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)(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)(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)(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.
NR 350.005(2)
(2) The department will determine the amount of mitigation required on a case-by-case basis based on the quality and type of wetlands impacted, the duration of the impacts, the measure of lost wetland function, the temporal loss of wetland function, and the location of the proposed mitigation. The department shall ensure that the loss of wetland function due to adverse impacts associated with an individual permit or exemption is compensated for with an appropriate mitigation amount. The department shall evaluate the lost function of impacted wetlands using one of the following methods:
NR 350.005(2)(a)
(a) The department may use an appropriate wetland functional or condition assessment method such as the Wisconsin rapid assessment method, or another department approved method designed to measure impacts to wetland functions and values.
NR 350.005(2)(b)
(b) The department may use a crediting system based on wetland type, location, or function to measure wetland impacts and wetland mitigation potential. If mitigation is required for adverse impacts to wetlands and the department uses a crediting system to evaluate the impacts, all of the following apply:
NR 350.005(2)(b)1.
1. If the department requires the permittee or exempt project proponent to purchase mitigation bank credits from a wetland mitigation bank, the mitigation required for the wetland impacts shall be no less than 1.2 credits per one acre of direct impacts for mitigation bank credits purchased in the same service area and of the same wetland community type. The department may require a higher mitigation ratio for bank credits under the following circumstances:
NR 350.005(2)(b)1.a.
a. The ratio may be increased for the purchase of mitigation bank credits out-of-kind from the impacted wetland community type.
NR 350.005(2)(b)1.b.
b. The ratio may be increased for the purchase of mitigation bank credits in a different service area than where the wetland impacts are to occur.
NR 350.005(2)(b)1.c.
c. The ratio may be increased for the purchase of mitigation bank credits to offset temporal loss of wetland functional values associated with the mitigation credits.
NR 350.005(2)(b)1.d.
d. The ratio may increase to fully compensate for impacts to wetland function and acreage.
NR 350.005(2)(b)2.
2. If the department requires the permittee or exempt project proponent to purchase credits from an approved in-lieu fee program, the ratio for mitigation shall be no less than 1.45 credits per one acre of direct impacts to compensate for the adverse impacts to wetlands and to account for the temporal loss of wetland acres and function.
NR 350.005 Note
Note: The department makes decisions on the amount of mitigation required in consultation with the U.S. army corps of engineers and in accordance with federal wetland mitigation regulations and guidelines.
NR 350.005(2)(b)3.
3. If the department determines that the permittee or exempt project proponent shall complete a permittee-responsible mitigation project for direct wetland impacts, the starting mitigation ratio shall be no less than 1.2 credits per one acre of direct impacts. The required mitigation amount for a permittee-responsible mitigation project shall be determined on a case-by-case basis and may include ratio increases for impacts to rare wetland types, out-of-kind wetland mitigation, temporal wetland functional loss, or for mitigation in a different service area than where the discharge occurred.
NR 350.005(3)
(3) The department may determine that mitigation is required for secondary impacts to wetlands associated with wetland individual permits or exemptions.
NR 350.005 Note
Note: The department may require mitigation for secondary impacts to wetlands such as conversion of wetland type or hydrologic impacts.
NR 350.005(4)
(4) The department may determine that mitigation is required for temporary impacts to wetlands associated with wetland individual permits or exemptions.
NR 350.005 Note
Note: The department may require mitigation for temporary impacts to wetlands such as forested wetland clearing, or temporary impacts to any wetland plant community that is dominated by native plant species.
NR 350.005 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22. NR 350.006(1)(1)
For mitigation bank projects under ss.
NR 350.008 to
350.009, and permittee-responsible mitigation projects under s.
NR 350.011, the department may evaluate the wetland function that will be restored, created, enhanced, or preserved by a mitigation project with any of the following methods:
NR 350.006(1)(a)
(a) A wetland functional or condition assessment method such as the Wisconsin rapid assessment method, or another department approved method designed to measure wetland impacts.
NR 350.006(2)
(2) The location of existing wetland boundaries for use in calculating acreage of wetland at a mitigation site shall be made by a mitigation sponsor through the completion of a wetland delineation under s.
281.36 (2m), Stats., or by an alternative method approved by the department.
NR 350.006(3)
(3) If the department uses a crediting system, the department shall calculate the appropriate amount of credit produced by a mitigation site based on information provided in the compensation site plan under s.
NR 350.007 (6) and may also use field collected data by the department or by a partner agency.
NR 350.006(4)
(4) Reestablishment of hydrology, land contours, and native plant communities on a former wetland site with hydric soils will receive up to one credit for every one acre restored.
