Wetland Compensatory Mitigation: An Introduction

In May 2000, Governor Thompson signed into law 1999 WI Act 147 (PDF; Exit DNR), which allowed DNR to consider wetland compensatory mitigation in its wetland permitting decision process. Compensatory mitigation involves wetland restoration, enhancement, or creation to "compensate" for wetland loss either through projects completed by the applicant or through the purchase of credits from pre-approved mitigation banks.

The Wisconsin law recognized that other states and the federal government had made mistakes in previous mitigation programs and the Legislature set up boundaries to assure that Wisconsin could learn from the mistakes and build a fair and reasonable program. The failures of past federal mitigation policies were laid out in a January 2001 report of the National Research Council entitled Compensating for Wetland Losses under the Clean Water Act (Exit DNR).

The new Wisconsin regulations define the circumstances when DNR can consider a mitigation project as one of the alternatives for a project proposal. The goal of the program is that best overall environmental consequences result from the wetland regulatory process in Wisconsin. Revised NR 103 (PDF; Exit DNR) and NR 350 (PDF; Exit DNR), Wis. Adm. Code, went into effect on February 1, 2002.

Basic Concepts of the Wetland Mitigation Law and Rules

• Applicants should work with DNR staff early to determine requirements and likelihood for compliance.
• Compensatory mitigation involves wetland restoration to "compensate" for permitted wetland losses. Some "enhancement" of existing degraded wetlands may also be acceptable as mitigation.
• Compensatory mitigation is not appropriate for all applications.
• Applicants must always show that they have made reasonable attempts to avoid and minimize wetland impacts.
• When compensatory mitigation is part of an application, the applicant will need to follow detailed rules, requirements and a review process for the mitigation project that have been established to assure that these projects are carried out in a manner that has a high likelihood for success.

Administrative Codes

• Chapter NR 103, Wisconsin Administrative Code (PDF; Exit DNR)
• Chapter NR 350, Wisconsin Administrative Code (PDF; Exit DNR)

More Information

For more information regarding wetland compensatory mitigation, please contact:

Pat Trochlell
(608) 267-2453