Wisconsin Administrative Code
Department of Natural Resources
NR 300-399 - Environmental Protection - Water Regulation
Chapter NR 350 - Wetland Compensatory Mitigation
Section NR 350.008 - Process for establishing a mitigation bank
Universal Citation: WI Admin Code ยง NR 350.008
Current through August 26, 2024
(1) PROCESS.
(a) A mitigation bank sponsor shall prepare
and submit a mitigation bank prospectus to the department under s. NR 350.007(1) to (3).
(b) Within 90
days of receipt of a bank prospectus, the department shall provide through
email or mail the department's written opinion of the likelihood that the
proposed compensation site will comply with the requirements of this chapter.
The department may request a site visit prior to providing its written
opinion.
(c) Based on comments
received from the department a prospective mitigation bank sponsor shall
prepare and submit a draft mitigation bank instrument to the department. A
complete draft mitigation bank instrument shall include all of the following:
1. A complete compensation site plan under s.
NR 350.007(6).
2. Information on
the operation of the bank including the expected number of credits, provisions
for the sale of credits, accounting and reporting procedures, and provisions
for site inspections pursuant to s. NR 350.009.
3. A discussion of the persons responsible
for management of the bank accounting, long-term ownership, monitoring,
maintenance, and long-term management of the site.
4. Proposed financial assurances for the site
pursuant to sub. (3).
5. A proposed
conversation easement for the site pursuant to sub. (4).
6. A proposed schedule that includes a
timeline for submittal of a final mitigation bank instrument, construction, and
monitoring under s. NR 350.007(6).
(d) Within 90 days of receipt of a complete
draft mitigation bank instrument, the department shall provide through email or
mail a status update letter that may include any of the following:
1. The department may recommend that the
sponsor prepare and submit a final mitigation bank instrument.
2. The department may require supplemental
information regarding specific components of the draft mitigation banking
instrument prior to the preparation and submittal of the final mitigation
banking instrument.
3. The
department may require a revised draft mitigation banking instrument submittal
if the original proposal is determined to have a high likelihood of failure or
key components were missing from the submittal.
(e) If the sponsor completes a submittal
under par. (d) 1. or 2., the department shall provide through email or mail a
written description of any missing items that must be included and concerns
that need to be addressed to make the final mitigation bank instrument
approvable.
(f) Based on comments
received from the department a prospective mitigation bank sponsor shall
prepare a final mitigation bank instrument. The final mitigation bank
instrument shall include all of the following:
1. Any changes requested by the department,
as described in par. (d).
2. Final
versions of the construction and post construction financial assurances that
are put in place under sub. (3).
3.
A final version of the conservation easement or comparable legal instrument for
the site under sub. (4).
(g) After a mitigation bank sponsor submits a
final mitigation bank instrument to the department, the department shall do all
of the following:
1. Within 30 days, notify
the mitigation bank sponsor whether the department intends to approve the final
mitigation bank instrument.
2. Once
the U.S. army corps of engineers determines that the instrument will be
approved, the department shall be a signatory to the final mitigation bank
instrument.
3. Include the bank on
a mitigation banking web page listing banks that are open and approved to sell
credits. If bank sponsors choose to include contact information and a project
narrative the department shall provide this information on the mitigation
banking web page.
Note: As an interagency review team member, the department will review mitigation bank prospectus submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; will review draft mitigation bank instrument submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; and the department will review final mitigation bank instrument submittals and notify its intent to approve or object within 30 days of receipt. Should the U.S. army corps of engineers' review of any of these documents extend beyond the stated timeline, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
(2) CREDIT RELEASE SCHEDULE.
(a) The department shall require a credit
release schedule as part of a mitigation bank instrument under s. NR 350.007(6)
and review a credit release schedule proposal as part of its review of the
draft and final mitigation bank instrument proposals under sub. (1).
(b) The credit release schedule for a
mitigation bank may include scheduled releases at project milestones, including
but not limited to mitigation bank instrument approval and signing; the letter
of compliance from the department stating that construction, as documented in
the as-built report under s. NR 350.009(2) (c), and all corrective actions, if
applicable, are complete; and approval of a monitoring report that documents
fulfillment of performance standards.
(c) The department shall review a proposed
credit release schedule in accordance with s.
281.36(3w) (b), Stats., based on the following
considerations:
1. The level of financial
assurances proposed for construction, maintenance, and monitoring of a
mitigation project.
2. The level of
risk associated with a proposed mitigation project design, including but not
limited to the amount of engineered structures, extent of excavation, and
invasive plant species considerations.
(d) If a preservation activity is proposed
for an area or areas of a mitigation bank project, a credit release schedule
that allows for the full release of credits after the site protection mechanism
is recorded and the mitigation bank instrument is approved may be proposed for
preservation areas of the mitigation bank.
(3) FINANCIAL ASSURANCE REQUIREMENTS.
(a) The department shall require the
mitigation bank sponsor to submit a performance bond, irrevocable letter of
credit, irrevocable escrow account, irrevocable trust account, or other
financial assurance to ensure that a mitigation project is constructed,
operated, monitored, and maintained according to ss. NR 350.007(4) and 350.009(2) to (3) and in accordance with the approvals issued by the department
and other agencies involved in the approval process. The department may waive
the requirement for financial assurances for construction on a case-by-case
basis if the first credit release for a mitigation bank is scheduled to occur
after the mitigation bank sponsor has submitted and the department has approved
the as-built report.
