Department of Natural Resources
101 S. Webster Street, WT/3, PO Box 7921, Madison, WI 53707
Section 1 NR 350 is repealed and recreated to read:
NR 350.001 Purpose. (1) The purpose of this chapter is to establish standards for mitigation decisions related to regulated wetland impacts and to establish standards and procedures for the planning, implementation, maintenance, and monitoring of wetland compensatory mitigation in Wisconsin, including private mitigation banks, in-lieu fee programs and their projects, and permittee-responsible mitigation projects. This chapter also establishes procedures and standards for the department’s in-lieu fee subprogram.
(2) This chapter is adopted pursuant to s. 281.36, Stats. Note: Additional information can be found in Guidelines for Wetland Compensatory Mitigation in Wisconsin Version 1.
NR 350.002 Applicability. (1) This chapter applies to all the following:
(a) Permitted and exempt wetland impacts requiring mitigation under s. 281.36, Stats. (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. (2) This chapter does not apply to any of the following:
(a) Wetland compensatory mitigation conducted by the department of transportation as part of the liaison process pursuant to s. 30.2022, Stats. (b) Compensatory mitigation conducted as a requirement of a federal permit issued prior to February 1, 2002.
(c) Compensatory mitigation for ferrous mining or bulk sampling activities in accordance with s. 295.60 (8), Stats. NR 350.003 Definitions. In this chapter:
(1) “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 a mitigation bank or in-lieu fee program instrument.
Note: The terms “bank service area” and “service area” refer to the same watersheds as described in the memorandum of 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 and Lower Wisconsin, and the Southwestern Lake Superior HUC 6 is shortened to the name “Lake Superior”
(2) “Basin” means the Lake Superior, Lake Michigan, or Mississippi River basin.
(3) “Compensation” or “compensatory mitigation” means the restoration, enhancement, or creation 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.
(4) “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 HUC 6 service area, and basin as the search is conducted.
(5) “Compensation site plan" means a comprehensive document prepared by a 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 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)). (6) “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.
(7) “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.
(8) “Credit" means a unit of measure representing the attainment of wetland function at a mitigation site.
(9) “Credit ratio” means the amount of mitigation a project proponent shall provide at a mitigation project compared to the acres of wetland lost from a permitted or exempt impact.
(10) “Debit" means a unit of wetland function that is withdrawn from a mitigation bank upon approval of a credit sale.
(11) “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.
(12) “Department” means the Wisconsin Department of Natural Resources.
(13) “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.
(14) “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 selected wetland function but may also lead to a decline in other wetland function and does not result in a gain in wetland resource area.
(15) “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. (16) “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.
(17) “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).
(18) “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).
(19) “In-lieu fee program” means a mitigation subprogram established by the department under s. 281.36 (3r) (e), Stats., or sponsored by a public or nonprofit entity that sells advanced 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. (20) “Interagency review team” means the group of federal, tribal, state, and/or local regulatory agencies that review and approve wetland mitigation banks and in-lieu fee programs.
Note: As described in 33 CFR 332.8(b), the U.S. army corps of engineers is the lead agency on the interagency review team and the U.S. environmental protection agency, the U.S. fish and wildlife service, the natural resources conservation service, noaa fisheries, and other agencies may participate as appropriate to review specific mitigation sites. The U.S. army corps of engineers will seek 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. Wisconsin tribes and the state bureau of aeronautics may serve as interagency review team members when they have interest in mitigation projects. Members of the interagency review team shall review prospectuses, compensation site plans, mitigation bank and in-lieu fee program instruments, construction reports, monitoring reports, credit release requests, mitigation bank and in-lieu fee program 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 and all other approvals for a mitigation bank or in-lieu fee program that is used to satisfy compensatory mitigation for federal wetland permits. (21) “Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.
(22) “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.
(23) “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.