NR 350.006(5)
(5) Rehabilitation of multiple wetland functions on an existing wetland site will generally receive less credit than reestablishment but may receive up to one credit for every one acre restored.
NR 350.006(6)
(6) Credit for enhancement of degraded vegetation on an existing wetland site will generally receive less credit than reestablishment or rehabilitation but may receive up to one credit for every one acre enhanced. Proposed activities that result in conversion of one wetland type to another wetland type will generally not be given credit. The department may consider calculating credit for these activities on a case-by-case basis when the mitigation sponsor demonstrates that conversion activities will enhance wetland functions.
NR 350.006(7)
(7) The department will only allow creation if the department determines that the planned creation will provide significant wetland function. Any creation accepted by the department will generally receive lower credit than reestablishment or rehabilitation but may receive up to one credit for every one acre created. A permittee-responsible mitigation project involving creation shall adequately compensate for adverse impacts to wetlands.
NR 350.006(8)
(8) The department will allow preservation at less credit than other restoration or enhancement activities if the proposed mitigation project meets all of the following criteria:
NR 350.006(8)(a)
(a) The mitigation project will preserve wetland resources under demonstrable threat of destruction or adverse modifications. Threat of destruction or adverse modifications includes water quality degradation, water quantity loss, or habitat destruction as the result of development, logging, mining, or other land use changes that are imminent based on demonstrable evidence on or adjacent to the proposed mitigation site.
NR 350.006(8)(b)
(b) The mitigation project will preserve wetland resources that provide important physical, chemical, or biological functions for the watershed.
NR 350.006(8)(c)
(c) The mitigation project will preserve wetland resources that contribute significantly to the ecological sustainability of the watershed or are considered rare and high-quality wetlands.
NR 350.006(8)(d)
(d) The mitigation project permanently protects the preserved site through an appropriate real estate or other legal instrument, such as a conservation easement or title transfer to a public agency or land trust.
NR 350.006(9)
(9) The department may allow credit for wetland areas according to their mitigation activity type if a mitigation project proposes to include areas of shallow or deep marsh if all of the following are met:
NR 350.006(9)(a)
(a) The shallow or deep marsh areas on the site may receive credit if they provide increased wetland function, meet approved performance standards, and allow the other areas of the site to provide increased wetland function and meet performance standards.
NR 350.006(9)(b)
(b) The shallow or deep marsh areas of the site are ecologically suitable to the landscape as evidenced by historic and current site conditions and are proposed to be constructed according to the best available scientific understanding of natural, self-sustaining conditions.
NR 350.006(10)
(10) If engineered structures that require active management, such as berms, dikes, or water control structures, are proposed to be constructed on the site, all of the following apply:
NR 350.006(10)(a)
(a) The structures must only be necessary to restore the site to the extent practicable considering historic and current site conditions, historic and current watershed features, and will result in wetland communities that are appropriate for the hydrology on site and in the proximate watershed.
NR 350.006(10)(b)
(b) The mitigation sponsor shall provide maintenance and monitoring plans, identify the person or entity responsible for long-term maintenance, and identify financing mechanisms to ensure continued operation of those structures and these shall be reviewed by the department as part of a compensation site plan under s.
NR 350.007 (4).
NR 350.006(11)
(11) The department may require a buffer zone on the mitigation site boundary to protect the site from potential adverse impacts from neighboring land uses or conditions. The department may award less credit for restoration, enhancement, or creation activities in a buffer zone than for similar restoration, enhancement, or creation activities not occurring in the buffer zone.
NR 350.006(12)
(12) If a mitigation project includes areas of vegetation establishment on uplands, the department will allow credit at no higher than one credit for every four acres established and the total upland buffer credits on a project shall not exceed 25 percent of the total mitigation project credits. Any credits produced from upland restoration activities will be released as wetland credit based on the proportion of the total acreage projected for each proposed wetland type.
NR 350.006(13)
(13) The department will not award mitigation credit for projects used primarily as stormwater or wastewater treatment facilities or similar projects under s.
NR 103.06 (4).
NR 350.006 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; corrections in (1) made under s. 13.92 (4) (b) 7. and s. 35.17, Stats., and correction in (12) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.007
NR 350.007 Prospectus and compensation site plan requirements. NR 350.007(1)(1)
Prospectus. For mitigation bank projects as described in ss.
NR 350.008 to
350.009, a mitigation sponsor shall prepare and submit a prospectus.
