NR 350.009(1)(a)(a) An approved mitigation bank instrument is the record of department and interagency review team concurrence on the objectives and administration of a mitigation bank. The secretary or the secretary's designee shall sign for the department and this signature on the mitigation bank instrument constitutes department approval of the bank.
NR 350.009(1)(b)
(b) A mitigation bank sponsor is responsible for establishing a mitigation bank site in accordance with an approved mitigation bank instrument, administration of the accounting of debits and credits, conducting required corrective actions, providing required monitoring and status reports to the department, and assuring long-term maintenance and protection of the site. A mitigation bank sponsor may request that the department include more than one compensation site in a mitigation bank instrument.
NR 350.009(1)(c)
(c) Participation in the establishment of a mitigation bank does not constitute ultimate authorization for specific activities, as excepting the activities from any applicable requirements, or as pre-authorizing the use of credits from that bank for any activity.
NR 350.009(1)(d)
(d) By January 30 of each year that a mitigation bank is in operation, the mitigation bank sponsor shall provide a report to the department that provides an accounting of credits and debits using the format described in the mitigation bank instrument under sub.
(3) (i).
NR 350.009(2)(a)
(a) The mitigation bank sponsor shall inform the department of the progress of construction and shall provide full access to the department for site inspections.
NR 350.009(2)(b)
(b) The mitigation bank sponsor shall receive written approval from the department before implementing any substantial deviations from the approved compensation site plan.
NR 350.009(2)(c)
(c) The mitigation bank sponsor shall provide an as-built report to the department to verify that the project was completed in accordance with the approved plans and specifications. This report shall summarize the construction activities, note any changes to the construction plan that occurred, and provide as-built plan sheets of the site. The as-built report shall be organized according to the following outline:
NR 350.009(2)(c)1.
1. Site identification. Include the bank name or permit number, designer or consultant, and sponsor. Include a written description of the location, such as landmarks, perimeter information, and coordinates.
NR 350.009(2)(c)3.
3. Dates of construction, seeding and planting, completion, and site inspections by a qualified wetland consultant.
NR 350.009(2)(c)5.
5. Description of any problems encountered during construction and actions taken to correct the problems.
NR 350.009(2)(c)6.
6. List of follow-up corrective actions needed, schedule for corrective actions, and persons responsible for corrective actions.
NR 350.009(2)(c)9.
9. Description of the existing conditions of all wetlands at the completion of construction activities.
NR 350.009(2)(c)10.
10. A credit release request, as specified in the project's compensation site plan.
NR 350.009(2)(d)
(d) A final construction inspection may be conducted by the department after receipt of the as-built report under par.
(c) to determine whether the site was built in accordance with plans and specifications.
NR 350.009(2)(e)
(e) If the department determines that corrective actions are needed to bring the site into compliance with the compensation site plan, the department shall provide the mitigation bank sponsor a list of corrective actions to be completed by a specific date.
NR 350.009(2)(f)
(f) The applicant or bank sponsor shall certify to the department evidence that all corrective actions identified under par.
(e) have been addressed.
NR 350.009(2)(g)
(g) The department shall issue a letter of compliance through email or mail after the department determines that construction and all corrective actions are complete.
NR 350.009(2)(h)
(h) After the department issues a letter of compliance, the mitigation bank sponsor shall request the department to reevaluate the amount of required financial assurance.
NR 350.009(3)(a)
(a) The purpose of post construction monitoring is to do all of the following:
NR 350.009(3)(b)
(b) The department will evaluate the site against the established performance standards described in the project's approved compensation site plan in s.
NR 350.007 (6) (i).
NR 350.009(3)(c)
(c) A monitoring plan shall take into consideration unique aspects of the site.
NR 350.009(3)(d)
(d) A monitoring plan shall include a monitoring schedule of adequate frequency and duration to measure specific performance standards and to assure long-term success of the stated goals for the site.
NR 350.009(3)(e)
(e) A monitoring plan shall be sufficient to assess trends in wetland function at the site and the degree to which the performance standards for the site are met.
NR 350.009(3)(f)
(f) A mitigation bank sponsor shall provide a monitoring report to the department as agreed upon in the approved compensation site plan.
NR 350.009(3)(g)
(g) A minimum of 5 monitoring reports shall be required during the monitoring period and a mitigation bank sponsor may submit additional monitoring reports if performance standards are not met in the number of monitoring years as approved in the final mitigation bank instrument.
