the Randleman Lake Watershed. Within the Randleman Lake Watershed the ratio is 1:1. B Except as provided in Paragraph (g) of this Rule. (g) GEOGRAPHIC RESTRICTIONS ON LOCATION OF MITIGATION. Mitigation shall be performed in the same river basin where the impact is located with the following additional specifications: (1) In the following cases, mitigation shall be performed in the same watershed where the impact is located: (A) Falls Lake Watershed, as defined in Rule .0275 of this Section; (B) Goose Creek Watershed, as defined in Rule .0601 of this Subchapter; (C) Randleman Lake Water Supply Watershed, as defined in Rule .0248 of this Section; (D) Each subwatershed of the Jordan Lake watershed, as defined in Rule .0262 of this Section; and (E) Other watersheds as specified in riparian buffer protection rules adopted by the Commission. (2) Buffer mitigation for impacts within watersheds with riparian buffer rules that also have federally listed threatened or endangered aquatic species may be done within other watersheds with the Attachment B same federally listed threatened or endangered aquatic species as long as the impacts are in the same river basin as the mitigation site. (h) MITIGATION OPTIONS FOR APPLICANTS. The applicant may propose any of the following types of mitigation: (1) Riparian buffer restoration or enhancement pursuant to Paragraph (n) of this Rule; (2) Payment of a compensatory mitigation fee to a compensatory buffer mitigation bank pursuant to Paragraph (i) of this Rule or payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to Paragraph 0) of this Rule. Payment shall conform to the requirements of G.S. 143-214.20; (3) Donation of real property or of an interest in real property pursuant to Paragraph (k) of this Rule; (4) Alternative buffer mitigation pursuant to Paragraph (o) of this Rule; or (5) Other buffer mitigation as approved by the Environmental Management Commission as a condition of a variance approval. (i) PURCHASE OF BUFFER MITIGATION CREDITS FROM A PRIVATE OR PUBLIC COMPENSATORY BUFFER MITIGATION BANK. Applicants who choose to satisfy some or all of their mitigation by purchasing mitigation credits from a private or public compensatory buffer mitigation bank shall meet the following requirements: (1) The compensatory buffer mitigation bank from which credits are purchased shall have available riparian buffer credits approved by the Division; (2) The compensatory buffer mitigation bank from which credits are purchased shall be located as described in Paragraphs (e), (f), and (g) of this Rule; and (3) After receiving a mitigation acceptance letter from the compensatory buffer mitigation bank, proof of payment for the credits shall be provided to the Authority prior to any activity that results in the removal or degradation of the protected riparian buffer. (j) PAYMENT TO THE RIPARIAN BUFFER RESTORATION FUND. Applicants who choose to satisfy some or all of their mitigation requirement by paying a compensatory mitigation fee to the Riparian Buffer Restoration Fund shall meet the requirements of Rule .0269 of this Section. Payment made to the NC Division of Mitigation Services (DMS) shall be contingent upon acceptance of the payment by the DMS. The DMS shall consider their financial, temporal, and technical ability to satisfy the mitigation request to determine whether they shall accept or deny the request. (k) DONATION OF PROPERTY. Applicants who choose to satisfy their mitigation requirement by donating real property or an interest in real property to fully or partially offset an approved payment into the Riparian Buffer Restoration Fund pursuant to Paragraph 0) of this Rule shall do so in accordance with 15A NCAC 02R.0403. (1) MITIGATION SITE REQUIREMENTS FOR APPLICANTS AND MITIGATION PROVIDERS. For each mitigation site proposed by an applicant or mitigation provider under Paragraphs (n) or (o) of this Rule, the Authority shall identify functional criteria to measure the anticipated benefits of the mitigation to the adjacent water. The Authority shall issue a mitigation determination that specifies the area, type, and location of mitigation and the water quality benefits to be provided by the mitigation site. All mitigation proposals shall meet the following criteria: (1) The location of the buffer mitigation site shall comply with the requirements of Paragraphs (f) and (g) of this Rule. In the Catawba watershed, buffer mitigation may be done along the lake shoreline as well as along intermittent and perennial stream channels throughout the watershed. (2) The mitigation proposal shall include a commitment to provide: (A) a perpetual conservation easement or similar preservation mechanism to ensure perpetual stewardship that protects the mitigation site's nutrient removal and other water quality functions; (B) a non -wasting endowment or other dedicated financial surety to provide for the perpetual land management and hydrological maintenance of lands and maintenance of structures as applicable; and (C) financial assurance in the form of a completion bond, credit insurance, letter of credit, escrow, or other vehicle acceptable to the Authority payable to, or for the benefit of, the Authority in an amount sufficient to ensure that the property is secured in fee title or by easement, and that planting or construction, monitoring and maintenance