justicedao/ipfs_state_laws huggingface dataset:
141-085-0710 Monitoring Requirements for CWM (1) Purpose. The purpose of the CM monitoring requirement is to provide information for the Department to: (a) Determine whether the CM complies with the conditions of the authorization and whether the CM has achieved its stated goals, objectives and performance standards; (b) Determine whether the CM is replacing wetland and tidal waters area, including any required buffers; (c) Determine whether the CM site is replacing functions and values; and (d) Provide information for removal-fill program monitoring. (2) Monitoring Reports. The permit holder must monitor the CM site and provide to the Department monitoring reports commensurate with CM site size and complexity. Those reports must include at minimum: (a) A post construction report demonstrating as built conditions and discussing any variation from the approved plan. Unless waived by the Department, the post construction report must be submitted within 90 calendar days of completing grading; (b) An annual written monitoring report that includes all data necessary to document compliance with CM conditions and performance standards; and (c) A sufficient number of permanent monitoring points to provide a representative sampling of the CM site and buffers. (3) Duration. Monitoring must be conducted for a minimum period of five growing seasons after the completion of all the initial plantings, unless otherwise specified by the Department. (4) Final Monitoring Report Requirements. To determine whether the CM project will meet acreage and functional replacement requirements, the Department must receive by not later than the fifth year of the monitoring program the following additional documentation: (a) Mapping of the CM site boundary and for CWM projects, verification of quantities of actual restoration, creation and enhancement acreages achieved by HGM and Cowardin class; and (b) Comparison of actual functions and values attained at the CM site compared to the predicted functions and values for the CM site identified in the CM Plan. (5) Additional Monitoring. The Department may require modifications to the CM plan, as well as require additional monitoring, if the Department determines that the CM fails to meet performance standards, replacement acreage requirements, or replace functions and values. (6) Release from Monitoring Obligations. When the Department determines that the CM complies with the conditions of the removal-fill authorization, the Department will notify the permit holder in writing that additional monitoring is not required. Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & ORS 196.795 - 196.990 History: DSL 10-2019, minor correction filed 04/16/2019, effective 04/16/2019 DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0715 Mitigation for Temporary Impacts Applicants for projects that involve temporary impacts to waters of this state must provide a rehabilitation plan for rectification of temporary impacts. Rectification must include re-establishment of pre-existing contours and pre-existing vegetation. A monitoring plan to confirm the reestablishment of waters of this state, or reestablishment of vegetation may be required. Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825 Statutes/Other Implemented: ORS 196.600-196.692 & 196.795 - 196.990 History: DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0720 Mitigation Banking Purpose, Applicability and Policies (1) Purpose and Applicability. These rules describe the requirements to establish and operate mitigation banks, which can be used to compensate for impacts to waters of this state. These rules pertain to mitigation banks that compensate for impacts to all types of waters of this state. (2) Coordination with the Corps of Engineers. The Department will coordinate with and participate on the Interagency Review Team as a co-chair agency with the Corps of Engineers to establish mitigation banks that also meet the federal regulatory requirements, as appropriate. (3) Development of Mitigation Banks is Encouraged. The Department encourages the development and will facilitate the expeditious approval of mitigation banks. (4) Compensation for Expected or Historical Losses to Aquatic Resources. Mitigation banks must be located and designed to compensate for expected or historical losses to aquatic resources by: (a) Maintaining regional functions and values of aquatic resources in their service area; (b) Matching the demand for credits with losses to the water resources of this state; and (c) Meeting other ecological or watershed needs as determined by the Department. (5) Banks Must Meet Principal Objectives for CM: Mitigation banks established and operated under these rules must meet the principal objectives of compensatory mitigation in OAR 141-085-0680. (6) Subject to All CM Rules. Mitigation banks are subject to all rules governing CWM and CNWM, as applicable. (7) Collaboration with Public Resource Protection and Restoration Programs. The Department encourages collaboration with voluntary watershed enhancement projects in conjunction with, but supplemental to, the generation of compensatory mitigation credit, when greater ecological gains can be recognized. Except where public funding is specifically authorized to provide compensatory mitigation, or the Department otherwise approves the use or accounting of such funds, funds dedicated to non-compensatory aquatic resource restoration or preservation projects will not generate transferable mitigation credit. Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0730 Establishment of Mitigation Credits (1) Credit Options. Credits can be established by using: (a) The minimum mitigation requirements as stated in OAR 141-085-0692 with adjustments, as appropriate; or (b) By applying a function based credit accounting method approved by the Department. Credits within a bank are determined by the difference between the baseline conditions of the bank prior to restoration, enhancement or creation activities, and the increased functions and values of the water resources of this state that result, or are expected to result, from those activities. (2) Bonus Credits. Bonus credits may be recognized, at the discretion of the Department in consultation with the IRT, to cover the reasonable costs of the addition of long-term stewardship provisions to existing banks that were approved without such measures. (3) Buffer Area Credits. Credits may be granted for buffers at the discretion of the Department. Such buffers will be subject to appropriate administrative site protection pursuant to OAR 141-085-0695. (4) Wetland Credits for Non-Wetland Areas. The Department may recognize wetland credits for improvement of non-wetlands such as in-stream channel habitat, riparian floodplains, non-wetland inclusions in wetland/upland mosaics, and other ecosystem components that provide ecological benefits to a larger wetland bank. Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0735 Release, Use and Sale of Mitigation Credits (1) Initial Release of Credits Must Be Specified in the MBI. The maximum number of credits that may be released for sale in advance of achieving performance standards will be clearly specified in the MBI. In no case may this amount exceed 30 percent of the total credits anticipated for each phase of bank construction. Advance releases require a commensurate financial security per OAR 141-085-0700. (2) Release of Credits Must Be in Compliance with MBI. The Department will not allow the sale or exchange of credits by a mitigation bank that is not in compliance with the terms of the MBI, the Removal-Fill Law, and in the case of a mitigation bank, all applicable rules governing CM. The Department may consult with the IRT in order to determine noncompliance and appropriate remedies, including enforcement action. The Department may, in consultation with the IRT, modify the credit release schedule, including reducing the number of credits or suspending credit transfers, when necessary to ensure that all credit transfers are backed by mitigation projects with a high probability of meeting performance standards. (3) Sales to Permit Applicants. After credits have been released to the bank sponsor, they may be sold to permit applicants upon approval by the Department that such credits will satisfy the mitigation obligation of a specific permit, or to resolve an enforcement case. Each credit sale transfers the mitigation obligation from the permit applicant to the sponsor. (4) Sales to Public Benefit Corporations or Public Bodies. At the request of a mitigation bank sponsor, the Department may authorize the withdrawal of mitigation bank credits by a public benefit corporation as defined in ORS 65.001 or a public body. Such entities will be designated by the Director for the purpose of reserving credits for future use in accordance with this subsection. The Director will manage such transactions to ensure that each credit is used no more than once to satisfy a use in accordance with this section. Mitigation Banks must report every credit sale to the Department and will provide an annual credit ledger. (5) The Department May Purchase Bank Credits. Funds from the Oregon Removal Fill Mitigation Fund may be used to purchase approved bank credits where such purchases will provide appropriate compensatory mitigation. (6) Records and Reporting. The Department will maintain a record of credit releases and withdrawals for each active wetland mitigation bank. Statutory/Other Authority: ORS 196.825 & 196.600-196.692 Statutes/Other Implemented: ORS 196.600-196.692 & 196.800-196.990 History: DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14 DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0740 Authorization for Mitigation Banks (1) Authorization Requirement. Bank sponsors must obtain a removal-fill permit for any removal-fill necessary to create a proposed bank in jurisdictional areas. At the discretion of the Department, the MBI may serve as the application if complete pursuant to OAR 141-085-0550, and may also serve as the Department's authorization. If the Department accepts the MBI as the application for a removal-fill permit, the bank sponsor must pay the applicable fee for a removal-fill application. (2) Baseline Conditions Must Be Approved Prior to Construction. When removal-fill permits are not required to establish a mitigation bank, the Department will approve baseline conditions prior to construction. (3) MBI Constitutes a Department Order. If a removal-fill permit is not required to construct a mitigation bank, the Department will consider the fully executed MBI an enforceable order. (4) Draft MBI May Be Circulated for Public Notice. For mitigation banks that do not require a permit for construction, or for such banks that the Department elects to allow the MBI to serve as the permit application, a 15-calendar day public notice will be provided to the public of the Department’s intent to approve the bank. The Department may elect to circulate a public notice of the MBI according to OAR 141-085-0560. If an MBI is used in place of a removal-fill permit application, it must meet the requirements for fees, content, and review procedures as specified in OAR 141-085-0545 through 141-085-0565. Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0745 In-Lieu Fee Mitigation The Department may approve the use of in-lieu fee mitigation as a category of the mitigation banking program (OAR 141-085-0720 through 141-085-0740). (1) Applicability. In-lieu fee mitigation involves the payment of funds to an approved sponsor to satisfy compensatory mitigation requirements for impacts to waters of this state. In-lieu fee mitigation differs from other forms of mitigation in that advanced credits can be released upon approval of a program Instrument, before Department approval of the mitigation site. (2) Policies. In-lieu fee mitigation is subject to all rules governing mitigation banking (OAR 141-085-0720 through 141-085-0745), as applicable. (3) Implementation. The Department will establish a method for implementing in-lieu fee mitigation, including, but not limited to the following elements: (a) Additional information required for a program instrument outlining the operation and use of an in-lieu fee program, including, but not limited to a planning framework for identifying and securing mitigation sites within the defined service area, proposed advance credit release and justification, and accounting procedures; (b) Timelines to implement compensatory mitigation projects to satisfy advance credit sales, and (c) Department approval of compensatory mitigation projects proposed by the in-lieu fee sponsor. (4) Qualifying Sponsors May Be Limited. The Department may limit the number and type of in-lieu fee sponsors. Statutory/Other Authority: ORS 196.825 & 196.600 – 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 1-2011, f. & cert. ef. 3-1-11 DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0755 Advance Mitigation (1) Set-Aside Excess Credits. As part of the existing, active individual removal-fill permit application process, an applicant may request that the Department consider that the proposed permittee-responsible CM (as documented in a CM Plan prepared in accordance with OAR 141-085-0705) could produce mitigation credits in excess of those needed to satisfy project requirements. (2) Additional Information Required. If the applicant desires to preserve the option of receiving additional mitigation credit from the excess credits for future projects by the same applicant and by up to one additional party, then the following additional information must be submitted as a part of the applicant's CM plan: (a) The specific area(s) of the CM site that compensates for the specific permitted effect, and identification of the specific areas of the CM site that are proposed for credit in future projects; (b) A table showing how much credit, under suitable mitigation accounting in OAR 141-085-0692, is being claimed at the CM site; and (c) The name of any additional person who would use the advance credits. (3) Applicant Assumes All Risk. If the applicant elects to pursue this option, he/she does so completely at his/her own risk. CM in advance does not create the presumption that a proposed future wetland impact will be authorized, or that the CM will be considered suitable CM. A separate alternatives analysis will be required for each and every separate individual removal-fill permit application. (4) Monitoring Requirements. Monitoring to determine if success criteria are met must continue for five years or until the success criteria are achieved, whichever is longer. Such monitoring requirements will apply to each designated mitigation area, or for the entire mitigation site if constructed at one time. (5) Conversion of Unused Credits. Unused credits may be converted to mitigation bank credits at the discretion of the Department and in accordance with OAR 141-085-0720 to OAR 141-085-0740. Statutory/Other Authority: ORS 196.825 & ORS 196.600 - 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990 History: DSL 2-2019, amend filed 03/28/2019, effective 04/01/2019 DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14 DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0770 Complaints and Investigations (1) Violations. A violation is: (a) Removal-fill without a valid authorization; (b) Non-compliance with any condition of an authorization; (c) Obtaining an authorization or reporting on conditions of an authorization by misrepresentation or by failure to fully disclose known material facts; (d) Failing to comply with any term of an enforcement agreement or order; (e) Failing to comply with the requirements of the Removal-Fill Law or these rules; or (f) Non-compliance with any condition of an approved wetlands conservation plan. (2) Reporting Suspected