NR 350.009(3)(h)
(h) Monitoring shall occur for the length of time specified in the approved compensation site plan under s.
NR 350.007 (6) (k). The monitoring period for restoration, enhancement, or creation activities will be required for no fewer than 5 years for all wetland communities. Shrub and wooded wetland communities, and wetland types that are more difficult to restore, such as bog or fen wetlands, may require more than 5 years of monitoring to meet performance standards, become successfully established on a site, or both. The length of the required monitoring period for each vegetation community will be based on the performance standards developed in the approved compensation site plan. The department may extend the length of the monitoring period if the site does not meet performance standards in the monitoring time frame listed in the approved compensation site plan.
NR 350.009(3)(i)
(i) Monitoring report requirements shall include all of the following:
NR 350.009(3)(i)1.
1. A restatement of the compensation site plan goals, objectives, and performance standards.
NR 350.009(3)(i)2.
2. Identification of any structural failures or external disturbances on the site.
NR 350.009(3)(i)3.
3. A description of management activities and corrective actions implemented on the site during the past year.
NR 350.009(3)(i)4.
4. A summary of and full presentation of the data collected during the past year.
NR 350.009(3)(i)5.
5. A site map showing the locations of data collection by each vegetation community survey method and the locations of monitoring wells.
NR 350.009(3)(i)6.
6. An assessment of the degree to which performance standards are being met.
NR 350.009(3)(i)7.
7. Proposed corrective actions to improve attainment of performance standards.
NR 350.009(3)(i)8.
8. A narrative summary of the results and conclusions of the monitoring.
NR 350.009(3)(i)9.
9. Any proposed credit releases, as outlined in the site's approved compensation site plan.
NR 350.009(3)(j)
(j) If after review of the monitoring report, the department identifies conditions that indicate a site is unlikely to meet performance standards, the department may require corrective actions to the sponsor that may allow the mitigation site to meet the performance standards as agreed upon in the mitigation bank instrument.
NR 350.009(3)(k)
(k) At the end of the monitoring period, the department shall provide a final letter of compliance by email or mail if the department determines that the site is successful and established.
NR 350.009(3)(L)
(L) After the department issues a final letter of compliance, the department shall release financial assurances as appropriate.
NR 350.009(4)(a)
(a) As part of an as-built report under sub.
(2) (c) and as part of a monitoring report under sub.
(3) (h) a mitigation bank sponsor may submit a credit release to the department when performance standards have been achieved according to the mitigation bank instrument.
NR 350.009(4)(b)
(b) A credit release request shall include all of the following:
NR 350.009(4)(b)2.
2. An explanation of any previous credit releases that have been granted to the mitigation bank, including the amount of credits released and when those credits were released.
NR 350.009(4)(c)
(c) Within 45 days of receiving or within 30 days after a necessary site visit has been completed, the department shall provide a recommendation by email or mail to the U.S. army corps of engineers on whether or not to release credits. The department may recommend releasing partial credit if the performance standards in question have only been achieved in part.
NR 350.009 Note
Note: Should the U.S. army corps of engineers' review of credit release requests extend beyond the stated timeline, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
NR 350.009(5)
(5)
Adaptive management and instrument modification. NR 350.009(5)(a)(a) The mitigation bank sponsor may request to use the adaptive management plan described in s.
NR 350.007 (6) in the event that the site or an area of the site is developing differently than designed and may adversely affect the success of the mitigation bank.
NR 350.009(5)(b)
(b) Prior to completing adaptive management strategies that would result in wetland functions that are not comparable to those described in the mitigation bank's approved compensation site plan, such as but not limited to filling, grading, exaction, or hydrologic manipulations, the mitigation bank sponsor shall provide all of the following information to the department:
NR 350.009(5)(b)2.
2. The adaptive strategy that will be used to rectify the issue, including when and how the adaptive management strategy will be implemented.
NR 350.009(5)(c)
(c) If the adaptive management strategy involves activities such as but not limited to excavation or hydrologic manipulations, or will result in wetland functions that are not comparable to those described in the mitigation bank's approved compensation site plan, the department may require a mitigation bank instrument modification. If required, a mitigation bank instrument modification shall include all of the following:
NR 350.009(5)(c)1.
1. Revised performance standards based on the anticipated adaptive management outcome.
NR 350.009(5)(c)2.
2. Revised credit allocations based on the anticipated adaptive management outcome.
NR 350.009(5)(c)3.
3. A revised credit release schedule based on the anticipated adaptive management outcome.
NR 350.009(5)(c)4.
