Chapter NR 350

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)(e) (e) Service area. A description of the proposed service area.

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.

NR 350.007(6)(c) (c) Service area. A description of the proposed service area.

NR 350.007(6)(d) (d) Site protection instrument. A description of the legal arrangements and instrument, including site ownership, that the mitigation sponsor will use to ensure the long-term protection of the site.

NR 350.007(6)(e) (e) Baseline information. A description of the ecological characteristics of the proposed site including historic and existing plant communities; historic and existing hydrology sources and processes, including inputs, outputs and alterations; soil conditions; a map showing the locations of mitigation site and the geographic coordinates for the site; and other site characteristics appropriate to wetland mitigation. The baseline information should also include a delineation of waters of the United States, including wetlands, on the proposed site.

NR 350.007(6)(f) (f) Determination of credits. A description of the number of proposed credits the mitigation project will generate, including a brief explanation of the rationale for this determination.

NR 350.007(6)(g) (g) Mitigation work plan. Detailed written specifications and work descriptions for the mitigation project, including all of the following:

NR 350.007(6)(g)1. 1. The geographic boundaries of the project.

NR 350.007(6)(g)2. 2. Construction methods, timing, and sequence.

NR 350.007(6)(g)3. 3. Sources of water, including connections to existing wetlands and uplands.

NR 350.007(6)(g)4. 4. Methods for establishing the desired plant communities.

NR 350.007(6)(g)5. 5. Plans to control invasive plant species.

NR 350.007(6)(g)6. 6. The proposed grading plan including elevations and slopes of the substrate.

NR 350.007(6)(g)7. 7. Soil management.

NR 350.007(6)(g)8. 8. Erosion control measures.

NR 350.007(6)(h) (h) Maintenance plan. A description and schedule of maintenance requirements after construction is completed to ensure the continued viability of the mitigation site.

NR 350.007(6)(i) (i) Performance standards. Objective, measurable, and enforceable performance standards based on restored, enhanced, or created wetland function that shall include all of the following:

NR 350.007(6)(i)1. 1. The acres of wetland by wetland type and mitigation activity type at a mitigation site. The mitigation sponsor shall complete this requirement using a wetland delineation per s. 281.36 (2m), Stats., and appropriate vegetative community mapping practices.

NR 350.007(6)(i)2. 2. A set of hydrology performance standards for the site for each wetland community type, including groundwater levels, periods of inundation or saturation, or other metrics that show hydrology goals for the site have been achieved.

NR 350.007(6)(i)3. 3. A set of vegetation performance standards for the site for each wetland community type, including native and invasive species cover, hydrophytic vegetation cover, unvegetated areas, or other metrics that show vegetation goals for the site have been achieved.

NR 350.007(6)(i)4. 4. Any other objective, measurable attributes that document increased wetland function, as required by the department.

NR 350.007(6)(j) (j) Credit release schedule. A proposed schedule for credit releases listing the percentage of total credits that will be released for meeting specific project milestones, including final mitigation bank instrument approval or the in-lieu fee project final compensation site plan, the as-built report, and interim and final performance standards achievement.

NR 350.007(6)(k) (k) Monitoring plan. A description of parameters to be monitored in order to determine if the project is on track to meet performance standards and if adaptive management under par. (m) is needed. A schedule for monitoring and reporting on monitoring results.

NR 350.007(6)(L) (L) Long-term management plan. A description of how the mitigation sponsor will manage the site after performance standards have been achieved to ensure the long-term sustainability of the resource, including long-term financing mechanisms and the party responsible for long-term management. The management plan shall be clear as to what conditions will trigger needs for certain maintenance or management activities.

NR 350.007(6)(m) (m) Adaptive management plan. A management strategy to address unforeseen changes in site conditions or other components of the compensatory mitigation project, including the party or parties responsible for implementing adaptive management measures. The adaptive management plan shall guide decisions for revising compensatory mitigation plans and implementing measures to address both foreseeable and unforeseen circumstances that adversely affect compensatory mitigation success.

NR 350.007(6)(n) (n) Financial assurances. A description of the financial assurances that the mitigation sponsor will provide under s. NR 350.008 (3) and how they ensure a high level of confidence that the mitigation sponsor will successfully complete the project, in accordance with its performance standards.

NR 350.007(6)(o) (o) Supporting justification. Information that supports the appropriateness, feasibility, and practicability of the compensatory mitigation project.

NR 350.007 History History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1), (3) (i) made under s. 35.17, Stats., Register February 2022 No. 794.

NR 350.008 NR 350.008 Process for establishing a mitigation bank.

NR 350.008(1) (1) Process.

NR 350.008(1)(a) (a) A mitigation bank sponsor shall prepare and submit a mitigation bank prospectus to the department under s. NR 350.007 (1) to (3).

NR 350.008(1)(b) (b) Within 90 days of receipt of a bank prospectus, the department shall provide through email or mail the department’s written opinion of the likelihood that the proposed compensation site will comply with the requirements of this chapter. The department may request a site visit prior to providing its written opinion.

NR 350.008(1)(c) (c) Based on comments received from the department a prospective mitigation bank sponsor shall prepare and submit a draft mitigation bank instrument to the department. A complete draft mitigation bank instrument shall include all of the following:

NR 350.008(1)(c)1. 1. A complete compensation site plan under s. NR 350.007 (6).

NR 350.008(1)(c)2. 2. Information on the operation of the bank including the expected number of credits, provisions for the sale of credits, accounting and reporting procedures, and provisions for site inspections pursuant to s. NR 350.009.

