Current through Register Vol. 39, No. 6, September 16, 2024
(a) For the purposes of this Rule:
(1) "cost" or "costs" shall mean the NC
Division of Mitigation Services In-Lieu Fee Mitigation Program's costs
associated with riparian buffer mitigation projects in a given rate area, as
described in this Rule; and
(2)
"credit" or "credits" shall mean the number of credits of riparian buffer
compensatory mitigation that have been:
(A)
requested by the applicant; and
(B)
specified in the approved certifications issued by the Department.
(b) The Program shall
calculate and publish one general riparian buffer mitigation payment rate
applicable to all river basins where Commission rules allow riparian buffer
mitigation payments and premium rates for specific watersheds, as identified in
Paragraph (c) of this Rule. Rates shall be published on the Division's website
(https://deq.nc.gov/about/divisions/mitigation-services).
All rates shall be based on the costs incurred by the program in those
watersheds.
(c) Premium Watershed
Rates. The Program shall apply premium watershed rates to:
(1) The Randleman Lake Watershed;
(2) The Jordan Lower New Hope Watershed;
and
(3) Any 8-digit cataloging
unit, mitigation service area, or smaller watershed where costs are 33 percent
greater than the general statewide rate shall have a surcharge equal to the
difference between the general statewide rate and the actual cost of mitigation
in that mitigation service area.
The initial rate for a premium watershed with fewer than
two riparian buffer mitigation projects that have reached the design stage
shall be the highest riparian buffer rate in effect under the Program. The
initial rate shall be revised for a premium watershed in the quarter following
a quarter in which at least two riparian buffer mitigation projects in that
watershed have reached design stage.
(d) Rate Adjustment Frequency. Initial rates
shall be effective as of the readoption effective date of this Rule. They shall
be adjusted quarterly whenever the rate calculation set forth in Paragraph (e)
of this Rule exceeds the existing rate by at least 10 percent. The rates shall
also be adjusted annually. Annual calculations and adjusted rates shall be
published by June 15 on the Program's website,
http://deq.nc.gov/about/divisions/mitigation-services,
and shall become effective July 1. Any quarterly rate adjustments shall become
effective on the first day of October, January, or April, as applicable, and
shall be published on the same website two weeks prior to that date. The rate
shall be adjusted within two business days if the Program suspends acceptance
of payments at the current rate
(e)
Payment rates shall be determined for a rate area using the following equation
and presented in per-credit values:
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Where:
(1) Actual
CostsPresentDay means the sum of all costs, adjusted for
inflation, as described in this Subparagraph. Costs shall mean project costs
and administrative costs and shall include the costs of completed projects,
terminated projects, and projects in process. At the time the rate is set, all
completed land acquisition contracts and expenditures shall be adjusted to
present-day values using the current North Carolina Department of Agriculture
and Consumer Services' Agricultural Statistics Farm Real Estate Values,
incorporated by reference including subsequent amendments and editions. All
other completed contracts and expenditures shall be adjusted to present day
values using the annual composite USACE Civil Works Construction Cost Index.
Future land acquisition contract costs for projects in process shall be
calculated using the Program's per-credit contract costs of the same type
adjusted to the inflated future value at the time the contracts will be
encumbered using the North Carolina Department of Agriculture and Consumer
Services' Agricultural Statistics Farm Real Estate Values. All other future
contracts shall be calculated using the Program's per-credit contract costs of
the same type adjusted to the inflated future value at the time the contracts
will be encumbered using the current composite USACE Civil Works Construction
Cost Index. For projects in process where the contract type has not been
determined, the cost of the project shall be calculated using the Program's
average per credit cost adjusted to the future inflated value when the project
will be initiated. Future year annual inflation rates shall be drawn from the
USACE Civil Works Construction Cost Index. If not available from either source,
future year annual inflation rates shall be calculated using the average annual
percentage change over the last three-year period;
(2) As used in this Rule:
(A) "Project Costs" means the total costs
associated with development of riparian buffer mitigation projects including
identification, land acquisition, project design, project construction,
monitoring, maintenance, and long-term stewardship.
(B) "Administrative Costs" means costs
associated with administration of the Program including staffing, supplies and
rent.
(C) The "cost for projects in
process" means the sum of expenditures of project contracts to date, contracted
cost to complete existing contracts, and the projected cost of future contracts
needed to complete those projects required to fulfill Program riparian buffer
mitigation obligations in the rate area.
(D) "Total Riparian Buffer
CreditsPresentDay" means the total amount of credits
provided by projects in the rate area at the time of calculation. If the Total
Riparian Buffer CreditsPresentDay for an existing or
completed project is reduced, the Actual CostsPresentDay
for that existing or completed project shall be proportionally
adjusted;
(3) The
Adjustment Factor shall be applied only in those calculation periods where
actual costs are calculated to be greater than actual receipts.
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The Adjustment Factor shall not comprise more than 60
percent of the overall rate;
(A)
"Actual Costs" shall be the same as Actual
CostsPresentDay as defined in Subparagraph (1) of this
Paragraph, except that the existing contracts and completed land acquisitions
shall not be adjusted for inflation.
(B) "Actual Receipts" means the sum of all
riparian buffer mitigation payments made to the Program in the rate area at the
time of calculation.
(C) "Number of
Riparian Buffer Credits Paid During Adjustment Period" means the average number
of riparian buffer mitigation credits paid to the Program over the last three
years in the rate area, multiplied by the adjustment period. If no payments
have been made to the Program in a rate area the number of credits paid shall
be 435,600 riparian buffer credits until greater than 435,600 riparian buffer
credits have been purchased in that rate area.
(4) Adjustment Period shall be one to four
years determined as follows for a rate area.
(A) One year if Actual Costs exceed Actual
Receipts by less than five percent.
(B) Two years if Actual Costs exceed Actual
Receipts by 5 percent or more but less than 15 percent.
(C) Three years if Actual Costs exceed Actual
Receipts by 15 percent or more but less than 25 percent.
(D) Four years if Actual Costs exceed Actual
Receipts by 25 percent or more.
Authority
G.S.
143-214.1;
143-214.5;
143-214.5(i);
143-214.7;
143-214.12;
143-214.21;
143-215.3(a)(1);
143-215.6A;
143-215.6B;
143-215.6C;
143-215.8B;
143B-282(c);
143B-282(d);
Eff. August 11, 2009;
Amended Eff. May 1, 2015;
Transferred from
15A NCAC
02B .0269 Eff. May 1, 2015;
Readopted Eff. March 1, 2018.