are completed as necessary to meet success criteria as specified in the approved mitigation plan. This financial assurance obligation shall not apply to the NC DMS. Attachment B (3) Diffuse flow of runoff shall be maintained in the riparian buffer. Any existing impervious cover or stormwater conveyances such as ditches, pipes, or drain tiles shall be eliminated and the flow converted to diffuse flow. If the applicant or mitigation provider determines that elimination of existing stormwater conveyances is not feasible, then they shall include a justification and shall provide a delineation of the watershed draining to the stormwater outfall and the percentage of the total drainage by area treated by the riparian buffer with the mitigation plan specified in Paragraph (n) or (o) of this Rule for Authority approval. During mitigation plan review and approval, the Authority may reduce credit proportionally. (4) Sewer easement within the buffer. If the proposed mitigation site contains a sewer easement in Zone 1, that portion of the sewer easement within Zone 1 shall not be suitable for buffer mitigation credit. If the proposed mitigation site contains a sewer easement in Zone 2, the portion of the sewer easement in Zone 2 may be suitable for buffer mitigation credit if: (A) the applicant or mitigation provider restores or enhances the forested buffer in Zone 1 adjacent to the sewer easement; (B) the sewer easement is required to be maintained in a condition that meets the vegetative requirements of the collection system permit; and (C) diffuse flow is provided across the entire buffer width. (5) The applicant or mitigation provider shall provide a site specific credit/debit ledger to the Authority at regular intervals as specified in the mitigation plan approval or mitigation banking instrument once credits are established and until they are exhausted. (6) Buffer mitigation credit, nutrient offset credit, wetland mitigation credit, and stream mitigation credit shall be accounted for in accordance with the following: (A) Buffer mitigation used for buffer mitigation credit shall not be used for nutrient offset credits; (B) Buffer mitigation credit shall not be generated within wetlands that provide wetland mitigation credit required by 15A NCAC 02H .0506; and (C) Buffer mitigation credit may be generated on stream mitigation sites as long as the width of the restored or enhanced riparian buffer meets the requirements of Subparagraph (n)(1) of this Rule. (m) RIPARIAN BUFFER MITIGATION UNITS. Mitigation activities shall generate riparian buffer mitigation units as follows: Mitigation Activity Square Feet of Mitigation Buffer Riparian Buffer Mitigation Units Generated Restoration Site 1 1 Enhancement Site 2 1 Preservation Site on Non -Subject Urban Streams 3 1 Preservation Site on Subject Urban Streams 3 1 Preservation Site on Non -Subject Rural Streams 5 1 Preservation Site on Subject Rural Streams 10 1 (n) RIPARIAN BUFFER RESTORATION SITE OR ENHANCEMENT SITE. Authority staff shall make an on- site determination as to whether a potential mitigation site qualifies as a restoration site or enhancement site as defined in Paragraph (b) of this Rule. Riparian buffer restoration sites or enhancement sites shall meet the following requirements: (1) Buffer restoration sites or enhancement sites may be proposed as follows: Buffer width (ft) Proposed Percentage of Full Credit Less than 20 0% 20-29 75% 30-100 100% 101-200 33% Attachment B (2) The applicant or mitigation provider shall submit a restoration or enhancement mitigation plan to the Authority for written approval. The plan shall demonstrate compliance with the requirements of this Paragraph and Paragraphs (1) and (m) of this Rule and shall also contain the following: (A) A map of the proposed restoration or enhancement site; (B) A vegetation plan that shall detail the activities proposed to ensure a final performance standard of 260 stems per acre at the completion of monitoring. The final performance standard shall include a minimum of four native hardwood tree species or four native hardwood tree and native shrub species, where no one species is greater than 50 percent of stems. Native hardwood and native shrub volunteer species may be included to meet the final performance standard of 260 stems per acre. The Authority may approve alternative vegetation plans upon consideration of factors, including site wetness and plant availability, to meet the requirements of this Part; (C) A grading plan (if applicable). The site shall be graded in a manner to ensure diffuse flow through the entire riparian buffer; (D) A schedule for implementation, including a fertilization and herbicide plan if applicable; and (E) A monitoring plan to document whether the site is expected to meet the final performance standards as defined in Part (n)(2)(B) of this Rule and other anticipated benefits to the adjacent water. The plan shall include a proposed schedule and method for monitoring the vegetative status of the restoration or enhancement site for five years, including the health and average stem densities of native hardwood tree or tree and shrub species that are to be counted toward the final performance standard. (3) Within one year after Authority approval of the mitigation plan, the applicant or mitigation provider shall present documentation