4. A revised long-term management plan based on the anticipated adaptive management outcome.
NR 350.009(5)(d)
(d) The department's completion of a modified bank instrument review shall be dependent upon whether the modification qualifies as a standard or streamlined review.
NR 350.009(5)(e)
(e) The department may use a streamlined review for the following instrument modifications:
NR 350.009(5)(e)1.
1. A request for a greater or lesser amount of credits for a mitigation project.
NR 350.009(5)(e)3.
3. Any other request for a change that the department deems appropriate.
NR 350.009(5)(f)
(f) The department shall complete a streamlined instrument modification review within 60 days of receipt of such a request. The department shall either recommend to approve the streamlined modification request, recommend to deny the streamlined modification request, or provide information to the mitigation bank sponsor explaining the information needed to make the streamlined modification request approvable.
NR 350.009(5)(g)
(g) The department shall use a standard modification review process for all requests that do not meet the standards listed in par.
(e).
NR 350.009 Note
Note: As an interagency review team member, the department will review standard and streamlined instrument modification submittals according to the timelines stated above and will issue its recommendations to the U.S. army corps of engineers. Should the U.S. army corps of engineers' review of these requests extend beyond the stated timelines, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
NR 350.009(6)(a)(a) The party responsible for the site's long-term management shall follow the long-term management plan per the approved compensation site plan described in s.
NR 350.007 (6) to ensure the mitigation bank's long-term sustainability.
NR 350.009(6)(b)
(b) The party responsible for the site's long-term management shall fund the long-term management plan per the approved compensation site plan described in s.
NR 350.007 (6) to ensure the mitigation bank's long-term sustainability.
NR 350.009 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) (d), (3) (h), (5) (g) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.010
NR 350.010 Department in-lieu fee program operation. NR 350.010(1)(1)
General. The department shall sponsor an in-lieu fee mitigation program to provide mitigation options to permittees required to mitigate for adverse impacts associated with a wetland individual permit under s.
281.36 (3n) (d), Stats., or for exempt project proponents required to mitigate for adverse impacts associated with a wetland exemption under s.
281.36 (4n) (b) or
(c), Stats. The department in-lieu fee program established under s.
281.36 (3r) (e), Stats., shall have a program instrument approved by the U.S. army corps of engineers and shall be consistent with federal regulations.
NR 350.010(2)
(2)
Instrument. The department shall create an in-lieu fee program instrument, which shall include a description of proposed service areas, accounting procedures, default and closure provisions, reporting protocols, specification of the initial allocation of advanced credits, a credit fee methodology, a description of the program account, and a compensation planning framework that details mitigation priorities.
NR 350.010(3)
(3)
Service areas. The department in-lieu fee program may sell advanced credits and complete mitigation projects to fulfill sold advanced credits in all service areas in Wisconsin as approved by the U.S. army corps of engineers.
NR 350.010(4)
(4)
Credit fee schedule. The department in-lieu fee program will periodically review and revise the credit fee in each service area taking into account the cost factors associated with a full wetland mitigation project, including administration, appraisals, surveys, title insurance, land acquisition, conservation easements, design and planning, permit fees, engineering and modeling, construction, maintenance, monitoring, long-term management, remediation or adaptive management activities, and other factors as deemed necessary to project success by the U.S. army corps of engineers. The department will evaluate credit fees after the end of each state fiscal year on June 30. If the department determines that it is necessary to revise credit fees based on a full cost accounting of a wetland mitigation project, the department shall set the new prices on January 1 of the following calendar year and will post the changes on the in-lieu fee program website. The department shall provide an annual report to the U.S. army corps of engineers for each fiscal year that includes justification for changes made to credit fees.
NR 350.010(5)(a)(a) The department shall use a request for proposals application process and the department shall use internal site identification methods to identify suitable mitigation projects.
NR 350.010(5)(b)
(b) The department request for proposals process may be developed for consultants to provide partial delivery, which could include one or more of design and planning, construction, maintenance, or monitoring project aspects, or full delivery, which includes all aspects of a wetland mitigation project. The department shall advertise funds available for mitigation projects in each service area on the department website for at least one round of proposals prior to contracting with a partner to pursue a prospectus.
NR 350.010(5)(c)
(c) The department shall create a project application and publish the application form on the in-lieu fee program website. The department will accept mitigation project proposals from any person. The department will answer questions from potential applicants regarding the application form or the request for proposals process. The department will publish staff contact information on the in-lieu fee program website.
