Or. Admin. R. 141-085-0705 - Requirements for CM Plans

(1) CM Plan Content. CM Plan detail must be commensurate with the size and complexity of the proposed mitigation. A CM Plan is not required for proposed CM by means of using credits from an approved bank, advance mitigation site, in-lieu fee mitigation or payment in-lieu mitigation. A CM plan for permittee responsible CM must include the sections listed below.

(a) CM plan overview, including:

(A) CM ecological goals and objectives;

(B) The CM concept in general terms including a description of how the plan, when implemented, will replace the functions and values of the impacted waters of this state;

(C) For CWM, mitigation site acreage by method(s) of mitigation proposed (restoration, creation and enhancement) and by proposed HGM and Cowardin classification for each method;

(D) For CNWM involving a channel, the mitigation site acreage and linear feet of channel by method(s) of mitigation proposed (restoration, creation and enhancement); and

(E) Summary of proposed losses and gains of functions and values. The Department reserves the right to disqualify losses or gains attributable to actions under the applicant's control within seven years prior to the delineation or application submittal date, whichever comes first.

(b) CM site ownership and location information:

(A) CM site ownership information (name, address, phone). If this is different from the applicant, copies of legal agreements demonstrating permission to conduct the CM and willingness of the property owner to provide long-term protection are required;

(B) Legal description (Township, Range, Quarter and Quarter-quarter Section and tax lot or lots); and

(C) CM site location shown on a USGS or similar map showing the CM site location relative to the impacted site, longitude and latitude, physical address, if any (e.g., 512 Elm Street), road milepost (e.g., mp 25.21), and river mile (e.g., rm 3.2 to 3.3), or the name of the mitigation bank or in-lieu fee.

(c) A description of how the proposed CM addresses each of the principal objectives for CM as defined in OAR 141-085-0680.

(d) If permittee-responsible mitigation is proposed, CM site existing conditions, including the following, as applicable.

(A) If wetlands or tidal waters exist on the CM site, then the following information must be provided:

(i) A wetland determination/delineation report pursuant to OAR 141-090 for existing wetlands (or for tidal waters, any wetlands above highest measured tide elevation), as necessary to confirm acreage of proposed CM;

(ii) Identification of HGM and Cowardin class(es) and subclass(es) of all wetlands and tidal waters present within the CM site; and

(iii) A general description of the existing and proposed water source, duration and frequency of inundation or saturation, and depth of surface water for wetlands or tidal waters on the CWM site.

(B) If channels exist on the CM site, then the following information must be provided:

(i) Flow permanence (intermittent or perennial);

(ii) Stream size class (small, medium, or large), as set forth by Oregon Department of Forestry in OAR 629-635-0200 Sections (13) and (14); and

(iii) Whether the channel is Essential Indigenous Anadromous Salmonid Habitat (ESH).

(C) A description of the major plant communities and their relative distribution, including the abundance of exotic species within the CM site and associated buffers.

(D) Approximate location of all water features (e.g., wetlands, streams, lakes) within 500 feet of the CM site.

(E) Any known CM site constraints or limitations.

(F) Plans for CM by means of restoration must include documentation sufficient to demonstrate that the site was formerly, but is not currently, a water of this state.

(G) Plans that involve enhancement must include identification of the cause(s) of degradation and how the plan will reverse it and sustain the reversal.

(e) A functions and values replacement assessment. The applicant must demonstrate whether the functions and values that will be lost by the project will be replaced by the functions and values predicted at the CM site. Predicted functions and values should be based on the reasonably envisioned future state of the CM site based on the CM design. A summary of the assessments must be placed in the body of the CM plan, and supporting data sheets or assessment model outputs must be placed in an appendix of the CM Plan. A replacement assessment is not required when CM is proposed to be fulfilled by purchase of legacy credits, in-lieu fee mitigation credits not associated with a Department-approved project, or payment in-lieu mitigation.

(f) CM drawings and specifications, including:

(A) Proposed construction schedule;

(B) Scaled site plan(s) showing CM project boundaries, existing and proposed boundaries of waters of this state, restoration, creation and enhancement areas, buffers, existing and proposed contours, cross-section locations, construction access location and staging areas;

(C) Scaled cross sections showing existing and proposed contours and proposed water depths;

(D) Plant list for each Cowardin and HGM wetland and tidal waters class at the CWM site and buffers at all CM sites (include scientific names and wetland indicator status);

(E) Schematic of any proposed water control structures;

(F) Identification of any water rights necessary to sustain the intended design and functions. When water rights are required, the applicant must provide documentation that the water right has been secured prior to issuance.

