2610.1 A permittee shall implement the approved mitigation plan within the time period required by the Department and specified in the mitigation plan.

2610.2 A permittee shall maintain and monitor all created, restored, and enhanced emergent wetlands, scrub-shrub wetlands, or streams for at least five (5) years.

2610.3 A permittee shall maintain and monitor created, restored, and enhanced forested wetlands for at least ten (10) years.

2610.4 The Department may require a longer monitoring period for wetlands or streams with slow development rates, such as bogs.

2610.5 Monitoring events must occur during the growing season and during a period with normal precipitation and groundwater levels.

2610.6 A permittee shall ensure that after five (5) years, greater than eighty-five percent (85%) of the site is vegetated by native species.

2610.7 In the case of a permittee who has proposed the use of natural re-vegetation as part of the creation, restoration, or enhancement project, after five (5) years, greater than eighty-five percent (85%) of the site shall be vegetated by native species similar to those found in the wetland lost or by a species composition agreed to by the Department.

2610.8 A permittee shall submit annual maintenance and monitoring reports for a minimum of five (5) years from the completion of the construction of the mitigation project to the Department, unless the permittee has received written notice from the Department that the maintenance and monitoring requirements have been fulfilled in less than five (5) years.

2610.9 The annual maintenance and monitoring reports shall include the following information:

(a) A description of how the mitigation project meets performance standards;

(b) Any change in status or performance from the previous year;

(c) Photographs of the mitigation project accurately representing the status of the project;

(d) The commercial source of planting stock whenever replanting is required;

(e) A description of any modifications that have been made or need to be made to implement the mitigation plan or plan component so as to meet the performance standards; and

(f) An as-built site design plan following completion of the mitigation project for year one (1) and year five (5).

2610.10 Upon presentation of appropriate credentials to the permittee or property owner, the Department may, consistent with section 205 of the Fisheries and Wildlife Omnibus Amendment Act of 2016, effective May 19, 2017 (D.C. Law 21-282; D.C. Official Code § 8-1731.05), enter the mitigation site at reasonable times during construction, the required monitoring period, and afterwards to inspect the mitigation project and assess the long-term viability of the mitigation site.

2610.11 The permittee's maintenance and monitoring requirements shall be deemed to be fulfilled upon receipt of written approval notice from the Department.

2610.12 If the mitigation project fails to comply with survival criteria, the Department may, through written notification to the permittee, extend the required monitoring period for up to an additional three (3) years.

2610.13 If the created or restored wetland or stream does not meet the performance standards by the final monitoring year period, including any extensions, the permittee shall submit a new mitigation plan to the Department in accordance with §§ 2607 through 2610 and, upon Department approval, implement the new mitigation plan.

2610.14 The permittee shall ensure the long-term protection of the wetlands, streams, riparian buffers, and uplands that comprise the overall mitigation project through one of the following protection mechanisms:

(a) A conservation easement;

(b) Conveyance of the wetlands, streams, riparian buffers, and uplands that comprise the overall mitigation project to an organization or public agency capable of protecting the area in perpetuity;

(c) A restrictive covenant; or

(d) Another mechanism approved by the Department.

2610.15 For mitigation projects located on government property, long-term protection may be provided through facility management plans or integrated natural resources

management plans.

2610.16 Any long-term protection mechanism shall include the following:

(a) Language granting the Department, including any successor agency, and its designee, access to the mitigation site for inspections;

(b) An absolute prohibition on the draining, dredging, removal, or filling of the created wetland site;

(c) Language that the restriction is binding on the grantor's personal representatives, heirs, successors, and assigns and runs with the land; and

(d) A provision requiring notification to the Department sixty (60) calendar days before any action is taken to void or modify the long-term protection mechanism.

2610.17 The long-term protection mechanism must, to the extent appropriate and practicable, prohibit incompatible uses that might otherwise jeopardize the objectives of the mitigation project.

2610.18 A permittee shall design mitigation projects, to the maximum extent practicable, to be self-sustaining once performance standards have been achieved, using appropriate siting to ensure that natural hydrology and landscape context will support long-term sustainability, and minimizing the use of active engineering features, such as pumps.

2610.19 If active long-term management and maintenance, such as invasive plant species control, maintenance of water control structures, or easement enforcement, are necessary to ensure long-term sustainability of the mitigation project, the permittee must provide for such management and maintenance, including providing any necessary long-term financing mechanisms.

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