NR 350.009(3)(b)
(b) The department will evaluate the site against the established performance standards described in the project's approved compensation site plan in s.
NR 350.007 (6) (i).
NR 350.009(3)(c)
(c) A monitoring plan shall take into consideration unique aspects of the site.
NR 350.009(3)(d)
(d) A monitoring plan shall include a monitoring schedule of adequate frequency and duration to measure specific performance standards and to assure long-term success of the stated goals for the site.
NR 350.009(3)(e)
(e) A monitoring plan shall be sufficient to assess trends in wetland function at the site and the degree to which the performance standards for the site are met.
NR 350.009(3)(f)
(f) A mitigation bank sponsor shall provide a monitoring report to the department as agreed upon in the approved compensation site plan.
NR 350.009(3)(g)
(g) A minimum of 5 monitoring reports shall be required during the monitoring period and a mitigation bank sponsor may submit additional monitoring reports if performance standards are not met in the number of monitoring years as approved in the final mitigation bank instrument.
NR 350.009(3)(h)
(h) Monitoring shall occur for the length of time specified in the approved compensation site plan under s.
NR 350.007 (6) (k). The monitoring period for restoration, enhancement, or creation activities will be required for no fewer than 5 years for all wetland communities. Shrub and wooded wetland communities, and wetland types that are more difficult to restore, such as bog or fen wetlands, may require more than 5 years of monitoring to meet performance standards, become successfully established on a site, or both. The length of the required monitoring period for each vegetation community will be based on the performance standards developed in the approved compensation site plan. The department may extend the length of the monitoring period if the site does not meet performance standards in the monitoring time frame listed in the approved compensation site plan.
NR 350.009(3)(i)
(i) Monitoring report requirements shall include all of the following:
NR 350.009(3)(i)1.
1. A restatement of the compensation site plan goals, objectives, and performance standards.
NR 350.009(3)(i)2.
2. Identification of any structural failures or external disturbances on the site.
NR 350.009(3)(i)3.
3. A description of management activities and corrective actions implemented on the site during the past year.
NR 350.009(3)(i)4.
4. A summary of and full presentation of the data collected during the past year.
NR 350.009(3)(i)5.
5. A site map showing the locations of data collection by each vegetation community survey method and the locations of monitoring wells.
NR 350.009(3)(i)6.
6. An assessment of the degree to which performance standards are being met.
NR 350.009(3)(i)7.
7. Proposed corrective actions to improve attainment of performance standards.
NR 350.009(3)(i)8.
8. A narrative summary of the results and conclusions of the monitoring.
NR 350.009(3)(i)9.
9. Any proposed credit releases, as outlined in the site's approved compensation site plan.
NR 350.009(3)(j)
(j) If after review of the monitoring report, the department identifies conditions that indicate a site is unlikely to meet performance standards, the department may require corrective actions to the sponsor that may allow the mitigation site to meet the performance standards as agreed upon in the mitigation bank instrument.
NR 350.009(3)(k)
(k) At the end of the monitoring period, the department shall provide a final letter of compliance by email or mail if the department determines that the site is successful and established.
NR 350.009(3)(L)
(L) After the department issues a final letter of compliance, the department shall release financial assurances as appropriate.
NR 350.009(4)(a)
(a) As part of an as-built report under sub.
(2) (c) and as part of a monitoring report under sub.
(3) (h) a mitigation bank sponsor may submit a credit release to the department when performance standards have been achieved according to the mitigation bank instrument.
NR 350.009(4)(b)
(b) A credit release request shall include all of the following:
NR 350.009(4)(b)2.
2. An explanation of any previous credit releases that have been granted to the mitigation bank, including the amount of credits released and when those credits were released.
NR 350.009(4)(c)
(c) Within 45 days of receiving or within 30 days after a necessary site visit has been completed, the department shall provide a recommendation by email or mail to the U.S. army corps of engineers on whether or not to release credits. The department may recommend releasing partial credit if the performance standards in question have only been achieved in part.
NR 350.009 Note
Note: Should the U.S. army corps of engineers' review of credit release requests extend beyond the stated timeline, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
NR 350.009(5)
(5)
Adaptive management and instrument modification.
NR 350.009(5)(a)(a) The mitigation bank sponsor may request to use the adaptive management plan described in s.
NR 350.007 (6) in the event that the site or an area of the site is developing differently than designed and may adversely affect the success of the mitigation bank.
NR 350.009(5)(b)
(b) Prior to completing adaptive management strategies that would result in wetland functions that are not comparable to those described in the mitigation bank's approved compensation site plan, such as but not limited to filling, grading, exaction, or hydrologic manipulations, the mitigation bank sponsor shall provide all of the following information to the department:
NR 350.009(5)(b)2.
2. The adaptive strategy that will be used to rectify the issue, including when and how the adaptive management strategy will be implemented.
