2608 MITIGATION PLAN

2608.1 If a proposed project results in unavoidable impacts to wetlands or streams after first trying to avoid and then attempting to minimize such impacts, the applicant shall develop and implement a mitigation plan.

2608.2 The applicant shall submit the mitigation plan as part of the permit or certification application process. The mitigation plan shall include the following information:

1. (a) Names, addresses, and telephone numbers of the principals associated with project implementation;
2. (b) A proposal, if applicable, to use the District's Wetland and Stream Mitigation Trust Fund, consistent with §§ 2607.19 and 2607.20, to fulfill mitigation requirements;
3. (c) A description of mitigation projects proposed to fulfill the mitigation requirement, including the proposed source of hydrology and project location maps showing the geographic relationship between the area of potential impacts and the proposed mitigation sites;
4. (d) A description of the mitigation project objectives, including the wetland or stream type(s) and amount(s) of restoration, creation, enhancement and preservation that will be provided, and the manner in which the ecosystem functions of the mitigation project will address the needs of the watershed;
5. (e) A description of the factors considered during the site selection process, including consideration of watershed needs, on-site alternatives where applicable, and the practicability of accomplishing ecologically self-sustaining wetland creation, and/or stream or wetland restoration, enhancement, or preservation at the mitigation project site;
6. (f) A description of the legal arrangements, including site ownership, and site protection legal instruments, such as environmental covenants, that will be used to ensure the long-term protection of the mitigation project site;
7. (g) A description of baseline information on the ecological characteristics of the proposed mitigation project site. Baseline information may include the following:
8. (1) Descriptions of historic and existing plant communities;
9. (2) Historic and existing hydrology and soil conditions;

(3) Map showing the locations of the impact and mitigation site(s) or the geographic coordinates for those site(s);

(4) Other site characteristics appropriate to the type of resource being proposed as compensation;

(5) A map of the existing conditions at the mitigation site(s) that includes streams and wetlands with each type labeled, floodplain extent, ordinary high water elevation, normal water elevation, location of culverts, location of outfalls, location of tributaries, topographic features, thalweg, boundaries of areas dominated by invasive plant species, proposed protective buffers, and the proposed boundary of preservation; and

(6) A report on the delineation of wetlands and streams on the proposed mitigation project site(s).

(h) A determination of mitigation ratios based on the type and functions of the wetland or stream. For permittee-responsible mitigation, this should include an explanation of how the mitigation project will provide the required mitigation for unavoidable impacts to wetlands and streams resulting from the regulated activity;

(i) A mitigation work plan with detailed written specifications and work description for the mitigation project, including the following:

(1) Geographical boundaries and plan view scaled drawings that include the following:

(i) A vicinity map showing the mitigation project location, existing land use, and zoning;

(ii) The location, type, and area of proposed wetland or stream mitigation activities;

(iii) The proposed location of stockpile areas or staging areas;

(iv) The location of sediment and erosion control practices and disturbance areas;

(v) For stream restoration, the location of proposed ordinary high water elevation, normal water elevation, topographic features, thalweg, sinuosity measurements, and habitat enhancement features;

1. (vi) Detailed grading plans;
2. (vii) The limits of cut and fill areas;
3. (viii) The extent and acreage of existing vegetation and proposed vegetation planting zones;
4. (ix) The targeted canopy cover;
5. (x) The location of riparian buffer areas and plant species to be included in the buffer area;
6. (xi) The proposed location of stockpile areas or staging areas;
7. (xii) The locations of all areas used to stage machinery, equipment, or supplies;
8. (xiii) The proposed sources of borrow materials;
9. (xiv) Total rock fill to be used for habitat/stabilization measures;
10. (xv) Flow rate, hydrologic flow regime, and storm event flow characteristics;
11. (xvi) The proposed location, spacing, and type of propagules for each plant species; and
12. (xvii) The location of photo stations, monitoring wells, vegetation sampling points, and reference wetlands or streams (if available).- (2) Cross-section drawings of mitigation and buffer areas showing existing and proposed final site conditions including grade, elevation, slope, and expected maximum and normal water depths, and natural channel design measurements;
13. (3) A longitudinal profile of existing and proposed land surface;
14. (4) A description of how creation, restoration, enhancement, or, if applicable, preservation will replace lost functions;
15. (5) A description of creation, restoration, or enhancement techniques and site grading;

