D.C. Mun. Regs. tit. 21, § 2609
2609.1 The bonding requirements of this section do not apply to agencies of the District or federal government.2609.2 Except as provided in § 2609.4, the applicant shall file with the Department a surety bond in a form approved by the Department before a request for a permit or certification will be approved.2609.3 The bond shall be payable to the Department and will remain in effect until the permittee's successful completion of the mitigation project according to an approved mitigation plan.2609.4 Instead of a surety bond, the Department may accept one of the following alternate forms of security:- (a) An irrevocable letter of credit in an amount equivalent to the required bond, issued by a bank or financial institution organized or authorized to do business in the District, that expressly states that the total sum is guaranteed to be available and payable directly to the Department on demand in the event of forfeiture by the applicant; or
- (b) The fulfillment of mitigation requirements before initiation of the permitted activity, if that permitted activity will result in impacts to wetlands or streams.2609.5 If the applicant supplies an alternate form of security pursuant to § 2609.4, the applicant shall submit documentation of that form of security to the Department.2609.6 A bond or letter of credit shall not expire until construction of the mitigation project and the monitoring and maintenance requirements have been successfully completed pursuant to the approved mitigation plan.2609.7 The amount of the bond shall be the cost to acquire the land and provide mitigation, which shall be determined by the Department based on the prevailing market values of land in the District.2609.8 An applicant may request reduction of the bond amount by submitting a written request to the Department with a justification for reducing the bond amount, including estimated or actual costs to complete the mitigation project, and any other relevant information.2609.9 The Department will determine whether a lesser amount is sufficient to cover the cost of mitigation by considering the following:
2609.10 The permittee's liability under a bond shall continue until the Department receives and approves an as-built plan for the mitigation project and the surety or financial institution receives written notice from the Department that construction of the mitigation project was successfully completed.
2609.11 A surety bond or alternate form of security shall not be canceled by the surety, bank, or other issuing entity unless the issuing entity notifies the Department and the permittee of its intent to cancel the bond or other alternate form of security, in writing, by registered mail, not less than ninety (90) calendar days before cancellation.
2609.12 At least forty-five (45) calendar days before the cancellation date indicated in a notice given pursuant to § 2609.11, the permittee shall file with the Department a commitment from a surety, bank, or other issuing entity to provide a substitute bond or other alternate form of security that will be effective on the cancellation date indicated in the notice.
2609.13 The bond or alternate form of security shall be subject to forfeiture upon:
2609.14 The Department shall notify the permittee and the surety, bank, or other issuing entity of the Department's intention to initiate forfeiture proceedings in writing by certified mail.
2609.15 The permittee shall have thirty (30) calendar days from receipt of the notice of forfeiture to correct any deficiencies in compliance with the mitigation plan or
otherwise show cause why the bond or other instrument should not be forfeited.
2609.16 If the permittee fails to correct any deficiencies or show cause as required in § 2609.15, the bond or other security shall be forfeited.
2609.17 The Department shall prohibit a permittee from conducting a regulated activity in a wetland or stream if the permittee previously forfeited any bond or alternate form of security under this chapter, unless:
(a) The permittee repays the Department the cost incurred by the Department in completing the mitigation project that is in excess of the forfeited bond or alternate form of security plus interest of one-and-one-half percent ( 1.5%) per month; or
(b) If the mitigation project is still not completed, the permittee completes the mitigation project at its expense according to the approved mitigation plan and any approved modifications.
2609.18 The Department may require the permittee to provide documentation of a long-term protection mechanism on the land where mitigation has occurred, in accordance with § 2610.14, before the permittee may release a bond or alternate form of security.
SOURCE: Final Rulemaking published at 68 DCR 5254 (May 14, 2021).