NR 350.009(5)(c)
(c) If the adaptive management strategy involves activities such as but not limited to excavation or hydrologic manipulations, or will result in wetland functions that are not comparable to those described in the mitigation bank's approved compensation site plan, the department may require a mitigation bank instrument modification. If required, a mitigation bank instrument modification shall include all of the following:
NR 350.009(5)(c)1.
1. Revised performance standards based on the anticipated adaptive management outcome.
NR 350.009(5)(c)2.
2. Revised credit allocations based on the anticipated adaptive management outcome.
NR 350.009(5)(c)3.
3. A revised credit release schedule based on the anticipated adaptive management outcome.
NR 350.009(5)(c)4.
4. A revised long-term management plan based on the anticipated adaptive management outcome.
NR 350.009(5)(d)
(d) The department's completion of a modified bank instrument review shall be dependent upon whether the modification qualifies as a standard or streamlined review.
NR 350.009(5)(e)
(e) The department may use a streamlined review for the following instrument modifications:
NR 350.009(5)(e)1.
1. A request for a greater or lesser amount of credits for a mitigation project.
NR 350.009(5)(e)3.
3. Any other request for a change that the department deems appropriate.
NR 350.009(5)(f)
(f) The department shall complete a streamlined instrument modification review within 60 days of receipt of such a request. The department shall either recommend to approve the streamlined modification request, recommend to deny the streamlined modification request, or provide information to the mitigation bank sponsor explaining the information needed to make the streamlined modification request approvable.
NR 350.009(5)(g)
(g) The department shall use a standard modification review process for all requests that do not meet the standards listed in par.
(e).
NR 350.009 Note
Note: As an interagency review team member, the department will review standard and streamlined instrument modification submittals according to the timelines stated above and will issue its recommendations to the U.S. army corps of engineers. Should the U.S. army corps of engineers' review of these requests extend beyond the stated timelines, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
NR 350.009(6)(a)
(a) The party responsible for the site's long-term management shall follow the long-term management plan per the approved compensation site plan described in s.
NR 350.007 (6) to ensure the mitigation bank's long-term sustainability.
NR 350.009(6)(b)
(b) The party responsible for the site's long-term management shall fund the long-term management plan per the approved compensation site plan described in s.
NR 350.007 (6) to ensure the mitigation bank's long-term sustainability.
NR 350.009 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) (d), (3) (h), (5) (g) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.010
NR 350.010 Department in-lieu fee program operation. NR 350.010(1)(1)
General. The department shall sponsor an in-lieu fee mitigation program to provide mitigation options to permittees required to mitigate for adverse impacts associated with a wetland individual permit under s.
281.36 (3n) (d), Stats., or for exempt project proponents required to mitigate for adverse impacts associated with a wetland exemption under s.
281.36 (4n) (b) or
(c), Stats. The department in-lieu fee program established under s.
281.36 (3r) (e), Stats., shall have a program instrument approved by the U.S. army corps of engineers and shall be consistent with federal regulations.
NR 350.010(2)
(2)
Instrument. The department shall create an in-lieu fee program instrument, which shall include a description of proposed service areas, accounting procedures, default and closure provisions, reporting protocols, specification of the initial allocation of advanced credits, a credit fee methodology, a description of the program account, and a compensation planning framework that details mitigation priorities.
NR 350.010(3)
(3)
Service areas. The department in-lieu fee program may sell advanced credits and complete mitigation projects to fulfill sold advanced credits in all service areas in Wisconsin as approved by the U.S. army corps of engineers.
NR 350.010(4)
(4)
Credit fee schedule. The department in-lieu fee program will periodically review and revise the credit fee in each service area taking into account the cost factors associated with a full wetland mitigation project, including administration, appraisals, surveys, title insurance, land acquisition, conservation easements, design and planning, permit fees, engineering and modeling, construction, maintenance, monitoring, long-term management, remediation or adaptive management activities, and other factors as deemed necessary to project success by the U.S. army corps of engineers. The department will evaluate credit fees after the end of each state fiscal year on June 30. If the department determines that it is necessary to revise credit fees based on a full cost accounting of a wetland mitigation project, the department shall set the new prices on January 1 of the following calendar year and will post the changes on the in-lieu fee program website. The department shall provide an annual report to the U.S. army corps of engineers for each fiscal year that includes justification for changes made to credit fees.
NR 350.010(5)(a)
(a) The department shall use a request for proposals application process and the department shall use internal site identification methods to identify suitable mitigation projects.
NR 350.010(5)(b)
(b) The department request for proposals process may be developed for consultants to provide partial delivery, which could include one or more of design and planning, construction, maintenance, or monitoring project aspects, or full delivery, which includes all aspects of a wetland mitigation project. The department shall advertise funds available for mitigation projects in each service area on the department website for at least one round of proposals prior to contracting with a partner to pursue a prospectus.
