Section NR 350.010 - Department in-lieu fee program operation(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.(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.(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.(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.(5) PROJECT DEVELOPMENT. (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.(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.(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.(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.(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.(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.(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.(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.(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.(6) SITE PROTECTION. (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.(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.(7) LONG-TERM MANAGEMENT.(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.(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.(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.Wis. Admin. Code Department of Natural Resources § NR 350.010
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. 3/1/2022