The statement of scope for this rule, SS 043-19 was approved by the Governor on April 29, 2019, published in Register No. 761A1 on November 6, 2019, and approved by the Natural Resources Board on August 14, 2019. This rule was approved by the Governor on August 13, 2021. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal and recreate NR 350 relating to requirements for wetland mitigation. |
WT-02-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 23.41(2), 227.22, 281.36(1), 281.36(3g), 281.36(3r), 281.36(3t), 281.36(3w), 281.36(8m), 281.36(12), 292.31(3), and 700.40. 3. Explanation of Agency Authority: The proposed rules replace and update current rules that regulate wetland mitigation requirements. The current purpose of the code is to establish standards for the development, monitoring and long-term maintenance of wetland compensatory mitigation projects that are approved by the department, and to establish procedures and standards for the establishment and maintenance of mitigation banks.
Wis. Stat. s. 281.36(3t) directs the department to develop rules for the mitigation program which are to include requirements for the analysis of practicable alternatives as part of the wetland permitting process, the purchase of credits from mitigation banks, enforcement requirements, baseline study requirements, plan and design requirements for mitigation projects, standards for comparing mitigation projects to proposed discharges, standards for measuring the success and requirements for monitoring of mitigation projects and banks, and remedial actions for unsuccessful mitigation projects. The original code was drafted in 2002, and many legislative and programmatic changes require that the code be updated. Additions to the rule will include provisions governing the department’s in-lieu fee mitigation program and the purchase of in-lieu fee credits (Wis. Stat. s. 281.36(3r)(e), 2011 Wis. Act 118; Wis. Stat. s. 281.37, 2017 Wis. Act 183) and required mitigation for non-federal wetland exemptions (Wis. Stat. s. 281.36(4n); 2017 Wis. Act 183). The discharge of fill material to federal wetlands is also regulated by the U.S. Army Corps of Engineers (USACE) under federal law. Wisconsin’s wetland law is designed to achieve a level of consistency with the federal requirements in order to achieve permitting efficiency for the regulated community. Revisions to the rule will address consistency with federal mitigation requirements, as outlined in 32 CFR Part 332 and in the 2013 Guidelines for Wetland Compensatory Mitigation in Wisconsin. Wetland mitigation is regulated at the federal level by 33 CFR Part 332, which establishes the Interagency Review Team as a group of federal, tribal, state, and/or local regulatory agency representatives that reviews documentation for, and advises the relevant USACE District Engineer on, the establishment and management of a mitigation bank or an in-lieu fee program. The USACE seeks to include all public agencies with a substantive interest in the establishment of mitigation sites on the IRT but retains final authority over its composition. The Wisconsin Department of Natural Resources (DNR) serves as an IRT member for review and approval of wetland mitigation banks in Wisconsin. The USACE St. Paul District serves as the Chair of the Wisconsin IRT. As an IRT member, the DNR facilitates the establishment of mitigation banks by reviewing the prospectus, compensation site plan, instrument, and other appropriate documents, and providing comments to the USACE St. Paul District. The DNR may also choose to sign the final instrument, indicating its agreement with the terms of the instrument. The DNR also reviews monitoring reports, recommends remedial or adaptive management measures, reviews credit release requests, and reviews modifications to an instrument and provides comments on any of these aspects to the USACE St. Paul District.
As established in 33 CFR Part 332, the IRT and the USACE intend to operate on the following timelines for review of mitigation proposals. For a mitigation bank prospectus submittal, the USACE notifies the sponsor within 30 days whether or not the submittal is complete, provides a comment period for public notice of 30 days within 30 days of the completeness determination, and provides an initial evaluation letter to the bank sponsor within 30 days of the end of the public comment period. The DNR reviews the prospectus during the public comment period and sends any comments to the USACE by the end of the 30 days. For a draft mitigation bank instrument submittal, the USACE notifies the sponsor within 30 days whether or not the submittal is complete, provides a 30-day comment period for IRT members once the submittal is determined to be complete, and within 90 total days notifies the sponsor of the status of the IRT review, indicating if the draft instrument is generally acceptable and what changes, if any, are needed before submitting a final instrument. During the IRT comment period, the DNR reviews the draft instrument and submits any comments to the USACE by the end of the 30 days. For a final mitigation bank instrument submittal, the USACE notifies the sponsor within 30 days whether they intend to approve the instrument. If no IRT member intends to object to the approval, the USACE will approve the final instrument within 45 total days of receipt. See 33 CFR Part 332.8 (e) for the IRT dispute resolution process for final mitigation bank instruments. For credit release requests, the USACE provides 15 days for IRT review, and may require a site visit to be scheduled as soon as is practicable, which would then be followed by a 15-day review period for IRT comments. The USACE then makes a decision on the credit release within 30 days. For standard instrument modifications, which require a prospectus submittal, a draft instrument modification submittal, and a final instrument modification submittal, the department sends any comments to the USACE following the previously described timelines for each of these phases. For streamlined instrument modifications, the USACE provides a 30-day comment period for IRT members, and, within 60 days, notifies the IRT of their intent to approve or disapprove of the modification. The USACE then has 15 days to notify the sponsor of the decision. During the IRT comment period, the DNR reviews the streamlined instrument modification and sends any comments to the USACE by the end of the 30 days. Should the USACE be delayed beyond the stated timeline in sending out a status update or intent to approve letter in one the of review phases, the DNR’s comments may be subsequently delayed. The USACE St. Paul District gives full consideration to any timely comments and advice from the DNR on mitigation, but the St. Paul District alone retains final authority for approval of a mitigation bank instrument, a credit release request, and any instrument modifications when a mitigation bank is used to satisfy compensatory mitigation requirements for federal wetland permits.