(6) A construction schedule that includes estimated start, completion dates, and planting timeline;

(7) A hydrologic analysis that includes:

(i) The proposed location of groundwater monitoring wells to collect groundwater data;

(ii) Estimated elevation and quality of surface water and groundwater as measured from the soil surface at a frequency and duration approved by the Department as part of its approval of the mitigation plan;

(iii) Sources of hydrology, such as groundwater, precipitation, and surface water, over various seasons of the year;

(iv) Reliability of the hydrologic sources throughout the various seasons of the year;

(v) Relevant precipitation data; and

(vi) Water budget analysis for a proposed wetland based on expected monthly inputs and outputs that will project water level elevations for a typical year, a dry year, and a wet year;

(8) A description of substrate conditions for:

(i) Existing soil and substrate conditions; and

(ii) Soil and substrate amendments needed to meet hydric soil characteristics and maintain the specified aquatic or plant species;

(9) Native vegetation or plants to be planted with the following information:

(i) The scientific and common names of plant species;

(ii) Planting dates for each species according to propagation method; and

(iii) Planting stock fertilizer or soil amendment requirements for

the entire five (5) year to ten (10) year monitoring period;

1. (j) An invasive plant monitoring plan establishing responsibility for the removal of invasive plants until permanent establishment of the wetland or stream system and its component parts;
2. (k) A maintenance plan, including a description and schedule of maintenance requirements to ensure the continued viability of the mitigation site once monitoring is completed;
3. (l) Performance standards to measure the effectiveness of the mitigation plan at achieving mitigation goals and offsetting the authorized impacts to wetlands, which shall:
4. (1) Be ecologically-based, objective, quantitative, verifiable, and relate to the specific goals of the mitigation plan;
5. (2) Include measures to ensure achievement of plant survival criteria in § 2610.6; and
6. (3) Describe criteria for measuring interim progress and determining whether the mitigation site is developing as expected.
7. (m) Monitoring requirements describing parameters to be monitored in order to determine if the mitigation project is meeting performance standards and, if adaptive management is needed, a methodology for monitoring each parameter and a schedule for monitoring and reporting monitoring results to the Department;
8. (n) A long-term management plan to ensure the long-term sustainability of the resource that describes how the mitigation project will be managed after performance standards have been achieved, including long-term financing mechanisms and responsibility for long-term management;
9. (o) An adaptive management plan to address failure to achieve or maintain performance standards, including identification of the party or parties responsible for implementing adaptive management measures;
10. (p) A description of financial assurances that will be provided in accordance with § 2609 and how these assurances are sufficient to ensure that the mitigation project will be successfully completed in accordance with its performance standards; and
11. (q) Other information the Department may require as necessary to determine

the appropriateness, feasibility, and practicability of the mitigation project.

2608.3 Proposed mitigation projects will be evaluated by the Department to assess:- (a) The likelihood for ecological success, functional uplift, and sustainability; and

- (b) The location of the mitigation project site relative to the impact site and the function of both the mitigation project site and impact site in the watershed.2608.4 In determining whether proposed mitigation adequately replaces wetland or stream functions and area, the Department will consider the following:- (a) Scope and extent of the mitigation;

- (b) Proximity of the mitigation to the wetland or stream;

- (c) Technical merits of the mitigation and its likelihood of long-term success;

- (d) Temporal losses of wetland or stream functions and ecological, recreational, and aesthetic values;

- (e) Adverse impact of the mitigation on natural resources; and

- (f) Relationship of the mitigation to ongoing natural resource management activities.2608.5 The Department may not approve a mitigation plan that includes invasive plants.2608.6 The Department may not approve a mitigation plan that includes a stormwater management practice required pursuant to chapter 5 of this title or a permit issued pursuant to CWA § 402 (33 U.S.C. § 1342) as part of the mitigation project.2608.7 The Department may approve or disapprove the mitigation plan as part of the permit application decision.2608.8 If the Department disapproves the mitigation plan, the Department will provide guidance to the applicant on the changes necessary for approval of the mitigation plan.2608.9 An applicant shall provide the Department or its designee access to the mitigation site to inspect during business hours.

SOURCE: Final Rulemaking published at 68 DCR 5254 (May 14, 2021).