NR 350.003 Note
Note: As described in
33 CFR 332.8 (b), the U.S. army corps of engineers is the interagency review team Chair and other federal, tribal, state, and/or local regulatory agencies may participate with authority from the U.S. army corps of engineers, and as appropriate to review specific mitigation sites. The U.S. army corps of engineers seeks 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. Members of the interagency review team review prospectuses, compensation site plans, mitigation bank instruments, construction as-built reports, monitoring reports, credit release requests, mitigation bank 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 approval for a mitigation bank or in-lieu fee program that is used to satisfy compensatory mitigation for federal wetland permits.
NR 350.003(22)
(22) “
Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.
NR 350.003(23)
(23) “
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.
NR 350.003(24)
(24) “
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.
NR 350.003(25)
(25) “
Mitigation project” or “mitigation site” means a wetland restoration, enhancement, creation, or preservation site that is developed with the intention of selling credits to permittees or exempt applicants in need of mitigation or a site developed by a permittee or exempt applicant to fulfill their mitigation requirements.
NR 350.003(26)
(26) “
Mitigation sponsor” or “sponsor” means any public or private individual or entity responsible for establishing and operating a mitigation bank, in-lieu fee program, or permittee-responsible mitigation project.
NR 350.003(27)
(27) “
Monitoring plan” means a narrative describing the data collection, analysis, and reporting requirements for documenting the change in wetland function on mitigation sites in a compensation site plan approved by the department.
NR 350.003(29)
(29) “
On-site” means a mitigation project located within one-half mile of the impacted wetland.
NR 350.003(30)
(30) “
Performance standards” are observable or measurable physical, including hydrological, chemical, and/or biological attributes that are used to determine if a compensatory mitigation project meets its objectives.
NR 350.003(31)
(31) “
Permittee” means an applicant for a wetland general or individual permit under s.
281.36, Stats.
NR 350.003(32)
(32) “
Permittee-responsible mitigation project” means a mitigation project developed by a permittee or exempt project proponent, or their authorized agent or contractor, to complete required mitigation and for which the permittee or exempt project proponent retains full legal responsibility.
NR 350.003(33)
(33) “
Preservation” means removing a threat to, or preventing the decline of, ecologically significant or rare or high-quality wetlands through long-term site protection that alone does not result in a gain of wetland resource area or functions.
NR 350.003(34)
(34) “
Prospectus” means a preliminary wetland mitigation project design prepared by a mitigation sponsor and including descriptions of existing site conditions, site ownership and management, mitigation goals and objectives, and ecological suitability of the project.
NR 350.003(35)
(35) “
Re-establishment” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning ecological functions to a former wetland resource that results in a gain in wetland resource area and function.
NR 350.003(36)
(36) “
Rehabilitation” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing ecological functions to a degraded existing wetland resource that results in a gain in wetland resource functions but does not result in a gain in wetland resource area.
NR 350.003(37)(a)
(a) “Restoration" means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning ecological functions to a former or degraded wetland resource.
NR 350.003(38)
(38) “
Secondary impacts” means impacts to wetlands that are causally linked to the proposed project.
NR 350.003 Note
Note: Secondary impacts may include, but are not limited to, hydrologic impacts, changes in wildlife use to due habitat fragmentation or habitat conversion, or the introduction or increase of invasive or non-native plant species to a wetland.
NR 350.003(39)
(39) “
Temporary impacts” means adverse impacts to wetlands that are not permanent and are the result of a permitted or exempt project and meet one or more of the following requirements:
NR 350.003(39)(c)
(c) Restore preexisting wetland function at or soon after the conclusion of the permitted or exempt activity.
NR 350.003 Note
Note: Temporary impacts may include, but are not limited to, open trenching, timber mat placement, or temporary vegetation clearing.
NR 350.003(40)
(40) “
Wetland” means an area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.
NR 350.003(41)
(41) “Wetland delineation” means the standard procedure for determining the boundary of a wetland area, following the process required under s.
281.36 (2m), Stats.
NR 350.003 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (37) (b) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.004(1)(1)
For mitigation required under the issuance of wetland individual permits per s.
281.36 (3n) (d), Stats., and for a discharge that is exempt from permitting requirements under s.
281.36 (4n) (b) or
(c), Stats., the department may, in consultation with the U.S. army corps of engineers, allow mitigation to be completed using a wetland mitigation bank, participating in the in-lieu fee program, or completing a permittee-responsible project in the same service area as the site of the discharge.
NR 350.004(2)
(2) For wetland mitigation banks, mitigation shall be allowed according to the following order of preference:
NR 350.004(2)(a)
(a) Purchase of mitigation bank credits in the same HUC 8 watershed as the wetland impacted by the discharge.