(b) When
multiple regulatory authorities have jurisdiction over a mitigation project,
the regulatory authorities may develop and implement a cooperative financial
security arrangement to avoid requiring the mitigation bank sponsor to provide
financial assurances with more than one regulatory authority for the same
mitigation project.
(c) The
department shall require financial assurances to guarantee adequate
post-construction monitoring and maintenance for a specified time period after
construction is complete, or after performance standards are met, depending on
the type of mitigation project.
(d)
The mitigation bank sponsor shall submit a proposal for financial assurances as
part of the draft and final mitigation bank instrument. This proposal shall
include an estimate of costs for construction, operation, maintenance, and
monitoring.
(e) The department
shall evaluate the proposed amount of financial assurances and may require an
updated proposal in the subsequent mitigation bank instrument submittal or as
supplemental information.
(f) The
mitigation bank sponsor shall submit financial assurance instruments that meet
requirements determined by the department to be reasonably necessary to assure
proper construction, operation, monitoring, and maintenance of the mitigation
project. Requirements shall, at a minimum, include all of the following:
1. Forms of financial assurance, which
include a third party as obligor, shall be issued by a person authorized to do
business in this state.
2. Any
financial assurance instrument shall provide that the financial assurance
cannot be canceled or modified except after not less than 90 days' notice in
writing to the department by certified mail. Not less than 30 days prior to the
cancellation or modification of the financial assurance, the mitigation bank
sponsor shall deliver to the department a replacement for the financial
assurance. The department shall then notify the mitigation bank sponsor by
email or mail whether the replacement instrument is acceptable. If the
replacement financial assurance is not provided and accepted, the original
financial assurance shall remain in effect.
3. The financial assurances shall provide
that the mitigation bank sponsor will perform all requirements of the approvals
for the project. If the project site or the mitigation bank is transferred, the
new owner or successor in interest shall provide the necessary financial
assurance in the amount required by the department for the project.
4. The financial assurances shall be payable
to the "State of Wisconsin, Department of Natural Resources."
(g) The department may
periodically reevaluate and approve modifications to the amount or form of
financial assurance to reflect completion of tasks that are required under the
department's approval.
(h) A
mitigation bank sponsor may submit a request to the department to change from
one method of financial assurance to another. The department may approve or
deny the request.
(i) A mitigation
bank sponsor shall notify the department by certified mail of the commencement
of any voluntary or involuntary proceeding under bankruptcy code, 11 USC,
naming the mitigation bank sponsor as debtor, within 10 days of commencement of
the proceeding.
(4) LONG-TERM PROTECTION OF MITIGATION BANK SITE.
(a) A mitigation bank sponsor shall grant a
conservation easement under s.
700.40,
Stats., to the department or shall execute a comparable legal instrument
approved by the department to ensure that the restored, enhanced, preserved, or
created wetland and any creditable uplands will not be destroyed or
substantially degraded by any subsequent owner of or holder of interest in the
property on which the bank site is located. The department shall revoke
approval for a mitigation bank if the bank sponsor fails to provide the
conservation easement.
(b) The
department shall modify or release a conservation easement issued under sub.
(1) if the conditions in s.
281.36(8m),
Stats., apply.
(5) LONG-TERM MANAGEMENT.
(a) The department
shall require a long-term management plan as part of a mitigation bank
instrument under s. NR 350.007(6).
(b) The long-term management plan must
identify all of the following:
1. The party
responsible for ownership and all long-term management and protection of the
mitigation project site.
2. Any
legal mechanisms required as part of the mitigation site's long-term
management.
3. A description of
planned long-term management needs and actions including a schedule of
predicted activities.
4. An annual
cost estimate to complete the long-term management needs and actions.
5. A description of the funding source or
mechanism that will be used to pay for long-term management needs and actions,
including the planned investment, forecasted fund growth, and a narrative
describing the sustainability of the funds.
(c) A mitigation bank sponsor may choose to
be responsible for the long-term management or they may propose to transfer the
responsibility to a land stewardship entity, such as a public agency,
non-governmental organization, or private land manager.
(d) The department may consider any of the
following as viable long-term funding mechanisms:
1. Non-wasting endowment.
2. Legally established trusts.
3. Contractual agreements with future
responsible parties.
4. Other
legally established funding mechanisms, as appropriate.
(e) A mitigation bank sponsor may propose to
transfer control and responsibility of the long-term management funding source
to a land stewardship entity, such as a public agency, non-governmental
organization, or private land manager.
(6) PUBLIC NOTICE.
(a) The department shall provide online
public notification for a received prospectus.
(b) The department shall develop a public
notice for each prospectus to include all of the following information:
1. The name of the mitigation bank
sponsor.
2. A brief description of
the mitigation bank including all mitigation bank sites.
3. The name, email address, and phone number
of a department staff member who can receive comments and respond to
questions.
4. A date by which the
department will accept and consider comments.
(c) The department shall distribute the
public notice to appropriate news media in the vicinity of the proposed
action.
(7) REVIEW FEE. The department shall charge a fee pursuant to s. 281.36(12) (b), Stats., for reviewing, investigating, and making decisions to approve or not approve mitigation bank instruments at the time that a mitigation bank sponsor submits a draft mitigation bank instrument to the department. The submittal fee for a draft mitigation bank instrument shall be $800.
Disclaimer: These regulations may not be the most recent version. Wisconsin may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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