NR 350.007(2)
(2)
Prospectus purpose. The purpose of the prospectus is to provide a mitigation project concept regarding potential restoration, creation, enhancement, or preservation activities.
NR 350.007(3)
(3)
Prospectus requirements. A complete mitigation site prospectus shall include all of the following information:
NR 350.007(3)(a)
(a)
Owner and agent. The names of the mitigation sponsor, all involved landowners, any consultants or experts to be involved in the planning, design, and implementation of the mitigation site, and the mitigation sponsor's agent or agents, if applicable.
NR 350.007(3)(b)
(b)
Qualifications. The qualifications of the mitigation sponsor and members of the project team to successfully complete the types of mitigation projects proposed, including information describing any past activities completed by the sponsor and the project team.
NR 350.007(3)(c)
(c)
Objectives. A description of the specific objectives that will be accomplished by the proposed mitigation project.
NR 350.007(3)(d)
(d)
Operation. A description of how the mitigation site will be established and operated.
NR 350.007(3)(f)
(f)
Need. A
description of the general need for the proposed mitigation project.
NR 350.007(3)(g)
(g)
Technical feasibility. A narrative that provides a description of the existing land uses; a concept of the restoration actions that could occur on site; the functional lift that would occur as a result of the project; and the likelihood that the site will develop into a successful wetland mitigation bank or in-lieu fee program project.
NR 350.007(3)(h)
(h)
Ownership and long-term management. A description of the proposed ownership arrangements and long-term management strategies for the mitigation site.
NR 350.007(3)(i)
(i)
Ecological suitability. A description of the suitability of the mitigation site to achieve the proposed objectives, including the physical, chemical, and biological characteristics of the site and how they will support the planned types of wetland resources and functions; and a description of any known or anticipated actions that are currently occurring, or that have a high likelihood of occurring in the future, that could negatively impact the success of the project, such as mineral or vegetation removal, or the alteration of surface or groundwater regimes.
NR 350.007(3)(j)
(j)
Hydrology. Assurance of sufficient water supply and drainage rights to sustain the proposed water regimes on the site in both the short- and long-term; documentation of any existing or anticipated right of the landowner or others to remove water, soil, minerals, or plants from within or adjacent to the site boundary; documentation of any existing or anticipated right to drain water through, from, or onto the project site or impound water on the project site, such as tile outlets onto the property, ditches through the property, flooding easements, flowage easements, drainage easements, and maintenance easements.
NR 350.007(3)(k)
(k)
Site maps. Maps that show the proposed mitigation bank location, ownership, soils, topography, mapped existing wetlands, existing easements and infrastructure, floodplains and floodways, and existing hydrologic manipulations such as ditches, drain tiles, or berms.
NR 350.007(3)(L)
(L)
Supporting justification. Information that supports the appropriateness, feasibility, and practicability of the compensatory mitigation project.
NR 350.007(4)
(4)
Compensation site plan. For all mitigation bank, in-lieu fee, and permittee-responsible mitigation project proposals, the mitigation sponsor shall prepare a compensation site plan. The compensation site plan is synonymous with the mitigation plan as described in the federal mitigation rule under
33 CFR Part 332.4 (c).
NR 350.007(5)
(5)
Compensation site plan purpose. The compensation site plan shall do all of the following:
NR 350.007(5)(a)
(a) Demonstrate that the applicant has sufficient scientific expertise to carry out the proposed mitigation project work.
NR 350.007(5)(b)
(b) Outline the construction plan and techniques, project goals and objectives, performance standards, monitoring plan and long-term management plan.
NR 350.007(5)(c)
(c) Demonstrate that the applicant has sufficient financial resources to assure the project is built according to the plans and specifications and will be monitored and maintained as proposed.
NR 350.007(5)(d)
(d) Provide evidence that the site will be protected and maintained as wetland in perpetuity.
NR 350.007(6)
(6)
Compensation site plan requirements. A complete compensation site plan shall include all of the following information:
NR 350.007(6)(a)
(a)
Objectives. A description of the wetland resource type and amount that the mitigation sponsor will provide, the mitigation method, such as restoration, establishment, enhancement, or preservation, and how the provided wetland resource functions will address the needs of the watershed where the project is located.
NR 350.007(6)(b)
(b)
Site selection. A description of the factors considered during the site selection process. The description should include consideration of watershed needs, on-site alternatives if applicable to permittee-responsible mitigation projects, how the mitigation project fulfills goals from a compensation planning framework for in-lieu fee mitigation sites, and the practicability of accomplishing ecologically self-sustaining wetland resource restoration, establishment, enhancement, or preservation at the site.
