GE08-01(A): Deed Restrictions and Compensatory Mitigation within ODOT Operating Right of Way

Type: Advisory

Topic or Program: Geo-Environmental 

Final Number: GE08-01(B)

Effective Date: 01/07/2008

Updated Date: 03/05/2018

Signature on File: Susan Haupt, Geo-Environmental Section Manager

This advisory is to notify staff of potential problems with proposed new regulatory practices requiring ODOT to record deed restrictions on compensatory mitigation sites (CMS) located in operating right of way (ROW). Deed restrictions are intended to protect CMS in the long-term by prohibiting certain activities, but may be in direct conflict with standard highway maintenance and operation practices and with future infrastructure expansion. Deed restrictions are not explicitly required under Department of State Lands (DSL) rules (OAR 141-085-0141(1)(N)(i)) and are not appropriate on ODOT operating ROW.

Operating Right of Way means property utilized for the construction and implementation of the highway infrastructure. This type of property designation generally includes all properties located within the bounds of the highway right of way (property lines) that is actively being used to support transportation uses.

Deed Restrictions

ODOT is required under state law to replace wetlands and other natural resources that are impacted as a result of highway development and maintenance projects (OAR 141-085-0025(4)). Replacement typically consists of restoring and protecting similar habitat in a different location. Under the state Removal-Fill Law, ODOT is required to provide plans for the long-term protection of the CMS. In some instances the Department of State Lands (DSL) may require a CMS to have a protective real estate instrument or agreement (i.e., conservation easement, deed restriction, other) (OAR 141-085-0141(1) (N)(i)).

The DSL has recently proposed a requirement that ODOT record deed restrictions for a compensatory wetland mitigation site located within ROW adjacent to the freeway. Obtaining a deed restriction or other real estate protection instrument on property located within operating ROW is not appropriate due to inherent conflicts with highway maintenance, operation, and management of certain highway safety features, future infrastructure expansion of the roadway, or other future uses that may conflict with a property use restriction instrument.

Locating Compensatory Mitigation Sites

The intent of compensatory mitigation is to replace impacted resources in a location and manner that is sustainable. ODOT invests significant time and money in designing, constructing, maintaining, monitoring, and correcting mitigation sites. Therefore, ODOT should ensure that these sites are compatible with highway maintenance, management, operation, and future Agency actions. Because long-term protection of CMS in operating ROW cannot be reasonably assured, operating ROW should not contain such sites.

When presented with the expectation to provide compensatory mitigation, ODOT should work to find an appropriate mitigation site outside of operating ROW. ODOT employees need to educate regulatory agencies on the purpose of operating ROW and document the constraints associated with these areas.

In some cases compensatory mitigation can be located on ODOT ROW outside of areas regularly maintained or managed for transportation purposes. Refer to the “Evaluating Compensatory Mitigation Site Locations and Site Restoration to Minimize Conflicts with highway operations and maintenance” Bulletin (GE11-01(B)) for additional direction. To summarize, coordination needs to occur within ODOT in order to make a site specific determination as to whether wetland mitigation can be practicably located within non-operating right-of-way.

To ensure effective coordination occurs, the following steps are required:

1. Coordinate with the Environmental manager, District Maintenance manager (DM) during mitigation site scoping
2. Discuss the plan with the DM, Environmental manager, and Region Tech Center manager and provide an opportunity to review and approve a mitigation site before proposing a plan to the regulatory agencies.
3. When evaluating mitigation site suitability with routine roadside maintenance, consider the short and long-term issues or potential conflicts between the CMS and the management or use of ROW, such as (but not limited to):
1. Will the CMS interfere with typical highway maintenance requirements?
2. If the CMS requires physical protection (e.g. fenced), will fencing prevent necessary access or otherwise inhibit maintenance/management, or present a safety risk?
3. Will the CMS be a nuisance for maintenance (via attracting vagrants,noxious weeds)?
4. Is there adequate access to the CMS to allow it to be maintained?
5. Would expected highway right-of-way maintenance conflict with the goals of the CMS, such as maintaining native vegetation, shrubs and trees?
6. If a deed restriction is required for long term protection, to what extent can we be sure it won’t conflict with future highway expansions, management or operations?

This advisory information is directed to ODOT Environmental staff and their managers, Region Technical Center managers, Geo Environmental Section, Right of Way, the Office of Maintenance and Operations, District Maintenance staff and managers, Area Managers and ODOT liaisons.