to the Authority that the riparian buffer has been restored or enhanced unless the applicant or mitigation provider requests, and the Authority agrees in writing prior to that date, to a longer time period. (4) The applicant or mitigation provider shall submit written annual reports; unless an alternative schedule has been approved by the Authority during the mitigation plan approval, for a period of five years after completion of the activities identified in Part (n)(2)(B) of this Rule at the restoration site or enhancement site showing: (A) compliance with the monitoring plan approved pursuant to Part (n)(2)(E) of this Rule; and (B) that diffuse flow through the riparian buffer has been maintained. If the Authority determines that the native hardwood tree or tree and shrub species at the site are not expected to meet the final performance standards listed in Part (n)(2)(B) of this Rule, then the Authority may require that the applicant or mitigation provider replace trees or trees and shrubs as needed during that five-year period. If the Authority determines that diffuse flow through the buffer is not being maintained, then the Authority may require that the applicant or mitigation provider restore diffuse flow. If the Authority determines that the final performance standards listed in Part (n)(2)(B) of this Rule have not been achieved at the end of the five-year monitoring period, the Authority may require additional years of monitoring. The Authority shall make determinations referenced in this Subparagraph on a site specific basis based on the annual reports, any supplemental information submitted by the applicant or mitigation provider, or a site evaluation by the Authority_ (o) ALTERNATIVE BUFFER MITIGATION OPTIONS. Alternative buffer mitigation options are detailed in this Paragraph. Any proposal for alternative buffer mitigation shall be provided in writing to the Division, shall meet the content and procedural requirements for approval by the Division, shall meet the requirements set out in Paragraphs (1) and (m) of this Rule and the requirements set out in the named Subparagraph of this Paragraph addressing that applicable alternative buffer mitigation option: (1) Retroactive Credit. Alternative buffer mitigation sites constructed and within the required monitoring period on the effective date of this Rule shall be eligible for use as alternative buffer mitigation sites. Alternative buffer mitigation sites that have completed monitoring and were released by the Division on or within the past 10 years of the effective date of this Rule shall be eligible for use as alternative buffer mitigation sites. All alternative buffer mitigation site proposals submitted under this Subparagraph shall meet the following: (A) A map or maps of the proposed alternative buffer mitigation site; Attachment B (B) Documentation of pre-existing conditions showing that the proposed alternative buffer mitigation site met the criteria to qualify for the applicable alternative buffer mitigation type identified in the applicable Subparagraph of this Paragraph; (C) Documentation of the activities that were conducted at the proposed alternative buffer mitigation site to meet success criteria identified in the applicable Subparagraph of this Paragraph; and (D) Documentation that the proposed alternative buffer mitigation site met the success criteria identified in the applicable Subparagraph of this Paragraph. These alternative buffer mitigation sites shall receive credit in accordance with the criteria set forth in Paragraph (m) and Subparagraph (n)(1) of this Rule. (2) Coastal Headwater Stream Mitigation. Wooded buffers planted along Outer Coastal Plain headwater stream mitigation sites may also be approved as riparian buffer mitigation credit if the site meets all applicable requirements of Paragraph (n) of this Rule. In addition, all success criteria specified in the approval of the stream mitigation site by the Division shall be met. The area of the buffer shall be measured perpendicular to the length of the valley being restored. The area within the proposed buffer mitigation site shall not also be used as wetland mitigation. (3) Buffer Restoration and Enhancement on Non -Subject Streams. Restoration or enhancement of buffers may be conducted on intermittent or perennial streams that are not subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter. These streams shall be confirmed as intermittent or perennial streams by Division staff certified per G.S. 143-214.25A using the Division publication, "Methodology for Identification of Intermittent and Perennial Streams and Their Origins (v.4.11, 2010)" available at no cost at http://portal.ncdenr.org/web/wq/swp/ws/401/waterresources/streamdeterminations. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule. (4) Preservation of Buffer on Non -Subject Streams. Preservation of buffers on intermittent or perennial streams that are not subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter may be proposed in order to permanently protect the buffer from cutting, clearing, filling, grading, and similar activities that would affect the functioning of the buffer. These streams shall be confirmed as intermittent or perennial streams by Division staff certified per G.S. 143-214.25A using the Division publication, "Methodology for Identification of Intermittent and Perennial Streams and Their Origins (v4.11, 2010)." The preservation site shall meet the requirements of Subparagraph (n)(1) of this Rule and the requirements set forth in 15A NCAC 02R .0403(c)(7), (8), and (11). The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent of the total area of buffer mitigation. (5) Preservation of Buffers on Subject Streams. Buffer preservation may be proposed on streams that are subject to the applicable Rule .0233, .0243, .0250, .0259, .0267, or .0607 of this Subchapter in order to permanently protect the buffer from cutting, clearing, filling, grading, and similar activities that would affect the functioning of the buffer beyond the protection afforded by the existing buffer rules on sites that meet the definition of a preservation site. The preservation site shall meet the requirements of Subparagraph (n)(1) and the requirements set forth in 15A NCAC 02R .0403(c)(7), (8), and (11). The area of preservation credit within a buffer mitigation site shall comprise of no more than 25 percent of the total area of buffer mitigation. (6) Enhancement of grazing areas adjacent to streams. Buffer credit at a 2:1 ratio shall be available for an applicant or mitigation provider who proposes permanent exclusion of grazing livestock that otherwise degrade the stream and .riparian zone through trampling, grazing, or waste deposition by fencing the livestock out of the stream and its adjacent buffer. The applicant or mitigation provider shall provide an enhancement plan as set forth in Paragraph (n) of this Rule. The applicant or mitigation provider shall demonstrate that grazing was the predominant land use since the effective date of the applicable buffer rule. (7) Mitigation on ephemeral channels. For purposes of riparian buffer mitigation as described in this Part, an "ephemeral channel' is defined as a natural channel exhibiting discernible banks within a topographic crenulation (V-shaped contour lines) indicative of natural drainage on the 1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the U.S. Geologic Survey, or as seen on digital elevation models with contours developed from the most recent available LiDAR data, available at no cost at http://www.ncfloodmaps.com/lidar.com. Ephemeral channels only flow for a short period of time after precipitation in the drainage area and do not have periods of base flow Attachment B sustained by groundwater discharge. The applicant or mitigation provider shall provide a delineation of the watershed draining to the ephemeral channel. The entire area proposed for mitigation shall be within the contributing drainage area to the ephemeral channel. The ephemeral channel shall be directly connected to an intermittent or perennial stream and contiguous with the rest of the mitigation site protected under a perpetual conservation easement. The area of the mitigation site on ephemeral channels shall comprise no more than 25 percent of the total area of buffer mitigation. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule for restoration or enhancement. The proposal shall meet all applicable requirements of Subparagraph (0)(4) or (0)(5) of this Rule for preservation. (8) Restoration and Enhancement on Ditches. For purposes of riparian buffer mitigation as described in this Part, a "ditch" is defined as a man-made channel other than a modified natural stream that was constructed for drainage purposes. To be used for mitigation, a ditch shall meet all of the following criteria: (A) be directly connected with and draining towards an intermittent or perennial stream; (B) be contiguous with the rest of the mitigation site protected under a perpetual conservation easement; (C) stormwater runoff from overland flow shall drain towards the ditch; (D) be between one and three feet in depth; and (E) the entire length of the ditch shall have been in place prior to the effective date of the applicable buffer rule. The width of the restored or enhanced area shall not be less than 30 feet and shall not exceed 50 feet for crediting purposes. The applicant or mitigation provider shall provide a delineation of the watershed draining to the ditch. The watershed draining to the ditch shall be at least four times larger than the restored or enhanced area along the ditch. The perpetual conservation easement shall include the ditch and the confluence of the ditch with the intermittent or perennial stream, and provide language that prohibits future maintenance of the ditch. The proposal shall meet all applicable requirements of Paragraph (n) of this Rule for restoration or enhancement. (9) Stormwater Treatment Options. All stormwater treatment options shall meet the following requirements: (A) Structural options already required by other local, state, or federal rule or permit cannot be used as alternative buffer mitigation credit, except to the extent such measure(s) exceed the requirements of such rule or permit. Stormwater Best Management Practices (BMPs), including bioretention facilities, constructed wetlands, infiltration devices and sand filters are all potentially approvable BMPs by the Division for alternative buffer mitigation credit. Other BMPs may be approved only if they meet the nutrient removal levels outlined in Part (o)(9)(13) of this Rule. Existing or planned BMPs for a local, state, or