Violations; Complaints. Alleged or suspected violations may be reported as complaints to the Department in person, by e-mail, facsimile, telephone or in writing. When reports of alleged or suspected violations are submitted to the Department in confidence, as expressly requested by the complainant, and the information is not otherwise required by law to be submitted, the Department may keep the name of the person making the report confidential if the criteria set forth in ORS 192.501 or 192.502 are met. Statutory/Other Authority: ORS 196.825 & 196.600 - 196.692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0780 Revoking or Suspending an Authorization; Allowing Corrective Action (1) Revocation or Suspension if Out of Compliance. The Department may revoke or suspend an authorization if an alleged violator is not in compliance with any conditions of an authorization, or if the applicant failed to provide complete and accurate information in the permit application. (2) Suspension for Delinquency of Payment. Any authorization shall be suspended during any period of delinquency of payment of the renewal fee and will be treated as though no authorization had been issued. (3) Procedures to Revoke or Suspend Authorization. The Department may initiate the following proceedings to revoke an authorization: (a) The Department will issue a Notice of Intent to Revoke or Suspend to the alleged violator stating the intent to revoke or suspend the authorization; and (b) The Notice will include the following information: (A) A statement of the alleged violator's right to a contested case hearing within 20 calendar days of receiving the notice; (B) A statement of the authority and jurisdiction under which the contested case hearing is to be held; (C) Citations for the relevant sections of law and rule; (D) A short and plain statement of the matters asserted or charged as constituting the violation(s); and (E) A statement of any action that is necessary by the alleged violator to correct or offset the effects of the violation including, but not limited to, removal of filled material or replacement of removed material. (c) Any action specified in the notice will include a reasonable time period in which to complete the corrective action. (A) If the alleged violator completes such action within the specified time period, the revocation or suspension procedure will be terminated; and (B) If the authorization holder fails to request a contested case hearing, the Department may issue a final order revoking or suspending the authorization after presenting a prima facie case demonstrating that a violation has occurred. (4) Revocation or Suspension of Multi-Year Authorizations. If a person fails to comply with reporting requirements or any other condition of a multi-year authorization the Department may revoke the multi-year status and require annual renewal, suspend the permit pending correction, or take any other enforcement action available to the Department. (5) Appeals Procedures. Procedures for requesting an appeal on a revocation or suspension are as set forth in OAR 141-085-0775(4) and (6). Statutory/Other Authority: ORS 196.825 & 196.600 - 196. 692 Statutes/Other Implemented: ORS 196.600 - 196.692 & 196.795 - 196.990 History: DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12 DSL 1-2011, f. & cert. ef. 3-1-11 DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-086-0005 Definitions For purposes of these rules, the definitions contained in ORS 196.800 apply. In addition, the following definitions apply: (1) “Buffer Area” means a non-wetland area adjacent to wetlands or waters of the state that screens, shelters, protects or enhances the wetland or waterway resource value. (2) “Deep Draft Development Estuary” means those estuaries designated as such under OAR 160, division 17. (3) “Fully Offset” means to replace all wetland functions and values proposed for development in a plan area by wetland creation, restoration or enhancement. (4) “Inventory” means a map or series of maps and additional data showing wetland boundaries and conditions. (5) “Mitigation Plan” means a written plan detailing the location, timing, type and methods to replace proposed wetland losses through creation, restoration or enhancement of wetland functions and values and the means to assure the long-term protection and maintenance, and monitoring of mitigation sites. (6) “Monitoring Provisions” means a written plan that details the requirements and timing for monitoring and reporting wetland resources, functions and characteristics. (7) “Practicable Alternatives” means those alternatives which are available and capable of being done, taking into consideration environmental, economic and social factors. (8) “State Wetland Inventory” means an inventory which contains the location, wetlands types, and approximate boundaries of wetlands in the State of Oregon. This inventory is continually revised as additional information is received or obtained by the Division of State Lands. (9) “Substantial Change in Circumstances” means any changes in law or physical conditions which would adversely affect the wetland resources of a plan area. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.668 - 196.692 History: LB 6-1994, f. & cert. ef. 10-20-94 LB 4-1990, f. & cert. ef. 11-7-90