Or. Admin. R. 141-085-0725 - Process for Establishing Mitigation Banks
(1) Pre-prospectus Meeting with the
Department. To initiate a mitigation bank, a prospective bank sponsor must
request a meeting with the Department for initial review of the mitigation
concept, site suitability, and content of the Prospectus.
(2) Department Review of Draft Documents,
Generally. The process for establishing a mitigation bank involves the
development of a Prospectus and Mitigation Bank Instrument (MBI) in
consultation with an interagency review team (IRT). In an effort to supply the
IRT with complete documents that meet the requirements of these rules, multiple
drafts and completeness reviews may be required.
(3) Submittal of the Prospectus. After
discussion of the mitigation concept with the Department, a mitigation bank
sponsor must submit a Mitigation Bank Prospectus. A Mitigation Bank Prospectus
must include:
(a) Site information including
location, size, ownership, soil mapping, and recent air photo;
(b) The objectives of the proposed mitigation
bank;
(c) How the mitigation bank
will be established and operated, in general terms;
(d) The proposed service area;
(e) A market or other analysis that
demonstrates the general need for the mitigation bank;
(f) A description of the technical
feasibility of the proposed mitigation bank;
(g) The proposed ownership arrangements and
long-term management strategy for the mitigation bank;
(h) How the mitigation bank addresses each of
the principal objectives for CM listed in OAR 141-085-0680; and
(i) Names and addresses of all landowners
within 500 feet of the bank.
(4) Prospectus Completeness Review. Within 30
calendar days of the Department's receipt of a Prospectus, the Department will
conduct an initial review to determine if the Prospectus is complete and the
information contained in the Prospectus adequately addresses the requirements.
Following the Prospectus completeness review, the Department will inform the
applicant of one of the following findings:
(a) The Prospectus is complete and will
proceed to the public notice; or
(b) The Prospectus is incomplete.
(5) Incomplete Prospectus. If the
Department determines that the Prospectus is incomplete, the Department will
notify the sponsor in writing and list the missing or deficient information.
The Department will take no action on the incomplete Prospectus until the
required information is submitted. The sponsor must resubmit the entire amended
Prospectus for reconsideration, unless instructed by the Department to do
otherwise. Submission of a new or amended Prospectus starts a new 30 calendar
day initial review period.
(6)
Department May Decline to Participate. If a mitigation bank sponsor cannot
demonstrate the need for the mitigation credits or the technical feasibility
and ecological desirability of the bank, the Department may decline to
participate in its development.
(7)
Public Notice of Prospectus. Upon determining that a Prospectus is sufficient,
the Department will issue a public notice entitled, "Intent To Create A
Mitigation Bank." The Department will:
(a)
Post the notice on the Department's web site for 30 calendar days;
(b) Send the notice to city and county
planning departments, affected state and federal natural resource and
regulatory agencies, adjacent landowners, conservation organizations and other
interested persons requesting such notices;
(c) Briefly describe the proposed mitigation
bank and reference the Prospectus provided by the bank sponsor; and
(d) Solicit comments for 30 calendar days
from the date of the public notice.
(8) Consideration of Comments Received During
the Public Notice Period. All comments received will be provided to the bank
sponsor and to the IRT. If comments are not received from an interested party
within the 30-day comment period, the Department will assume the entity does
not desire to provide comments.
(9)
Establishment of an Interagency Review Team (IRT) and the Role of the IRT. The
Department will invite participants to serve on an IRT within 30 calendar days
of the date of the public notice. The Department will serve as chair (or
co-chair) of the IRT.
(a) The Department will
invite the following to nominate a representative for an IRT:
(A) State natural resource agencies,
including Oregon Department of Environmental Quality, Oregon Department of Fish
and Wildlife, and Oregon Department of Land Conservation and
Development;
(B) Federal natural
resource agencies, including the U.S. Fish and Wildlife Service, U.S.
Environmental Protection Agency, and National Oceanic and Atmospheric
Administration (NOAA) Fisheries;
(C) Local regulatory and natural resource
agencies, including the Soil and Water Conservation District, and the local
Government Planner or equivalent.
(b) The Department may invite other members
of the IRT based on particular interest in the project by regulatory and
resource agencies, where such agencies have authorities and/or mandates
directly affecting, or affected by, the project, and persons and groups with
any specific expertise that may be required by the Department in development of
the MBI.
(c) The IRT acts in an
advisory capacity to the Department in the establishment and operation of
mitigation banks. The IRT may:
(A) Review and
provide input to the Department on the Prospectus and the comments received
during the public notice for use in the development of the MBI;
(B) Review and provide input on the draft
MBI;
(C) Review the performance of
the bank to assist the Department in determining compliance with the MBI;
and
(D) Provide input on adaptive
management of the mitigation bank, as necessary, to achieve the ecological
goals and objectives.
