Wetland compensatory mitigation
In March 2012, Governor Walker signed into law 2011 WI Act 118, which for the first time requires certain applicants to mitigate for unavoidable adverse wetland impacts approved under a wetland individual permit per 281.36, Wis. Stats.. Compensatory mitigation involves the restoration, enhancement, creation or preservation of wetlands to compensate for unavoidable adverse impacts to other wetlands. There are three avenues for satisfying compensatory mitigation requirements of wetland individual permits.
Types of compensatory mitigation
- Wetland Mitigation Banking
A wetland individual permit applicant can purchase credits from an approved bank to satisfy their compensatory mitigation requirement.
- In-lieu fee program
Although currently not an option, we are actively working through the four-phase U.S. Army Corps of Engineers approval process to establish an in-lieu fee program. Once established, a wetland individual permit applicant can purchase credits from an in-lieu fee program to satisfy their compensatory mitigation requirement.
- Permittee Responsible Mitigation
A wetland individual permit applicant can satisfy their compensatory mitigation requirement by completing a mitigation project within the same watershed service area or within a half mile of the permitted unavoidable wetland adverse impact.
The new Wisconsin regulations identify participation in mitigation banking and in-lieu fee programs as the preferred avenues to satisfying compensatory mitigation requirements.
Wetland individual permit mitigation basics
- Permit applicants should contact the appropriate DNR Water Management Specialist (WMS), based on the county where the project is located, as early as possible to hold a mandatory pre-application meeting. The purpose of this meeting is to determine requirements, discuss the intended activity and ways to avoid and minimize adverse wetland impacts.
- Permit applicants are also encouraged to contact the appropriate US Army Corps of Engineer project manager to determine whether they may also require a permit and compensatory mitigation for the intended activity.
- After first avoiding and minimizing adverse wetland impacts applicants should then involve the DNR Wetland Mitigation Coordinator to determine which of the available compensatory mitigation types best replaces the lost wetland function.
Frequently Asked Questions
- What types of DNR regulated wetland activities require compensatory mitigation?
Activities that trigger a DNR wetland individual permit will require compensatory mitigation for unavoidable adverse wetland impacts, whereas activities that are regulated under a wetland general permit do not.
The U.S. Army Corps of Engineers may also require compensatory mitigation through the Federal Section 404 permitting program and therefore should be contacted early on to determine requirements.
Compensatory mitigation may therefore be required as part of a state individual wetland permit, a federal permit or both making early regulatory agency contact and coordination a key consideration for applicants.
- Is it true that if a wetland individual permit applicant proposes mitigation they are entitled to receive permit approval?
No. Section 281.36(3n), Wis. Stats., reinforces the fact that mitigation does not entitle an applicant to a wetland individual permit. Applicants must first avoid adverse wetland impacts by looking towards the least environmentally damaging practicable alternative and then minimize their effect on wetland functional values, water quality and overall significant adverse environmental consequences.
- Where are bank credits available for purchase and how do I contact them?
Our Wetland Mitigation Bank Registry depicts the DNR-approved banks throughout Wisconsin in each Bank Service Area (BSA). On this page you will also find the contact information for the bank sponsor, whom you can contact for credit availability and pricing.
- Can I buy in-lieu fee program credits to satisfy compensatory mitigation requirements?
No. Purchasing credits from a DNR sponsored In-Lieu-Fee Program is not currently available and the Federal Regulations (33 CFR Part 332) that govern In-Lieu Fee Programs dictate that no fees may be collected until all stages of program development are completed and approved by the Army Corps of Engineers. However, participation may be an option in the future as this program is currently in the development stages.