(2) The department may, in consultation with the U.S. army corps of engineers, require mitigation to be completed using any of the methods in (a) to (e) that are available if the department determines it 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.
(3) 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:
(a) The name of the mitigation bank.
(b) The HUC 8 name and the service area name where the impacts will occur.
(c) The wetland type impacted.
(d) The number of credits purchased.
(e) The signatures of both the permittee or exempt project proponent and the mitigation bank sponsor.
(4) The department shall not issue a wetland individual permit, or exemption unless one or more of the following applies:
(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.
(b) The department and permittee have agreed to a restoration plan for temporary or secondary impacts.
(c) The department has issued a wetland individual permit approval which specifies that the permittee must complete mitigation requirements prior to a discharge.
NR 350.005 Amount of Compensatory Mitigation Required. (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. (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:
(a) The department may use an appropriate wetland functional or condition assessment method such as a wetland quantification tool, or other suitable metrics designed to measure wetland impacts.
(b) The department may use a crediting system based on wetland type and location 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:
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 impact for mitigation bank credits purchased in the same service area and of the same wetland type.
a. The department may require the permittee or exempt project proponent to purchase mitigation bank credits at higher than the 1.2:1 ratio under the following circumstances:
b. The ratio may increase for the purchase of mitigation bank credits out of kind from the impacted wetland type.
c. The ratio may increase for the purchase of mitigation bank credits in a different service area from where the wetland impacts are to occur.
d. The department may determine that an increased ratio is necessary to fully compensate for impacts to wetland function.
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 impact to compensate for the adverse impacts to wetlands and to account for the temporal loss of wetland acres and function.
3. If the department determines that the permittee or exempt project proponent shall complete a permittee-responsible mitigation project, the starting mitigation ratio shall be no less than 1.2 credits per one acre of direct impact. 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.
(3) The department may determine that mitigation is required for secondary impacts to wetlands associated with wetland individual permits or exemptions.
Note: The department may require mitigation for secondary impacts to wetlands such as conversion of wetland type or hydrologic impacts.
(4) The department may determine that mitigation is required for temporary impacts to wetlands associated with wetland individual permits or exemptions.
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 350.006 Site Crediting. (1) For mitigation bank projects under ss. NR 350.08 to NR 350.10, in-lieu fee program projects under s. NR 350.11, and permittee-responsible mitigation projects under s. NR 350.12, 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: (a) A wetland functional or condition assessment method such as a wetland quantification tool, or other suitable metrics designed to measure wetland impacts.
(b) A crediting system tied to wetland type and acres.
(2) The location of 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. (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 350.07 (6). (4) Reestablishment of historic 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.
(5) Rehabilitation of hydrology and plant communities on an existing wetland site will generally receive less credit than reestablishment but may receive up to one credit for every one acre restored.
(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.
(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.
(8) The department will allow preservation at no higher than 0.125 credits per acre if the proposed mitigation project meets all of the following criteria:
(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 currently planned or are likely to be planned on or adjacent to the proposed mitigation site.
(b) The mitigation project will preserve wetland resources that provide important physical, chemical, or biological functions for the watershed.
(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.
(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.
(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:
(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.
(b) The shallow or deep marsh areas of the site are ecologically suitable to the landscape as evidenced by historic or current site conditions and are proposed to be constructed according to the best available scientific understanding of natural, self-sustaining conditions.
(c) If engineered structures that require active management, such as berms, dikes, or water control structures, are proposed to be constructed on the site, the structures must only be necessary to restore the site to the extent practicable considering watershed features and not with the goal of restoring or creating more shallow or deep marsh than may have been historically present considering changes to the watershed.
(d) If engineered structures that require active management are proposed to be constructed on the site, the mitigation sponsor shall provide maintenance and monitoring plans, identify the person 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.
