2017 - 2018 LEGISLATURE
February 16, 2018 - Introduced by Representative Tusler, cosponsored by Senator
Wanggaard. Referred to Committee on Environment and Forestry.
1An Act to amend
281.36 (3r) (a) 1., 281.36 (3r) (a) 3. and 281.36 (3r) (e); and to
281.36 (1) (ae), 281.36 (1) (be), 281.36 (3t) (g) and 281.36 (3w) of the 3
statutes; relating to: requirements for siting wetland mitigation, wetland
4mitigation banks, and requiring the exercise of rule-making authority.
Analysis by the Legislative Reference Bureau
This bill makes changes to wetland mitigation requirements and requirements
for mitigation banks.
Wetland mitigation program. Under current law, DNR must issue wetland
general permits for discharges of dredged or fill material into certain wetlands and
may require a person to apply for and obtain a wetland individual permit if DNR
determines that conditions specific to the site require additional restrictions on the
discharge in order to provide reasonable assurance that no significant adverse
impacts to wetland functional values will occur. Under current law, before DNR may
issue a wetland individual permit, it must require the restoration, enhancement,
creation, or preservation of other wetlands to compensate for adverse impacts to a
wetland resulting from the discharge, also known as mitigation.
Under current law there are three methods by which wetland mitigation may
be accomplished: 1) purchasing credits from a mitigation bank located in this state;
2) participating in the in lieu fee subprogram; or 3) completing mitigation within the
same watershed or within one-half mile of the site of the discharge.
This bill changes all of these options by limiting credit purchases to only a
mitigation bank located in the same compensation search area as the wetland
impacted by the discharge, if available, and limiting any mitigation completed under
the in lieu fee subprogram or by the permittee to the same compensation search area
as the wetland impacted by the discharge. Under the bill, a compensation search
area is an area that includes the geographic management unit of a wetland impacted
by a discharge, the county of the impacted wetland, and a 20-mile radius from the
impacted wetland. Under the bill, a geographic management unit is one of the 22
statewide management units established by DNR based on the major river basins
of the state.
Mitigation banks. One method under current law by which wetland
mitigation may be accomplished is by purchasing credits from a mitigation bank
located in this state. Under current law, a mitigation bank is 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.
Under current law DNR must approve the establishment of a mitigation bank.
This bill requires DNR to establish by rule financial assurance requirements
for the construction of mitigation projects by mitigation banks. The bill also
establishes the means by which a mitigation bank that has not yet completed
construction of a mitigation project and has not been approved by DNR (developing
mitigation bank) may sell its estimated credits, or the credits that the mitigation
bank estimates it will have once the mitigation project is complete. Under the bill,
a developing mitigation bank may sell these credits if it is in compliance with DNR's
financial assurance requirements and if it follows a specific schedule for release of
the credits that is established in the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
281.36 (1) (ae) of the statutes is created to read:
(ae) “Compensation search area” means an area that includes the 3
geographic management unit of a wetland impacted by a discharge, the county of the 4
impacted wetland, and a 20-mile radius from the impacted wetland.
281.36 (1) (be) of the statutes is created to read:
(be) “Geographic management unit" means one of the 22 statewide 7
management units established by the department based on the major river basins 8
of the state.
281.36 (3r) (a) 1. of the statutes is amended to read:
(a) 1. Purchasing credits from a mitigation bank located in the same
2compensation search area as the wetland impacted by the discharge or, if not
3available, located anywhere
281.36 (3r) (a) 3. of the statutes is amended to read:
(a) 3. Completing mitigation within the same watershed or within
6one-half mile of the site of the discharge compensation search area as the wetland
7impacted by the discharge
281.36 (3r) (e) of the statutes is amended to read:
(e) As part of the mitigation program established under par. (a), the 10
department may establish an in lieu fee subprogram, under which payments are 11
made to the department or another entity for the purposes of restoring, enhancing, 12
creating, or preserving wetlands or other water resource features. The subprogram 13
must be approved by the U.S. army corps of engineers. The department shall 14
establish requirements for calculating the in lieu fee payments.
15shall require that all mitigation under the in lieu fee program be completed within
16the same compensation search area as the wetland impacted by the discharge.
the in lieu fee subprogram, the wetlands that benefit from the subprogram shall be 18
open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or 19
any combination thereof, but the department may establish reasonable restrictions 20
on the use of the land by the public in order to protect public safety or to protect a 21
unique plant or animal community. The subprogram shall be consistent with federal 22
281.36 (3t) (g) of the statutes is created to read:
(g) Financial assurance requirements for the construction of 25
mitigation projects by mitigation banks.
281.36 (3w) of the statutes is created to read:
281.36 (3w) Release of credits.
(a) In this subsection:
1. “Developing mitigation bank” means a mitigation bank that has not 4
completed its mitigation project and that has not yet been established under an 5
agreement between the bank's sponsor and the department or otherwise approved 6
by the department.
2. “Estimated credits” means the total number of credits that a developing 8
mitigation bank estimates it will have once its mitigation project is constructed.
(b) A developing mitigation bank may sell its estimated credits if the mitigation 10
bank has met the financial assurance requirements established by the department 11
under sub. (3t) (g) and if the mitigation bank releases the credits in accordance with 12
the following schedule:
1. No more than 20 percent of the estimated credits after the department 14
approves and executes the mitigation bank document establishing the specifications 15
for the mitigation bank.
2. No more than 65 percent of the estimated credits after the applicant or bank 17
sponsor is issued a letter of compliance that construction and all corrective actions 18
3. No more than 85 percent of the estimated credits after the department 20
approves a monitoring report, but not earlier than 2 years after construction of the 21
4. 100 percent of the estimated credits after the department approves the final 23
monitoring report and determines that all performance standards applicable to the 24
mitigation bank are met.