Chapter NR 350

NR 350.002(1) (1) This chapter applies to all the following:

NR 350.002(1)(a) (a) Permitted and exempt wetland impacts requiring mitigation under s. 281.36, Stats.

NR 350.002(1)(b) (b) Wetland compensatory mitigation projects, including private mitigation bank, in-lieu fee program, and permittee-responsible projects, that are considered by the department as part of a review process conducted in accordance with chs. NR 103, 131, and 132.

NR 350.002(2) (2) This chapter does not apply to any of the following:

NR 350.002(2)(a) (a) Wetland compensatory mitigation conducted by the department of transportation as part of the liaison process pursuant to s. 30.2022, Stats.

NR 350.002(2)(b) (b) Compensatory mitigation conducted as a requirement of a federal permit issued prior to February 1, 2002.

NR 350.002(2)(c) (c) Compensatory mitigation for ferrous mining or bulk sampling activities in accordance with s. 295.60 (8), Stats.

NR 350.002 History History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22.

NR 350.003 NR 350.003 Definitions. In this chapter:

NR 350.003(1) (1) “As-built report” means a document summarizing the completed construction activities on a mitigation bank site, including any changes to the construction plan that occurred.

NR 350.003(2) (2) “Bank service area” or “service area” means the geographic area corresponding to a HUC 6 watershed within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank or an in-lieu fee program as determined in an agreement between the department and the U.S. army corps of engineers and referenced in a mitigation bank or in-lieu fee program instrument.

NR 350.003 Note Note: The terms “bank service area” and “service area” refer to the same watersheds as described in an agreement between the department and the United States army corps of engineers that adopts guidelines for wetland compensatory mitigation in Wisconsin. There are 12 service areas that correspond to HUC 6 watersheds, except for the Wisconsin River HUC 6, which is split into “Upper Wisconsin” and “Lower Wisconsin,” and portions of several HUC 6 watersheds adjacent to Lake Superior are combined and referred to as “Lake Superior.”

NR 350.003(3) (3) “Basin” means the Lake Superior, Lake Michigan, or Mississippi River basin.

NR 350.003(4) (4) “Compensation” or “compensatory mitigation” means the restoration, enhancement, creation, or preservation of wetlands expressly for the purpose of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

NR 350.003(5) (5) “Compensation search area” means the geographic areas within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank, including, in order, the HUC 8 watershed, the service area, and basin as the search is conducted.

NR 350.003(6) (6) “Compensation site plan” means a comprehensive document prepared by an applicant or mitigation sponsor that provides a description of baseline conditions, restoration activities and design, and desired outcomes of a proposed wetland mitigation project, is approved by the department as part of a mitigation bank instrument, permittee-responsible mitigation project, or non-department in-lieu fee program instrument modification, and is synonymous with the mitigation plan described in the Federal Mitigation Rule (33 CFR 332.4(c)).

NR 350.003(7) (7) “Corrective action” means an action taken by a mitigation sponsor to correct deficiencies in a wetland mitigation project as early as possible after the problem is noticed.

NR 350.003(8) (8) “Creation” means the manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site that results in a gain in wetland resource area and functions.

NR 350.003(9) (9) “Credit” means a unit of measure representing the attainment of wetland function earned over a finite area at a mitigation bank or ILF project.

NR 350.003(10) (10) “Credit ratio” means a multiplier used to determine the amount of wetland function over a finite area that requires mitigation due to wetland impacts as a result of an exempt or permitted project and used to determine the amount of wetland function over a finite area that is gained by mitigation activities on a mitigation project.

NR 350.003(11) (11) “Debit” means a unit of credit that is withdrawn from a mitigation project upon approval of a credit sale or upon approval of credits used by mitigation sponsors to fulfill mitigation requirements on their own exempt or permitted projects.

NR 350.003(12) (12) “Degraded wetland” means a wetland subjected to deleterious activities, such as drainage, grazing, cultivation, increased stormwater input, or partial filling, to the extent that natural wetland characteristics are severely compromised and wetland function is substantially reduced.

NR 350.003(13) (13) “Department” means the Wisconsin department of natural resources.

NR 350.003(14) (14) “Direct impacts” means adverse impacts to wetlands that occur immediately as the result of a permitted or exempt activity and that result in the loss of wetland function and area.

NR 350.003(15) (15) “Enhancement” means the manipulation of physical, chemical, or biological characteristics of an existing wetland resource to heighten, intensify, or improve a specific wetland function that results in the gain of that targeted wetland function but may also lead to a decline in other wetland function and does not result in a gain in wetland resource area.

NR 350.003(16) (16) “Exempt project proponent” means an entity or individual that discharges dredged or fill material into wetlands but is exempt from permit requirements pursuant to s. 281.36 (4), (4m), and (4n), Stats.

NR 350.003(17) (17) “Functional values” or “wetland function” means one or more of the following ecological or cultural services that wetlands provide, including storm and flood water storage and retention; hydrologic functions; filtration or storage of sediments, nutrients, or toxic substances; shoreline protection against erosion; habitat for aquatic organisms; habitat for resident and transient wildlife species; and recreational, cultural, educational, scientific, and natural scenic values.

