Or. Admin. R. 141-085-0700 - Financial Security for CM Sites

(1) Purpose. Financial security instruments are required for CM sites as a guarantee that the CM will be constructed, monitored and maintained in accordance with removal-fill authorization requirements.
(2) Exceptions. Financial security Instruments are required for CM projects except in the following circumstances:
(a) No financial security instrument is required for projects conducted by government agencies;
(b) The Department may waive the requirement for a financial security instrument for wetland impacts 0.20 of an acre or less; and
(c) Financial security instruments are not required when CM is satisfied by purchase of credits from a wetland mitigation bank, an in-lieu fee program or payment in-lieu mitigation.
(3) Types of Financial Security Instruments. The Department may allow the following types of financial security instruments:
(a) Surety bonds executed by the permit holder and a corporate surety licensed to do business in Oregon;
(b) Assignment of deposit must be issued by a bank licensed to do business in Oregon, assigned to the Department, and upon the books of the bank issuing such certificates;
(c) Letters of credit issued by a bank authorized to do business in the State of Oregon that are irrevocable prior to release by the Department; and
(d) Such other financial instrument as the Department deems appropriate to secure the financial commitment of the applicant to fulfill the success requirements of the CM.
(4) Financial Security Form. The applicant must file the financial security instrument or instruments on a form or forms prescribed and furnished by the Department. Financial security instruments must be made payable to the Department and must be submitted to the Department prior to permit issuance or prior to release of credits from a mitigation bank.
(5) Commencement of the Liability Period. The period of liability will begin at the time of authorization issuance. The liability period must be renewed until the Department deems the CM to be complete and the Department releases the permittee from any further monitoring requirements.
(6) Determining the Amount. For issuance of an authorization requiring a financial security, the Department will set the amount of the financial security instrument equal to either the current cost of mitigation bank credit(s) within a service area covering the removal-fill site, or the current cost of payment in-lieu mitigation, whichever is greater. For mitigation banks, the amount must be sufficient to ensure a high level of confidence that the mitigation will be successfully completed.
(7) Financial Security Instrument Replacement. The Department may allow a permit holder to replace an existing financial security instrument with another if the total liability is transferred to the replacement. The Department will not release an existing financial security instrument until the permit holder has submitted and the Department has approved the replacement.
(8) Financial Security Instrument Release. The Department will authorize release of the financial security instrument when the CM meets the requirements of the CM plan and the conditions of the removal-fill authorization. The permit holder must file a request with the Department for the release of all or part of a financial security instrument. The request must include:
(a) The precise location of the CM area;
(b) The permit holder's name;
(c) The removal-fill authorization number and the date it was approved;
(d) The amount of the financial security instrument filed and the portion proposed for release; and
(e) A description of the results achieved relative to the permit holder's approved CM plan.
(9) Forfeiture. The Department may declare forfeiture of all or part of a financial security instrument for any project area or an increment of a project area if CM activities fail to meet success criteria, the permittee fails to provide monitoring reports, or fails to follow other permit conditions related to mitigation. The Department will identify, in writing, the reasons for the declaration.
(10) Determination of Forfeiture Amount and Use of Funds. The permit holder must forfeit the amount of the outstanding liability in the financial security instrument. The Department will either use the funds collected from the security forfeiture to complete the CM or deposit the proceeds in the Oregon Removal-Fill Mitigation Fund.

Notes

Or. Admin. R. 141-085-0700
DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 2-2019, amend filed 03/28/2019, effective 4/1/2019

Statutory/Other Authority: ORS 196.825 & 196.600 - 196. 692

Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990

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