NR 350.008(1)(c)3. 3. A discussion of the persons responsible for management of the bank accounting, long-term ownership, monitoring, maintenance, and long-term management of the site.

NR 350.008(1)(c)4. 4. Proposed financial assurances for the site pursuant to sub. (3).

NR 350.008(1)(c)5. 5. A proposed conversation easement for the site pursuant to sub. (4).

NR 350.008(1)(c)6. 6. A proposed schedule that includes a timeline for submittal of a final mitigation bank instrument, construction, and monitoring under s. NR 350.007 (6).

NR 350.008(1)(d) (d) Within 90 days of receipt of a complete draft mitigation bank instrument, the department shall provide through email or mail a status update letter that may include any of the following:

NR 350.008(1)(d)1. 1. The department may recommend that the sponsor prepare and submit a final mitigation bank instrument.

NR 350.008(1)(d)2. 2. The department may require supplemental information regarding specific components of the draft mitigation banking instrument prior to the preparation and submittal of the final mitigation banking instrument.

NR 350.008(1)(d)3. 3. The department may require a revised draft mitigation banking instrument submittal if the original proposal is determined to have a high likelihood of failure or key components were missing from the submittal.

NR 350.008(1)(e) (e) If the sponsor completes a submittal under par. (d) 1. or 2., the department shall provide through email or mail a written description of any missing items that must be included and concerns that need to be addressed to make the final mitigation bank instrument approvable.

NR 350.008(1)(f) (f) Based on comments received from the department a prospective mitigation bank sponsor shall prepare a final mitigation bank instrument. The final mitigation bank instrument shall include all of the following:

NR 350.008(1)(f)1. 1. Any changes requested by the department, as described in par. (d).

NR 350.008(1)(f)2. 2. Final versions of the construction and post construction financial assurances that are put in place under sub. (3).

NR 350.008(1)(f)3. 3. A final version of the conservation easement or comparable legal instrument for the site under sub. (4).

NR 350.008(1)(g) (g) After a mitigation bank sponsor submits a final mitigation bank instrument to the department, the department shall do all of the following:

NR 350.008(1)(g)1. 1. Within 30 days, notify the mitigation bank sponsor whether the department intends to approve the final mitigation bank instrument.

NR 350.008(1)(g)2. 2. Once the U.S. army corps of engineers determines that the instrument will be approved, the department shall be a signatory to the final mitigation bank instrument.

NR 350.008(1)(g)3. 3. Include the bank on a mitigation banking web page listing banks that are open and approved to sell credits. If bank sponsors choose to include contact information and a project narrative the department shall provide this information on the mitigation banking web page.

NR 350.008 Note Note: As an interagency review team member, the department will review mitigation bank prospectus submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; will review draft mitigation bank instrument submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; and the department will review final mitigation bank instrument submittals and notify its intent to approve or object within 30 days of receipt. Should the U.S. army corps of engineers’ review of any of these documents extend beyond the stated timeline, the department’s comments may be subsequently delayed in reaching a mitigation bank sponsor.

NR 350.008(2) (2) Credit release schedule.

NR 350.008(2)(a) (a) The department shall require a credit release schedule as part of a mitigation bank instrument under s. NR 350.007 (6) and review a credit release schedule proposal as part of its review of the draft and final mitigation bank instrument proposals under sub. (1).

NR 350.008(2)(b) (b) The credit release schedule for a mitigation bank may include scheduled releases at project milestones, including but not limited to mitigation bank instrument approval and signing; the letter of compliance from the department stating that construction, as documented in the as-built report under s. NR 350.009 (2) (c), and all corrective actions, if applicable, are complete; and approval of a monitoring report that documents fulfillment of performance standards.

NR 350.008(2)(c) (c) The department shall review a proposed credit release schedule in accordance with s. 281.36 (3w) (b), Stats., based on the following considerations:

NR 350.008(2)(c)1. 1. The level of financial assurances proposed for construction, maintenance, and monitoring of a mitigation project.

NR 350.008(2)(c)2. 2. The level of risk associated with a proposed mitigation project design, including but not limited to the amount of engineered structures, extent of excavation, and invasive plant species considerations.

NR 350.008(2)(d) (d) If a preservation activity is proposed for an area or areas of a mitigation bank project, a credit release schedule that allows for the full release of credits after the site protection mechanism is recorded and the mitigation bank instrument is approved may be proposed for preservation areas of the mitigation bank.

NR 350.008(3) (3) Financial assurance requirements.

NR 350.008(3)(a) (a) The department shall require the mitigation bank sponsor to submit a performance bond, irrevocable letter of credit, irrevocable escrow account, irrevocable trust account, or other financial assurance to ensure that a mitigation project is constructed, operated, monitored, and maintained according to ss. NR 350.007 (4) and 350.009 (2) to (3) and in accordance with the approvals issued by the department and other agencies involved in the approval process. The department may waive the requirement for financial assurances for construction on a case-by-case basis if the first credit release for a mitigation bank is scheduled to occur after the mitigation bank sponsor has submitted and the department has approved the as-built report.

NR 350.008(3)(b) (b) When multiple regulatory authorities have jurisdiction over a mitigation project, the regulatory authorities may develop and implement a cooperative financial security arrangement to avoid requiring the mitigation bank sponsor to provide financial assurances with more than one regulatory authority for the same mitigation project.