NR 350.003(18) (18) “HUC 6” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 6-digit basin scale (the hydrologic unit code 6).

NR 350.003(19) (19) “HUC 8” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 8-digit sub-basin scale (the hydrologic unit code 8).

NR 350.003(20) (20) “In-lieu fee program” means a mitigation subprogram established by the department under s. 281.36 (3r) (e), Stats., or sponsored by a government or nonprofit entity that sells advanced or released mitigation credits to permittees or exempt project proponents to satisfy their mitigation requirements and uses funds from the sale of credits for restoration, enhancement, creation, or preservation of wetlands.

NR 350.003(21) (21) “Interagency review team” means the group of federal, tribal, state, and/or local regulatory agencies that facilitate the establishment of wetland mitigation banks and in-lieu fee programs through review and oversight of project development and operation.

NR 350.003 Note Note: As described in 33 CFR 332.8 (b), the U.S. army corps of engineers is the interagency review team Chair and other federal, tribal, state, and/or local regulatory agencies may participate with authority from the U.S. army corps of engineers, and as appropriate to review specific mitigation sites. The U.S. army corps of engineers seeks to include all public agencies with a substantive interest in the establishment of a mitigation bank or in-lieu fee program on the interagency review team. The department may participate on the interagency review team for mitigation banks and any non-department in-lieu fee programs at the discretion of the U.S. army corps of engineers. Members of the interagency review team review prospectuses, compensation site plans, mitigation bank instruments, construction as-built reports, monitoring reports, credit release requests, mitigation bank instrument modification requests, and other documents as needed and provide comments to the U.S. army corps of engineers. The U.S. army corps of engineers will give full consideration of any timely comments from other members but retains final authority for instrument approval for a mitigation bank or in-lieu fee program that is used to satisfy compensatory mitigation for federal wetland permits.

NR 350.003(22) (22) “Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.

NR 350.003(23) (23) “Mitigation bank” means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands.

NR 350.003(24) (24) “Mitigation bank instrument” means a legal document governing the establishment and operation of a mitigation bank, which includes the compensation site plan, financial and mitigation credit provisions, site ownership and legal protection, and long-term management plans.

NR 350.003(25) (25) “Mitigation project” or “mitigation site” means a wetland restoration, enhancement, creation, or preservation site that is developed with the intention of selling credits to permittees or exempt applicants in need of mitigation or a site developed by a permittee or exempt applicant to fulfill their mitigation requirements.

NR 350.003(26) (26) “Mitigation sponsor” or “sponsor” means any public or private individual or entity responsible for establishing and operating a mitigation bank, in-lieu fee program, or permittee-responsible mitigation project.

NR 350.003(27) (27) “Monitoring plan” means a narrative describing the data collection, analysis, and reporting requirements for documenting the change in wetland function on mitigation sites in a compensation site plan approved by the department.

NR 350.003(28) (28) “Nonfederal wetland” means a wetland that is not subject to federal jurisdiction under 33 USC 1344.

NR 350.003(29) (29) “On-site” means a mitigation project located within one-half mile of the impacted wetland.

NR 350.003(30) (30) “Performance standards” are observable or measurable physical, including hydrological, chemical, and/or biological attributes that are used to determine if a compensatory mitigation project meets its objectives.

NR 350.003(31) (31) “Permittee” means an applicant for a wetland general or individual permit under s. 281.36, Stats.

NR 350.003(32) (32) “Permittee-responsible mitigation project” means a mitigation project developed by a permittee or exempt project proponent, or their authorized agent or contractor, to complete required mitigation and for which the permittee or exempt project proponent retains full legal responsibility.

NR 350.003(33) (33) “Preservation” means removing a threat to, or preventing the decline of, ecologically significant or rare or high-quality wetlands through long-term site protection that alone does not result in a gain of wetland resource area or functions.

NR 350.003(34) (34) “Prospectus” means a preliminary wetland mitigation project design prepared by a mitigation sponsor and including descriptions of existing site conditions, site ownership and management, mitigation goals and objectives, and ecological suitability of the project.

NR 350.003(35) (35) “Re-establishment” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning ecological functions to a former wetland resource that results in a gain in wetland resource area and function.

NR 350.003(36) (36) “Rehabilitation” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing ecological functions to a degraded existing wetland resource that results in a gain in wetland resource functions but does not result in a gain in wetland resource area.

NR 350.003(37) (37) 

NR 350.003(37)(a) (a) “Restoration” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning ecological functions to a former or degraded wetland resource.

NR 350.003(37)(b) (b) “Restoration” includes re-establishment and rehabilitation.

NR 350.003(38) (38) “Secondary impacts” means impacts to wetlands that are causally linked to the proposed project.

NR 350.003 Note Note: Secondary impacts may include, but are not limited to, hydrologic impacts, changes in wildlife use to due habitat fragmentation or habitat conversion, or the introduction or increase of invasive or non-native plant species to a wetland.

