Wetland Compensatory Mitigation FAQs

• For which types of applications will the DNR require compensatory mitigation?



• With this program, is it true that an applicant can fill any wetland as long as he or she replaces it somewhere else?



• If the wetland proposed for filling is low quality, and an applicant offers mitigation, does the applicant only need to plan for a mitigation project that is for a low quality wetland?



• Will all small wetland losses be compensated for at mitigation banks?



• Is the goal of this new DNR policy that there is "no net loss" of wetlands?

For which types of applications will the DNR require compensatory mitigation?

DNR will not require that compensatory mitigation be part of any application. DNR may consider mitigation in some circumstances (for more information, see Understanding the NR 103 Decision Process), and sometimes the mitigation proposal may sway a state decision. If compensatory mitigation is part of the an approved application, permit requirements may be added to assure that the mitigation proposal is completed.

The only agency that could require mitigation is the US Army Corps of Engineers, through the Federal Section 404 permitting program [exit DNR]. The state mitigation policy clarifies when DNR can consider mitigation. The compensatory mitigation will either be part of an application because of a federal requirement or by choice of the applicant.

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With this program, is it true that an applicant can fill any wetland as long as he or she replaces it somewhere else?

No. Wisconsin wetland mitigation law is about allowing the DNR to consider a mitigation project in certain circumstances, generally when impacts to small, low quality wetlands are involved. Under the review process in the state wetland water quality standards, ch. NR 103 [PDF, exit DNR], the applicant is required to provide an analysis of practicable alternatives to avoid and minimize wetland impacts and evidence that there will not be significant adverse impacts to wetland functions and values as a result of an activity.

The key concept of NR 103 [PDF, exit DNR] is that alternatives to avoid and minimize wetland loss must be considered. The change due to the new mitigation policy is that in some circumstances (see sections C and D of Understanding the NR 103 Decision Process), the alternatives analysis may also weigh the potential for impacts to wetland functions and the potential value of a compensatory mitigation project. The final decision may be that avoiding the wetland loss is not the best choice, and in fact allowing the loss with a managed and protected wetland restoration as compensation is preferable. In other cases, the finding of the DNR may be that avoidance of wetland impacts is the best alternative.

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If the wetland proposed for filling is low quality, and an applicant offers mitigation, does the applicant only need to plan for a mitigation project that is for a low quality wetland?

No. Any compensatory mitigation that is part of an application will need to meet the rules set forth in the new NR 350 [PDF exit DNR]. That means that the quality of site selection and planning is the same, regardless of the character of the wetland that is being lost. This also means that exact replacement of the wetland functions and values is not required. NR 350 [PDF, exit DNR] encourages on-site and in-kind mitigation, but only when feasible and/or ecologically desirable. The goal of the program is not to replace every wetland that is permitted to be impacted.

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Will all small wetland losses be compensated for at mitigation banks?

No. The new code requires the applicant who is offering mitigation to first look on-site, near the location of wetland loss, for feasible and ecologically desirable mitigation projects. If there are not any viable on-site alternatives, then off-site mitigation can occur, which includes use of a bank. In many cases, banking may end up being the best location for compensation, especially for the projects with very small impacts in urban settings.

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Is the goal of this new DNR policy that there is "no net loss" of wetlands?

No. The policy does not use the term "no net loss". Unlike other mitigation programs around the country, the new DNR policy does not have as its goal to try to replace what is being lost due to permits. Simply, the new policy adds one more tool in DNR decision making. The policy allows for the best outcomes which may include allowing a wetland to be impacted or filled with compensation elsewhere. The bottom line reason for allowing the wetland loss, however, is not because we know the wetland is getting replaced. Activities that meet the standards in NR 103 are allowed to proceed.

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