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.
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
Text of the Rule
Chapter 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) “As-built report” means a document summarizing the completed construction activities on a mitigation bank site, including any changes to the construction plan that occurred.
(2) “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 an agreement between the department and the U.S. army corps of engineers and referenced 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 an 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 portions of several HUC 6 watersheds adjacent to Lake Superior are combined and referred to as “Lake Superior.”
(3) “Basin” means the Lake Superior, Lake Michigan, or Mississippi River basin.
(4) “Compensation” or “compensatory mitigation” means the restoration, enhancement, creation, or preservation 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.
(5) “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 service area, and basin as the search is conducted.
(6) “Compensation site plan” means a comprehensive document prepared by an applicant or 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, permittee-responsible mitigation project, 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)).