4. Related Statutes or Rules: Sections 281.36 (3m) and 281.36(3n), Wis. Stats., describe the Wetland Individual Permit approval process. Sections 281.36(4m) and 281.36(4n), Wis. Stats., describe certain wetlands that are exempt from the permitting process, which require a wetland mitigation component. This chapter applies to all wetland compensatory mitigation projects that are considered by the department as part of a review process conducted in accordance with chs. NR 103, 131, and 132, Wis. Admin. Code. This chapter does not apply to wetland compensatory mitigation conducted by the department of transportation as part of the liaison process pursuant to s. 30.2022, Wis. Stats. This chapter does not apply to compensatory mitigation conducted as a requirement of a federal permit issued prior to February 1, 2002. This chapter does not apply to compensatory mitigation for ferrous mining or bulk sampling activities in accordance with s. 295.60 (8), Wis. Stats. 5. Plain Language Analysis: 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, establishment, 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.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The Army Corps of Engineers regulates compensatory mitigation for federal wetland discharge permits under 33 CFR Part 332. The federal mitigation requirement is similar to the state mitigation requirements in that they have similar standards for the amount, type, and location of required mitigation, standards for planning and documentation for mitigation projects, ecological performance standards, monitoring and management standards, and requirements for mitigation banks and in-lieu fee programs. The department and the U.S. Army Corps of Engineers jointly issued Guidelines for Wetland Compensatory Mitigation in Wisconsin in 2002, with an updated version in 2013, which captures the process for complying with both state and federal law. The Guidelines reflect that while there are language differences between state and federal regulations, there are not significant conflicts between the two. The revised rule will follow the process for consistency identified in these guidelines. 7. Comparison with Similar Rules in Adjacent States: States analyzed included Illinois, Iowa, Michigan, and Minnesota.
In Illinois, wetland mitigation is primarily implemented by the Army Corps of Engineers under 33 CFR Part 332, and is therefore similar to Wisconsin’s state mitigation requirements. In Iowa, wetland mitigation is primarily implemented by the Army Corps of Engineers under 33 CFR Part 332, and is therefore similar to Wisconsin’s state mitigation requirements. In Michigan, wetland mitigation is jointly implemented by Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the Army Corps of Engineers. EGLE implements their wetland mitigation requirements under Administrative Rule 281. Administrative Rule 281 does not allow wetland enhancement as a mitigation option, requires “onsite” mitigation where practical, requires higher mitigation ratios, sets minimum size thresholds for mitigation banks, and utilizes a different mitigation bank credit release schedule, but otherwise is similar to Wisconsin’s mitigation regulations.
In Minnesota, wetland mitigation is jointly implemented by the Army Corps of Engineers under 33 CFR Part 332, and by administrative rule 8420. Under administrative rule 8420 wetland mitigation requirements are determined through a combination of the watershed approach and a comparison of current versus historic wetland acreages. Administrative rule 8420 also has specific wetland mitigation requirements for wetlands that are being converted to cultivated land, and requires the regulatory agencies overseeing wetland mitigation banks to charge administrative fees to wetland mitigation banks, but otherwise is similar to Wisconsin’s mitigation regulations. 8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: This rule is largely procedural in nature. The department worked with U.S. Army Corps of Engineers, Waterways Program staff and attorneys, and an external Technical Advisory Committee to determine the protocols contained in the rule. In addition, the department considered statutory changes and consulted current state and federal guidance to ensure consistency with current laws and practices.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: Because this rule simply updates current rules already expressly allowed by state statutes and recognized in existing code, and because this rule is designed to achieve a level of consistency with current federal requirements that are currently being practiced, the creation of this rule is not expected to increase costs to small businesses.
10. Effect on Small Business (initial regulatory flexibility analysis): The revised rule is not likely to have a significant economic impact, including for small businesses as the statutory mitigation requirements and methods remain unchanged. The rule may achieve some measure of positive economic impact, as it is expected to provide efficiency for the regulated community, mitigation bankers, and mitigation project developers.