NR 350.004(2)(b)
(b) Purchase of mitigation bank credits in the same service area as the wetland impacted by the discharge.
NR 350.004(2)(c)
(c) Purchase of mitigation bank credits in the same basin as the wetland impacted by the discharge.
NR 350.004(3)
(3) The department may allow credits to be purchased from a different mitigation bank than one under sub.
(2) or allow mitigation to be done through the in-lieu fee program if it determines that doing so would better serve natural resource goals, such as retaining flood water, improving water quality, improving hydrologic function, improving or restoring wildlife habitat, or more closely matching the impacted wetland type. The department may also consider economic factors when making this determination as described in s.
281.36 (3r) (ag), Stats.
NR 350.004(4)
(4) Mitigation through the use of mitigation banks or the in-lieu fee program shall be preferred over permittee-responsible mitigation. However, permittee-responsible mitigation in the same service area as the wetland impacted by the discharge may be allowed upon review of all of the following factors:
NR 350.004(4)(d)
(d) Appropriateness of site location relative to proposed wetland impacts.
NR 350.004(4)(e)
(e) Ability to offset lost wetland functions incurred by a proposed project.
NR 350.004(5)
(5) If the department requires a permittee or exempt project proponent to purchase mitigation bank credits, the permittee or exempt project proponent shall purchase credits from a bank with a mitigation bank instrument that has been approved by the department and is listed on the department mitigation banking website and shall submit to the department an affidavit that the purchase is completed. The affidavit shall include all the following:
NR 350.004(5)(c)
(c) The project location, including township, range, and section, and municipality.
NR 350.004(5)(d)
(d) The HUC 8 name and the service area name where the impacts will occur.
NR 350.004(5)(f)
(f) Acreage of impacts by wetland community type, if applicable.
NR 350.004(5)(g)
(g) The number of credits purchased by wetland community type, if applicable.
NR 350.004(5)(h)
(h) The signatures of both the permittee or exempt project proponent and the mitigation bank sponsor.
NR 350.004(6)
(6) The department shall not issue a wetland individual permit or submit a notification of eligibility for an exemption unless one or more of the following applies:
NR 350.004(6)(a)
(a) The permittee or exempt project proponent has provided proof that mitigation requirements have been completed, including an affidavit of credit purchase from a mitigation bank sponsor or an in-lieu fee program sponsor, or an approved compensation site plan for a permittee-responsible mitigation project.
NR 350.004(6)(b)
(b) The department and permittee have agreed to a restoration plan for temporary or secondary impacts.
NR 350.004(6)(c)
(c) The department has issued a wetland individual permit approval which specifies that the permittee must complete mitigation requirements prior to a discharge.
NR 350.004 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.005
NR 350.005 Amount of compensatory mitigation required. NR 350.005(1)(1)
The department shall determine the amount of mitigation required for adverse impacts to wetlands associated with a wetland individual permit under s.
281.36 (3n) (d), Stats., or an exemption under s.
281.36 (4n) (b) or
(c), Stats., based on the criteria in this section and shall inform the permittee or exempt project proponent of the determination.
NR 350.005(2)
(2) The department will determine the amount of mitigation required on a case-by-case basis based on the quality and type of wetlands impacted, the duration of the impacts, the measure of lost wetland function, the temporal loss of wetland function, and the location of the proposed mitigation. The department shall ensure that the loss of wetland function due to adverse impacts associated with an individual permit or exemption is compensated for with an appropriate mitigation amount. The department shall evaluate the lost function of impacted wetlands using one of the following methods:
NR 350.005(2)(a)
(a) The department may use an appropriate wetland functional or condition assessment method such as the Wisconsin rapid assessment method, or another department approved method designed to measure impacts to wetland functions and values.
NR 350.005(2)(b)
(b) The department may use a crediting system based on wetland type, location, or function to measure wetland impacts and wetland mitigation potential. If mitigation is required for adverse impacts to wetlands and the department uses a crediting system to evaluate the impacts, all of the following apply:
NR 350.005(2)(b)1.
1. If the department requires the permittee or exempt project proponent to purchase mitigation bank credits from a wetland mitigation bank, the mitigation required for the wetland impacts shall be no less than 1.2 credits per one acre of direct impacts for mitigation bank credits purchased in the same service area and of the same wetland community type. The department may require a higher mitigation ratio for bank credits under the following circumstances:
NR 350.005(2)(b)1.a.
a. The ratio may be increased for the purchase of mitigation bank credits out-of-kind from the impacted wetland community type.
NR 350.005(2)(b)1.b.
b. The ratio may be increased for the purchase of mitigation bank credits in a different service area than where the wetland impacts are to occur.
NR 350.005(2)(b)1.c.
c. The ratio may be increased for the purchase of mitigation bank credits to offset temporal loss of wetland functional values associated with the mitigation credits.