NR 350.010(5)(c)
(c) The department shall create a project application and publish the application form on the in-lieu fee program website. The department will accept mitigation project proposals from any person. The department will answer questions from potential applicants regarding the application form or the request for proposals process. The department will publish staff contact information on the in-lieu fee program website.
NR 350.010(5)(d)
(d) The department shall establish scoring criteria to be used to review mitigation proposals. The scoring criteria shall ensure to the most practicable extent that selected projects compensate for wetland function on the landscape and shall include criteria pertaining to the ability of the proposal to generate mitigation credits to meet in-lieu fee program regulatory requirements, the ability of the site to meet watershed goals as documented in the in-lieu fee program instrument, the ecological suitability of the site, site hydric soils, and site hydrology. The department shall publish the scoring criteria on the in-lieu fee program website. The department shall periodically review and revise the scoring criteria to comply with federal regulations.
NR 350.010(5)(e)
(e) The department will announce and publish a request for proposals for mitigation projects on a quarterly rolling basis. The department shall notify applicants of the status of their proposals within 30 days after the request for proposals close date.
NR 350.010(5)(f)
(f) The department will search for potential mitigation projects on public and private land in addition to finding sites through the request for proposals process.
NR 350.010(5)(g)
(g) The department in-lieu fee program may pursue any potential mitigation site at any time in order to meet construction timelines or other federal requirements.
NR 350.010(5)(h)
(h) If the department identifies a mitigation site on department land, the department may develop a prospectus to submit to the U.S. army corps of engineers. The department may request a contractor to complete additional or all remaining phases of the mitigation project using a request for proposals process.
NR 350.010(5)(i)
(i) The department may choose to contract for services according to each project phase, including prospectus development, compensation site plan development, construction, monitoring and maintenance, and long-term management. Contract payments will typically be made on a quarterly schedule through an invoice of services and materials costs.
NR 350.010(6)(a)(a) The department shall record a conservation easement or comparable legal instrument on mitigation sites not owned by the department unless the U.S. army corps of engineers approves a comparable legal instrument.
NR 350.010(6)(b)
(b) The department shall place a restrictive covenant on mitigation sites owned by the department unless a comparable site protection mechanism is already or is planned to be recorded on the property, as approved by the U.S. army corps of engineers.
NR 350.010(7)(a)
(a) The department shall establish a mechanism for financial reserves for long-term mitigation project management to be used for annual easement inspection, invasive species control, and any other site maintenance and monitoring needs on closed mitigation projects.
NR 350.010(7)(b)
(b) The department may establish a non-wasting endowment for project funds to be used annually for long-term site management. Other mechanisms may also be used, if necessary, to ensure sufficient funds for long-term site management.
NR 350.010(7)(c)
(c) When credit generation is complete and a mitigation project is closed, the department may contract with a private, public, or nonprofit partner to implement annual long-term management according to the compensation site plan. A contracted partner may provide additional funds for long-term maintenance.
NR 350.010 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22. NR 350.011
NR 350.011 Permittee-responsible mitigation. NR 350.011(1)(1)
General. A permittee-responsible mitigation project must ensure that wetland impacts are compensated for through long-term site protection as described under sub.
(2), through the implementation of an approved compensation site plan as described under sub.
(4), and by assurance that the mitigation project is financially viable as required under sub.
(3).
NR 350.011(2)
(2)
Legal site protection document. The requirements for site protection in s.
NR 350.008 (4) shall apply to a permittee-responsible mitigation project.
NR 350.011(3)
(3)
Financial assurances. The requirements for financial assurances in s.
NR 350.008 (3) shall apply to a permittee-responsible mitigation project.
NR 350.011(4)(b)
(b) Monitoring shall occur for the length of time specified in the approved compensation site plan under s.
NR 350.007 (6) (k). The required monitoring period will be no fewer than 5 years for herbaceous wetland communities. Shrub and wooded wetland communities may require more than 5 years of monitoring to meet performance standards, become successfully established on a site, or both. The department may extend the final length of the monitoring period if the site does not meet performance standards in the time frame as approved in the compensation site plan.
NR 350.011(4)(c)
(c) When the department approves a permittee-responsible compensation site plan, it shall incorporate the compensation site plan as a condition of any permit it issues to the permittee or as a condition of the exemption determination for an exempt project applicant.
NR 350.011(5)
(5)
Long-term management. The requirements for long-term management in s.
NR 350.008 (5) shall apply to a permittee-responsible mitigation project.
NR 350.011 History
History: CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (4) (b) made under s. 35.17, Stats., Register February 2022 No. 794. NR 350.012(2)
(2) Any agent or employee of the department shall at all times be given reasonable access to any and all parts of a project site and may enter upon any property to investigate the project.
NR 350.012(3)
(3) A violation of a permit, approval, contract or order issued relating to a project under this chapter is a violation of the statutes or rules relating to the issuance of that permit, approval, contract or order.
