siebert wetland mitigation talk

Rules forWetland Compensatory Mitigation in Wisconsin : 

Rules for Wetland Compensatory Mitigation in Wisconsin Presented by Dave Siebert DNR Bureau of Science Services

Outline of my talk: 

Outline of my talk Background on wetland regulations in Wisconsin and recent law changes Compensatory Mitigation defined New rules are in effect February 1, 2002 Requirements of the new NR 350 rules The revised state wetland regulatory decision process Questions and Answers

Wisconsin does not have a comprehensive state wetland protection law: 

Wisconsin does not have a comprehensive state wetland protection law Chapter 30 regulates activities on bed and banks of waters of the state, which can include wetlands Activities in shoreland wetlands regulated by local zoning Most wetland impacts regulated by the Federal Government under Section 404 of the Clean Water Act State has responsibility under Section 401 for water quality certification—NR 103 is the standards for decisions and NR 299 is the regulatory process for the decisions NR 103 mirrors the 404(b)1 Federal guidelines. Prior to 2002, NR 103 was silent on compensatory mitigation.

Recent state wetland law changes : 

Recent state wetland law changes Act 6 passed May 2001 in reaction to US Supreme Court decision (SWANCC) giving state authority over non-federal isolated wetlands. ACT 147 passed May 2000 giving DNR authority to consider compensatory mitigation and this is reflected in revised NR 103 and new NR 350

What do we mean by "wetland mitigation"?: 

What do we mean by "wetland mitigation"? Requirement in the federal wetland permit process since the early 90’s The federal process requires the applicant to follow a sequence-- avoid, minimize, then compensate Prior to Act 147, the state process under NR 103 mirrored the federal process with the exception of a compensation step

What is the wetland mitigation sequence?: 

What is the wetland mitigation sequence? 1. AVOID the impact by not taking a certain action or parts of an action. 2. MINIMIZE the impacts by altering the project. 3. COMPENSATION for the impact by replacing or supplying a substitute.

COMPENSATION= “COMPENSATORY MITIGATION”: 

COMPENSATION= “COMPENSATORY MITIGATION” The restoration, enhancement, or creation of wetlands expressly for the purpose of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

ACT 147 (The Wetland Mitigation Law) has 3 main aspects:: 

ACT 147 (The Wetland Mitigation Law) has 3 main aspects: 1. Required DNR to write rules for mitigation projects and banking— NR 350 2. Required DNR to write rules for a process for considering compensatory mitigation in permit decisions—revised NR 103 3. Granted the department authority to enforce state Water Quality Certification decisions.

NR 350-The Mitigation Rules: 

NR 350-The Mitigation Rules Addresses the requirements of 1999 WI Act 147 Based on a 1999 draft Guidelines for Wetland Compensatory Mitigation in Wisconsin-- a work effort of the mitigation advisory committee that has just been published www.dnr.state.wi.us/org/es/science/pubs/tr/specpubs.htm NR 350 and the Guidelines will be subject of a MOA between the state and federal agencies

Highlights of NR 350: 

Highlights of NR 350 Sequence of compensatory mitigation 1. Search On-Site first. On-site means within ½ Mile of Wetland Impact 2. Then Off-site. As near as possible to wetland impact, by doing any of the following: -Restore a wetland within same DNR Basin (“GMU”) and/or county -Buy from a bank within same DNR GMU and/or county -Use an approved “grandfathered” bank

Highlights of NR 350 (cont’d): 

Highlights of NR 350 (cont’d) Replacement Ratios Ratio is in terms of mitigation acres to acres of wetland loss Purpose of ratios is insurance of mitigation success and to account for temporal wetland function loss. Wisconsin took a simple approach to ratios The ratio is 1.5:1 in most cases 1:1 is possible if banking and not impacting certain wetland types listed in the code Our real goal is to have all mitigation sites be quality sites

Highlights of NR 350 (cont’d): 

Highlights of NR 350 (cont’d) Requirements for sound planning and design of compensation sites Goal is quality mitigation sites Restoration preferred over creation Replacement in kind (same type of wetland) preferred Short and long-term monitoring requirements Plans for long-term site management Financial assurances that the site will be constructed and maintained as approved Long-term protection using conservation easements

Highlights of NR 350 (cont’d): 

Highlights of NR 350 (cont’d) MITIGATION BANKING The concept: A “Bank Sponsor” develops a compensation site and enters a legal agreement with the agencies to sell “credits” to permittees who need mitigation. Mitigation Banking is occurring nationally and is also not new in Wisconsin. NR 350 includes: Approval process for banks Responsibilities of bank sponsors and the department Registry of approved banks