federal rule or permit may be retrofitted or expanded to improve their nutrient removal if this level of treatment is not required by other local, state, or federal rules. In this case, the predicted increase in nutrient removal may be counted toward alternative buffer mitigation credit; (B) Minimum treatment levels: Any structural BUT shall provide at least 30 percent total nitrogen and 35 percent total phosphorus removal as demonstrated by a scientific and engineering literature review as approved by the Division. The mitigation proposal shall demonstrate that the proposed alternative removes an equal or greater annual mass load of nutrients to surface waters as the buffer impact authorized in the authorization certificate or variance, following the calculation of impact and mitigation areas pursuant to Paragraphs (d), (e), and (f) of this Rule. To estimate the rate of nutrient removal of the impacted buffer, the applicant or mitigation provider may use the "NC Division of Water Quality — Methodology and Calculation for determining nutrient reductions associated with Riparian Buffer Establishment" available at no cost at http://portal.ncdenr.org/c/document_library/get_file?uuid=55c3 758f-5e27-46cf-8237- 47f890d9329a&groupId=38364. The applicant or mitigation provider may propose an alternative method of estimating the rate of nutrient removal for consideration and review by the Division; (C) All proposed structural BMPs shall follow the Division's "2009 Stormwater Best Management Practice Design Manual" available at no cost at Attachment B http://portal.nedenr.org/web/Ir/bmp-manual. If a specific proposed structural BMP is not addressed in this Manual, the applicant or mitigation provider shall follow Chapter 20 in this Manual for approval; (D) All structural options are required to have Division approved operation and maintenance plans; (E) All structural options are required to have continuous and perpetual maintenance and shall follow the Division's "2009 Stormwater Best Management Practice Design Manual"; (F) Upon completion of construction, the designer for the type of BMP installed shall certify that the system was inspected during construction and that the BUT was constructed in conformity with plans and specifications approved by the Division; (G) Removal and replacement of structural options: If a structural option is proposed to be removed and cannot be replaced on-site, then a structural or non-structural measure of equal or better nutrient removal capacity, as determined by calculations submitted to and approved by the Division, in a location as specified by Paragraphs (f) and (g) of this Rule shall be constructed as a replacement; (I� Renovation or repair of structural options: If the applicant, mitigation provider, or the Division determines that a structural option must be renovated or repaired, it shall be renovated to provide equal or better nutrient removal capacity than as originally designed; and (I) Structural options, as well as their operation and maintenance, are the responsibility of the landowner or easement holder unless the Division gives written approval for another responsible party to operate and maintain them. Structural options shall be located in recorded drainage easements for the purposes of operation and maintenance and shall have recorded access easements to the nearest public right-of-way. These easements shall be granted in favor of the party responsible for operating and maintaining the structure, with a note that operation and maintenance is the responsibility of the landowner, easement holder, or other responsible party. (10) Approval for other alternative buffer mitigation options. Other alternative riparian buffer mitigation options not specified within this Rule may be submitted to the Division for review and recommendation to the Environmental Management Commission on a case-by-case basis. Any proposal submitted under this Paragraph shall provide documentation or calculations to demonstrate that the proposed alternative mitigation option removes an equal or greater annual mass load of nutrients to surface waters as a riparian buffer. Upon completion of the Division's review, and prior to recommendation to the Environmental Management Commission, the Division shall issue a 30 -calendar day public notice through the Division's website and the DWRwetlands Listserve. Division staff shall present their recommendations, including comments received during the public notice period, to the Environmental Management Commission for a final decision. If approved by the Environmental Management Commission, the alternative buffer mitigation option may be proposed by other applicants and mitigation providers. History Note: Authority G.S. 143-214.1; 143-214.5; 143-214.7; 143-214.20; 143-215.3(a)(1); 143-215.6A; 143- 215.6B; 143-215.6C,• 143-215.8A; 143-215.8B; 143-282(c); 143B -282(d); S.L. 1998-221; S.L. 1999-329, s. 7.1; S.L. 2001-418, s. 4.(a); S.L. 2003-340, s. 5; S.L. 2005-190; S.L. 2006-259; S.L. 2009-337; S.L. 2009-486; S.L. 2014-95; Temporary Adoption Eff.' October 24, 2014; Eff. November 1, 2015. Attachment C d y y Z Hy c Qu 1w gm � E LL 9 \ �m v 0 v '^ v a m _ y a a \ Y � C d � Ip IL m m v � d o' V '^ c v v E � c m Z a 'o c ui m f0 D o v � a` « a v m .6-2 v v v 3 v A m o c E v m v A v K t v V 0 O `v A 3 a v m \ C _v a K H Attachment C