(10) Mitigation Bank Instrument (MBI). After
consideration of the public comments and input from the IRT, the bank sponsor
must develop a Draft Mitigation Bank Instrument (MBI) for submittal to the
Department. If the sponsor intends that the MBI serve as the permit
application, the sponsor must notify the Department of this intention at the
time of submittal of the first draft MBI. If an MBI is used in place of a
permit application, in addition to all requirements below, it must meet the
requirements for fees, content, and review procedures as specified in OAR
141-085-0545 through 141-085-0565. The draft MBI must contain:
(b) The applicant must also provide the
following information:
(A) The proposed
service area for the bank, including a map clearly showing recognizable
geographic place names and watershed boundaries;
(B) Demonstration of the need for the bank as
shown by past removal-fill activities, projected demographics for the proposed
service area, statements of expected activities from the local planning agency,
and like documentation;
(C) A
description of the projected losses of waters of this state in the service area
by HGM and Cowardin wetland classes or stream type as defined in OAR
141-085-0690;
(D) Proof of
ownership including a title report and disclosure of any and all liens or
easements on the bank site. If the sponsor does not own the land, the MBI must
contain explicit legal and recordable permission granted by the landowner to
perpetually dedicate the land upon which the proposed bank and any associated
buffer is located;
(E) A
description of the methods and results of the evaluation of ecological
stressors, such as contaminants, present at the bank site that could compromise
the wetland functions;
(F)
Description of the location and plant community composition of reference
site(s), unless an HGM reference data set is used;
(G) Description of the method(s) used to
determine the number of credits to be created at the proposed bank, as well as
those that will be used to account for and report credit and debit
transactions;
(H) The proposed
credit release schedule linked to achievement of specific performance
standards;
(I) Detailed contingency
plans describing how project deficiencies or performance failures will be
corrected, including assignment of responsibilities for failures such as
floods, vandalism, damage by pests and wildlife, invasion by weedy vegetation,
etc.;
(J) Land use
affidavit;
(K) A statement
indicating when each of the conditions of the MBI will terminate, unless they
are perpetual in nature; and
(L) A
draft interagency bank instrument agreement following the current template
document provided by the Department. Exceptions to the template must be
approved in writing by the Department.
(11) Review of the Draft MBI. Within 30
calendar days of the Department's receipt of a draft MBI, the Department will
conduct an initial review to determine if the MBI is complete and the
information contained in the MBI adequately addresses the requirements.
Following the review, the Department will inform the sponsor of its findings,
either:
(a) The draft MBI is complete and will
proceed to the IRT review process; or
(b) The draft MBI is incomplete.
(12) Incomplete Draft MBI. If the
Department determines that the draft MBI is incomplete or deficient, the
Department will notify the sponsor in writing and list the missing or deficient
information. The Department will take no action on the incomplete draft MBI
until the required information is submitted. The applicant must resubmit the
entire draft MBI for reconsideration, unless instructed by the Department to do
otherwise. Submission of a new or amended draft MBI starts a new 30 day review
period.
(13) IRT Review of the
Draft MBI. Upon notification that the draft MBI is complete, the sponsor must
provide copies to the IRT for review. At the next available IRT meeting, the
IRT will review and discuss the draft MBI and identify any issues that need to
be resolved prior to finalizing the MBI. IRT meetings will be held as necessary
to resolve issues identified by the co-chairs.
(14) Preparation of the Final MBI. When
revisions have been completed and issues identified through the IRT process
have been resolved, the sponsor must submit a final MBI to the Department and
IRT members.
(15) Final Approval of
the MBI. Within 30 calendar days of receipt of the final MBI, the Department
will notify the sponsor and the IRT whether the agency will approve the
MBI.
(16) Appeal of Department
Decision. Appeals of the Department decision to affirm or deny mitigation bank
approval will be administered according to OAR 141-085-0575.
(17) Construction Timing. At their own risk,
a sponsor may begin construction of a bank before approval of the final MBI if
the sponsor:
(a) Provides the Department with
detailed documentation of the baseline conditions existing at the proposed
site(s) of the bank; and
(b)
Receives written consent from the Department before undertaking any
construction. However, such consent from the Department does not exempt the
sponsor from having to apply for, and obtain a removal-fill permit, if
required. Written consent from the Department recognizes the sponsor's intent
to create a bank but does not guarantee subsequent approval of the MBI by the
Department. The Department assumes no liability for the sponsor's
actions.
Notes
Statutory/Other Authority: ORS 196.825 & 196.600 - 196.692
Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
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