Wisconsin Mitigation Banks: 

Wisconsin Mitigation Banks DOT Bank in operation since 1993 with over 30 bank sites statewide Walkerwin Wis. Waterfowl Assn. Bank - one bank site in Columbia County for general use Dane County Bank - one bank site near Lodi for county and municipal use Northland Cranberry Bank - bank site in Wood County

Role of the bank sponsor: 

Role of the bank sponsor Proposes a bank and bank site Bank approved through signing a formal bank document with agencies Bank site and number of credits must be approved through agency involvement Financial assurances required Banker sets the price per credit Service area is GMU + county + 20 mile radius Annual reporting of sales of credits

Purchasing bank credits: 

Purchasing bank credits Applicant shows on-site is not possible Agencies determine acres of mitigation needed Applicant opts to not build its own mitigation site and looks for a bank that is listed on state registry Applicant contacts the bank and negotiates a price Applicant provides an affidavit of purchase of credits

Factoring mitigation in state wetland water quality certification decisions: 

Factoring mitigation in state wetland water quality certification decisions NR 350 tells us what is required when mitigation is part of an application Revisions to NR 103 address how and when DNR will consider mitigation in decisions

NR 103 Wetland Water Quality Standards began in 1991: 

NR 103 Wetland Water Quality Standards began in 1991 NR 103 is based on the federal 404 process NR 103 process used by DNR in its “Water Quality Certification” decisions involving both federal and non-federal wetland activities

Review of the Key Elements of NR 103 Decision Process: 

Review of the Key Elements of NR 103 Decision Process 1. Practicable Alternative Analysis Look at ways to avoid and minimize wetland impacts 2. Evaluate wetland functions and values Must conclude that project will not result in significant adverse impacts

Considering Compensatory Mitigation in DNR decisions: 

Considering Compensatory Mitigation in DNR decisions NR 103 process has not gone away NR 103 still involves practicable alternatives analysis for avoid and minimize In some cases, DNR can consider mitigation as one of the alternatives for a best overall environmental outcome of a decision

How is Compensatory Mitigation considered by DNR ?: 

How is Compensatory Mitigation considered by DNR ? In some cases it is considered at the same time as avoid and minimize alternatives In some cases it is only after a hard look at avoid and minimize alternatives In some cases it cannot be considered

Cases where mitigation is considered at the same time as avoid and minimize alternatives: 

Cases where mitigation is considered at the same time as avoid and minimize alternatives Wetland Impacts would be 0.1 Acre or Less or the Activity is Wetland Dependent All adversely impacted wetlands are < 1 Acre, and not in 100 Year Floodplain and not certain types In some cases AVOID may be the best environmental decision

“Certain Types” ??: 

“Certain Types” ?? Deep marsh. Ridge and swale complex. Wet prairie not dominated by reed canary grass (Phalaris arundinacea) to the exclusion of a significant population of native species. Ephemeral pond in a wooded setting. Sedge meadow or fresh wet meadow not dominated by reed canary grass (Phalaris arundinacea) to the exclusion of a significant population of native species and located south of highway 10. Bog located south of highway 10. Hardwood swamp located south of highway 10. Conifer swamp located south of highway 10. Cedar swamp located north of highway 10.

Cases where mitigation is considered AFTER analysis of avoid and minimize alternatives: 

Cases where mitigation is considered AFTER analysis of avoid and minimize alternatives This is the standard approach DNR can look at mitigation in weighing the overall impacts of the proposed project

Cases where mitigation cannot be considered by DNR: 

Cases where mitigation cannot be considered by DNR Project will affect an “Area of Special Natural Resource Interest” Cranberry Operations

Compensatory Mitigation Rules Timeline: 

Compensatory Mitigation Rules Timeline May 2000 Act 147 passes December 2000 Public Hearings on rules June 27, 2001 Natural Resources Board Approves August 2001 Assembly hearing on rules-- changes requested September 2001 Senate hearing on rules-- changes requested September 26, 2001 Rules with revisions adopted by NRB and sent back to Legislature November 2001 Additional Legislative action. November 29, 2001 Rules signed by DNR. February 1, 2002 Rules in effect

Misconceptions about Compensatory Mitigation in Wisconsin: 

Misconceptions about Compensatory Mitigation in Wisconsin The new state rules require compensatory mitigation for all unavoidable wetland loss. FALSE With the new rules, any wetland fill can occur as long as mitigation is included. FALSE The goal of the program is to make sure we replace every wetland filled. FALSE