Chapter NR 350

NR 350.008(5)(d) (d) The department may consider any of the following as viable long-term funding mechanisms:

NR 350.008(5)(d)1. 1. Non-wasting endowment.

NR 350.008(5)(d)2. 2. Legally established trusts.

NR 350.008(5)(d)3. 3. Contractual agreements with future responsible parties.

NR 350.008(5)(d)4. 4. Other legally established funding mechanisms, as appropriate.

NR 350.008(5)(e) (e) A mitigation bank sponsor may propose to transfer control and responsibility of the long-term management funding source to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager.

NR 350.008(6) (6) Public notice.

NR 350.008(6)(a) (a) The department shall provide online public notification for a received prospectus.

NR 350.008(6)(b) (b) The department shall develop a public notice for each prospectus to include all of the following information:

NR 350.008(6)(b)1. 1. The name of the mitigation bank sponsor.

NR 350.008(6)(b)2. 2. A brief description of the mitigation bank including all mitigation bank sites.

NR 350.008(6)(b)3. 3. The name, email address, and phone number of a department staff member who can receive comments and respond to questions.

NR 350.008(6)(b)4. 4. A date by which the department will accept and consider comments.

NR 350.008(6)(c) (c) The department shall distribute the public notice to appropriate news media in the vicinity of the proposed action.

NR 350.008(7) (7) Review fee. The department shall charge a fee pursuant to s. 281.36 (12) (b), Stats., for reviewing, investigating, and making decisions to approve or not approve mitigation bank instruments at the time that a mitigation bank sponsor submits a draft mitigation bank instrument to the department. The submittal fee for a draft mitigation bank instrument shall be $800.

NR 350.008 History History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) (c) 4., 5., (e), (f) 1., 2., 3., (2) (a), (4) (b) made under s. 35.17, Stats., Register February 2022 No. 794.

NR 350.009 NR 350.009 Mitigation bank operation.

NR 350.009(1) (1) General.

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) (2) Construction monitoring.

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)2. 2. Identification of the construction contractor.

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)4. 4. Description of any changes to the original plan.

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)7. 7. As-built plan sheets.

NR 350.009(2)(c)8. 8. Photos showing before and after conditions of the constructed area.

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) (3) Post construction monitoring.

NR 350.009(3)(a) (a) The purpose of post construction monitoring is to do all of the following:

NR 350.009(3)(a)1. 1. Determine whether performance standards established for the site under s. NR 350.007 (6) (i) are being met.

NR 350.009(3)(a)2. 2. Identify trends in wetland functions at the site.

NR 350.009(3)(a)3. 3. Identify the need for corrective actions.

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) (4) Credit release requests and approval.

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)1. 1. Documentation that appropriate milestones and performance standards have been achieved, as described in s. NR 350.008 (2).

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)1. 1. The issue that requires an adaptive management strategy.

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)(b)3. 3. The expected outcome of the adaptive management strategy.

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)2. 2. A request for a change to a credit release schedule.

NR 350.009(5)(e)3. 3. Any other request for a change that the department deems appropriate.