Section NR 350.004 - Mitigation alternatives(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.(2) For wetland mitigation banks, mitigation shall be allowed according to the following order of preference:(a) Purchase of mitigation bank credits in the same HUC 8 watershed as the wetland impacted by the discharge.(b) Purchase of mitigation bank credits in the same service area as the wetland impacted by the discharge.(c) Purchase of mitigation bank credits in the same basin as the wetland impacted by the discharge.(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.(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: (a) Technical feasibility.(b) Ecological suitability.(c) Likelihood of self-sustainability.(d) Appropriateness of site location relative to proposed wetland impacts.(e) Ability to offset lost wetland functions incurred by a proposed project.(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:(a) The name of the mitigation bank.(c) The project location, including township, range, and section, and municipality.(d) The HUC 8 name and the service area name where the impacts will occur.(e) The relevant agency permit number or exemption number.(f) Acreage of impacts by wetland community type, if applicable.(g) The number of credits purchased by wetland community type, if applicable.(h) The signatures of both the permittee or exempt project proponent and the mitigation bank sponsor.(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: (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.(b) The department and permittee have agreed to a restoration plan for temporary or secondary impacts.(c) The department has issued a wetland individual permit approval which specifies that the permittee must complete mitigation requirements prior to a discharge.Wis. Admin. Code Department of Natural Resources § NR 350.004
CR 00-164: cr. Register January 2002 No. 553, eff. 2-1-02.Adopted by, 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, eff. 3/1/2022