NR 350.003(39) (39) “Temporary impacts” means adverse impacts to wetlands that are not permanent and are the result of a permitted or exempt project and meet one or more of the following requirements:

NR 350.003(39)(a) (a) Only occur during the non-growing season.

NR 350.003(39)(b) (b) Result in negligible impacts to wetland function or area.

NR 350.003(39)(c) (c) Restore preexisting wetland function at or soon after the conclusion of the permitted or exempt activity.

NR 350.003 Note Note: Temporary impacts may include, but are not limited to, open trenching, timber mat placement, or temporary vegetation clearing.

NR 350.003(40) (40) “Wetland” means an area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.

NR 350.003(41) (41) “Wetland delineation” means the standard procedure for determining the boundary of a wetland area, following the process required under s. 281.36 (2m), Stats.

NR 350.003 History History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (37) (b) made under s. 35.17, Stats., Register February 2022 No. 794.

NR 350.004 NR 350.004 Mitigation alternatives.

NR 350.004(1) (1) For mitigation required under the issuance of wetland individual permits per s. 281.36 (3n) (d), Stats., and for a discharge that is exempt from permitting requirements under s. 281.36 (4n) (b) or (c), Stats., the department may, in consultation with the U.S. army corps of engineers, allow mitigation to be completed using a wetland mitigation bank, participating in the in-lieu fee program, or completing a permittee-responsible project in the same service area as the site of the discharge.

NR 350.004(2) (2) For wetland mitigation banks, mitigation shall be allowed according to the following order of preference:

NR 350.004(2)(a) (a) Purchase of mitigation bank credits in the same HUC 8 watershed as the wetland impacted by the discharge.

NR 350.004(2)(b) (b) Purchase of mitigation bank credits in the same service area as the wetland impacted by the discharge.

NR 350.004(2)(c) (c) Purchase of mitigation bank credits in the same basin as the wetland impacted by the discharge.

NR 350.004(3) (3) The department may allow credits to be purchased from a different mitigation bank than one under sub. (2) or allow mitigation to be done through the in-lieu fee program if it determines that doing so would better serve natural resource goals, such as retaining flood water, improving water quality, improving hydrologic function, improving or restoring wildlife habitat, or more closely matching the impacted wetland type. The department may also consider economic factors when making this determination as described in s. 281.36 (3r) (ag), Stats.

NR 350.004(4) (4) Mitigation through the use of mitigation banks or the in-lieu fee program shall be preferred over permittee-responsible mitigation. However, permittee-responsible mitigation in the same service area as the wetland impacted by the discharge may be allowed upon review of all of the following factors:

NR 350.004(4)(a) (a) Technical feasibility.

NR 350.004(4)(b) (b) Ecological suitability.

NR 350.004(4)(c) (c) Likelihood of self-sustainability.

NR 350.004(4)(d) (d) Appropriateness of site location relative to proposed wetland impacts.

NR 350.004(4)(e) (e) Ability to offset lost wetland functions incurred by a proposed project.

NR 350.004(5) (5) If the department requires a permittee or exempt project proponent to purchase mitigation bank credits, the permittee or exempt project proponent shall purchase credits from a bank with a mitigation bank instrument that has been approved by the department and is listed on the department mitigation banking website and shall submit to the department an affidavit that the purchase is completed. The affidavit shall include all the following:

NR 350.004(5)(a) (a) The name of the mitigation bank.

NR 350.004(5)(b) (b) The project name.

NR 350.004(5)(c) (c) The project location, including township, range, and section, and municipality.

NR 350.004(5)(d) (d) The HUC 8 name and the service area name where the impacts will occur.

NR 350.004(5)(e) (e) The relevant agency permit number or exemption number.

NR 350.004(5)(f) (f) Acreage of impacts by wetland community type, if applicable.

NR 350.004(5)(g) (g) The number of credits purchased by wetland community type, if applicable.

NR 350.004(5)(h) (h) The signatures of both the permittee or exempt project proponent and the mitigation bank sponsor.

NR 350.004(6) (6) The department shall not issue a wetland individual permit or submit a notification of eligibility for an exemption unless one or more of the following applies:

NR 350.004(6)(a) (a) The permittee or exempt project proponent has provided proof that mitigation requirements have been completed, including an affidavit of credit purchase from a mitigation bank sponsor or an in-lieu fee program sponsor, or an approved compensation site plan for a permittee-responsible mitigation project.

NR 350.004(6)(b) (b) The department and permittee have agreed to a restoration plan for temporary or secondary impacts.

NR 350.004(6)(c) (c) The department has issued a wetland individual permit approval which specifies that the permittee must complete mitigation requirements prior to a discharge.

NR 350.004 History History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) made under s. 35.17, Stats., Register February 2022 No. 794.

NR 350.005 NR 350.005 Amount of compensatory mitigation required.

NR 350.005(1) (1) The department shall determine the amount of mitigation required for adverse impacts to wetlands associated with a wetland individual permit under s. 281.36 (3n) (d), Stats., or an exemption under s. 281.36 (4n) (b) or (c), Stats., based on the criteria in this section and shall inform the permittee or exempt project proponent of the determination.