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 incur 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.
11. Agency Contact Person:
Thomas Pearce, In-Lieu Fee Project Manager
Waterways
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Thomas Pearce
Department of Natural Resources
101 S. Webster Street, WT/3, PO Box 7921, Madison, WI 53707
Section 1 NR 350 is repealed and recreated to read:
NR 350.001 Purpose. (1) 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, implementation, 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.
(2) This chapter is adopted pursuant to s. 281.36, Stats. Note: Additional information can be found in Guidelines for Wetland Compensatory Mitigation in Wisconsin Version 1.
NR 350.002 Applicability. (1) This chapter applies to all the following:
(a) Permitted and exempt wetland impacts requiring mitigation under s. 281.36, Stats. (b) Wetland compensatory mitigation projects, including private mitigation bank, in-lieu fee program, and permittee-responsible projects, that are considered by the department as part of a review process conducted in accordance with chs. NR 103, 131, and 132. (2) This chapter does not apply to any of the following:
(a) Wetland compensatory mitigation conducted by the department of transportation as part of the liaison process pursuant to s. 30.2022, Stats. (b) Compensatory mitigation conducted as a requirement of a federal permit issued prior to February 1, 2002.
(c) Compensatory mitigation for ferrous mining or bulk sampling activities in accordance with s. 295.60 (8), Stats. NR 350.003 Definitions. In this chapter:
(1) “Bank service area” or “Service area” means the geographic area corresponding to a HUC 6 watershed within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank or an in-lieu fee program as determined in a mitigation bank or in-lieu fee program instrument.
Note: The terms “bank service area” and “service area” refer to the same watersheds as described in the memorandum of agreement between the department and the United States army corps of engineers that adopts guidelines for wetland compensatory mitigation in Wisconsin. There are 12 service areas that correspond to HUC 6 watersheds, except for the Wisconsin River HUC 6 which is split into Upper and Lower Wisconsin, and the Southwestern Lake Superior HUC 6 is shortened to the name “Lake Superior”
(2) “Basin” means the Lake Superior, Lake Michigan, or Mississippi River basin.
(3) “Compensation” or “compensatory mitigation” means the restoration, enhancement, or creation of wetlands expressly for the purpose of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.
(4) “Compensation search area” means the geographic areas within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank, including, in order, the HUC 8 watershed, the HUC 6 service area, and basin as the search is conducted.
(5) “Compensation site plan" means a comprehensive document prepared by a mitigation sponsor that provides a description of baseline conditions, restoration activities and design, and desired outcomes of a proposed wetland mitigation project, is approved by the department as part of a mitigation bank instrument or non-department in-lieu fee program instrument modification, and is synonymous with the mitigation plan described in the Federal Mitigation Rule (33 CFR 332.4(c)). (6) “Corrective action" means an action taken by a mitigation sponsor to correct deficiencies in a wetland mitigation project as early as possible after the problem is noticed.
(7) “Creation" means the manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site that results in a gain in wetland resource area and functions.
(8) “Credit" means a unit of measure representing the attainment of wetland function at a mitigation site.
(9) “Credit ratio” means the amount of mitigation a project proponent shall provide at a mitigation project compared to the acres of wetland lost from a permitted or exempt impact.
(10) “Debit" means a unit of wetland function that is withdrawn from a mitigation bank upon approval of a credit sale.