NR 350.005(2)(b)1.d.
d. The ratio may increase to fully compensate for impacts to wetland function and acreage.
NR 350.005(2)(b)2.
2. If the department requires the permittee or exempt project proponent to purchase credits from an approved in-lieu fee program, the ratio for mitigation shall be no less than 1.45 credits per one acre of direct impacts to compensate for the adverse impacts to wetlands and to account for the temporal loss of wetland acres and function.
NR 350.005 Note
Note: The department makes decisions on the amount of mitigation required in consultation with the U.S. army corps of engineers and in accordance with federal wetland mitigation regulations and guidelines.
NR 350.005(2)(b)3.
3. If the department determines that the permittee or exempt project proponent shall complete a permittee-responsible mitigation project for direct wetland impacts, the starting mitigation ratio shall be no less than 1.2 credits per one acre of direct impacts. The required mitigation amount for a permittee-responsible mitigation project shall be determined on a case-by-case basis and may include ratio increases for impacts to rare wetland types, out-of-kind wetland mitigation, temporal wetland functional loss, or for mitigation in a different service area than where the discharge occurred.
NR 350.005(3)
(3) The department may determine that mitigation is required for secondary impacts to wetlands associated with wetland individual permits or exemptions.
NR 350.005 Note
Note: The department may require mitigation for secondary impacts to wetlands such as conversion of wetland type or hydrologic impacts.
NR 350.005(4)
(4) The department may determine that mitigation is required for temporary impacts to wetlands associated with wetland individual permits or exemptions.
NR 350.005 Note
Note: The department may require mitigation for temporary impacts to wetlands such as forested wetland clearing, or temporary impacts to any wetland plant community that is dominated by native plant species.
NR 350.005 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22. NR 350.006(1)(1)
For mitigation bank projects under ss.
NR 350.008 to
350.009, and permittee-responsible mitigation projects under s.
NR 350.011, the department may evaluate the wetland function that will be restored, created, enhanced, or preserved by a mitigation project with any of the following methods:
NR 350.006(1)(a)
(a) A wetland functional or condition assessment method such as the Wisconsin rapid assessment method, or another department approved method designed to measure wetland impacts.
NR 350.006(2)
(2) The location of existing wetland boundaries for use in calculating acreage of wetland at a mitigation site shall be made by a mitigation sponsor through the completion of a wetland delineation under s.
281.36 (2m), Stats., or by an alternative method approved by the department.
NR 350.006(3)
(3) If the department uses a crediting system, the department shall calculate the appropriate amount of credit produced by a mitigation site based on information provided in the compensation site plan under s.
NR 350.007 (6) and may also use field collected data by the department or by a partner agency.
NR 350.006(4)
(4) Reestablishment of hydrology, land contours, and native plant communities on a former wetland site with hydric soils will receive up to one credit for every one acre restored.
NR 350.006(5)
(5) Rehabilitation of multiple wetland functions on an existing wetland site will generally receive less credit than reestablishment but may receive up to one credit for every one acre restored.
NR 350.006(6)
(6) Credit for enhancement of degraded vegetation on an existing wetland site will generally receive less credit than reestablishment or rehabilitation but may receive up to one credit for every one acre enhanced. Proposed activities that result in conversion of one wetland type to another wetland type will generally not be given credit. The department may consider calculating credit for these activities on a case-by-case basis when the mitigation sponsor demonstrates that conversion activities will enhance wetland functions.
NR 350.006(7)
(7) The department will only allow creation if the department determines that the planned creation will provide significant wetland function. Any creation accepted by the department will generally receive lower credit than reestablishment or rehabilitation but may receive up to one credit for every one acre created. A permittee-responsible mitigation project involving creation shall adequately compensate for adverse impacts to wetlands.
NR 350.006(8)
(8) The department will allow preservation at less credit than other restoration or enhancement activities if the proposed mitigation project meets all of the following criteria:
NR 350.006(8)(a)
(a) The mitigation project will preserve wetland resources under demonstrable threat of destruction or adverse modifications. Threat of destruction or adverse modifications includes water quality degradation, water quantity loss, or habitat destruction as the result of development, logging, mining, or other land use changes that are imminent based on demonstrable evidence on or adjacent to the proposed mitigation site.
NR 350.006(8)(b)
(b) The mitigation project will preserve wetland resources that provide important physical, chemical, or biological functions for the watershed.
NR 350.006(8)(c)
(c) The mitigation project will preserve wetland resources that contribute significantly to the ecological sustainability of the watershed or are considered rare and high-quality wetlands.
NR 350.006(8)(d)
(d) The mitigation project permanently protects the preserved site through an appropriate real estate or other legal instrument, such as a conservation easement or title transfer to a public agency or land trust.