(G) For CM sites involving tidal waters, plan views and cross-sections must show relevant tidal elevations relative to mean lower low water (MLLW) using the nearest local tidal datum. The elevation of MLLW must be referenced to the North American Vertical Datum 1988 (NAVD88).

(g) Proposed CM performance standards. The applicant may propose to use applicable pre-defined performance standards as approved by the Department, or may provide CM site-specific performance standards that:

(A) Address the proposed ecological goals and objectives for the CM;

(B) Are objective and measurable; and

(C) Provide a timeline for achievement of each performance standard.

(h) A description of the proposed financial security instrument. The Department will determine the amount of security required. A final financial security instrument will be required prior to permit issuance unless otherwise approved by the Department.

(i) A monitoring plan including specific methods, timing, monitoring plot locations, and photo-documentation locations.

(j) A long-term maintenance plan describing:

(A) How the applicant anticipates providing for maintenance of the CM site beyond the monitoring period to ensure its sustainability (e.g., maintenance of any water control structures, weed management, prescribed burning, and vandalism repair);

(B) Expected long-term ownership of the CM site and the anticipated responsible party or parties for long-term maintenance; and

(C) How the maintenance activities are anticipated to be funded.

(k) The CM plan must identify the long-term protection instrument for the CM site in accordance with OAR 141-085-0695.

(l) If permittee-responsible mitigation is proposed and the application for a permit or authorization is submitted on behalf of a closely held corporation, limited partnership, limited liability company or trust, the Department will require from each shareholder or stockholder, limited partner, member, trustee, current beneficiary or other principal:

(A) A joint and several personal guarantee securing compliance with mitigation obligations; and

(B) A written agreement to make all reasonable efforts to maintain the business entity in active status until all mitigation obligations have been satisfied.

(C) For the purpose of subsection (L) of this section, a "closely held corporation" is one in which all shares are held by less than five individuals.

(m) The Department may require additional information as necessary to determine the appropriateness, feasibility and sustainability of the proposed CM and at any time prior to the permit decision may make recommendations for improvements to CM plans.

(2) CM Plans Using Preservation. A CM plan using preservation must include:

(a) Functions and values assessment of the removal-fill site and site proposed for preservation;

(b) Maps showing the preservation site including all delineated wetlands or tidal waters, and any associated buffers, to be conserved;

(c) Documentation demonstrating that the proposed preservation site meets the requirements of OAR 141-085-0690(2);

(d) The surrounding land uses and an analysis of both the short-term and long-term known and probable effects of those land uses and activities on the preserved waters of this state, including any associated buffers;

(e) Measures that may be necessary to minimize the effects of surrounding land uses and activities on the preserved waters of this state, including the use of buffers;

(f) Identification of the party or parties responsible for long-term protection of the preservation site;

(g) A long-term protection instrument;

(h) A long-term management plan with a funding mechanism that addresses the specific management needs to optimize and maintain functionality and ecological sustainability of the waters of this state and any associated buffers to be preserved; and

(i) The protection instrument, management plan and funding mechanism must be in place prior to issuance of the authorization.

(3) Authorization Conditions for CM Plans.

(a) The Department will review the CM plan for sufficiency. In approving the final CM plan, the Department may impose authorization conditions necessary to ensure compliance.

(b) The approved CM plan becomes an enforceable part of the removal-fill authorization. In the event of conflict between CM Plan provisions and removal-fill authorization conditions, the authorization conditions prevail.

(c) Regardless of the expiration date of the authorization, all compensatory mitigation conditions remain enforceable until the Department declares that the CM has been successful.

(d) The permit holder cannot delegate responsibility for CM requirements, unless the Department has officially transferred the mitigation obligation.

(e) If applicable, the Department will approve necessary draft administrative protection instrument(s) prior to permit issuance. A copy or copies of the recorded administrative protection instrument(s) must be submitted to the Department with the post construction report unless the Department approves another schedule.

(f) For authorizations involving payment in-lieu mitigation as CM:

(A) The individual removal-fill permit or letter of authorization for an activity will not be issued until payment has been made as approved by the Department; and

(B) Once an authorized removal-fill permit activity has begun, the payment is non-refundable.

(g) For authorizations involving a mitigation bank or in-lieu fee credit purchase, proof of the purchase is required prior to issuance of the authorization.

Notes

Or. Admin. R. 141-085-0705

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; DSL 9-2019, minor correction filed 04/16/2019, effective 4/16/2019

Statutory/Other Authority: ORS 196.825 & ORS 196.600-196.692

Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990