The Wisconsin Department of Natural Resources (DNR) recently announced a new wetland mitigation program designed to protect the environment and help property owners use and develop their property. The new program, called the Wisconsin Wetland Restoration Trust Program, will provide an alternative to other forms of wetland mitigation so that property owners will now have three different wetland mitigation options to assist them with economic development opportunities that result in unavoidable wetland disturbances.

Overview of wetland mitigation 

Because wetlands play a vital role in our water ecosystems, property owners are generally prohibited from filling wetlands unless they first receive a permit from the DNR. 

The DNR has two types of wetland permits: general permits and individual permits. General permits are available for certain activities that meet certain general criteria. They often involve a more streamlined permitting process, but are available for smaller wetland disturbances, such as 0.23 acres or less. For larger wetland disturbances, a property owner is required to obtain a more extensive individual permit, which is tailored to each individual project and requires the property owner to perform mitigation to offset the damage to the wetland.

To obtain a permit, the property owner must demonstrate the following:

1. No other practicable alternatives for the proposed project exist.
2. The proposed project minimizes the impacts to the wetlands.
3. Any impacts to the wetlands are offset by mitigation. 

In the past, property owners had only two options for mitigation. They could (a) create or restore an existing wetland on the same or nearby property within a half mile of the wetland disturbance, or (b) buy credits from a DNR-approved wetland bank, which is a wetland created, restored or enhanced for the purpose of selling credits to compensate for wetland fills in other areas. Both of these options have significant challenges due to the complexity and expense of creating a wetland that functions property, the limited availability of other nearby land to create or restore a wetland, or the limited availability of wetland banking credits located within the same watershed as the adversely impacted wetland, which is generally required. 

New in-lieu fee program 

The new wetland mitigation option allows property owners to purchase credits directly from the DNR. The amount of credits needed for a wetland fill project will depend on the size of the fill, the location of the wetland fill, and the location of the wetland credits. Under the program, the property owner will have to purchase a minimum of 1.2 credits for every 1 acre of wetlands filled. This ratio could increase to 1.95 credits necessary for every 1 acre of wetlands filled, depending on a variety of factors including the wetland type, the location of the wetland fill, and where the credits are purchased from. 

The new wetland mitigation program divides the state into 12 service areas, based on the water basin in which they are located. The property owner will generally be required to purchase credits from the same service area in which the wetland fill is located but, under certain circumstances, will be allowed to purchase credits outside the service areas at a higher cost.

To get the program started, each service area will be initially allocated a specific number of credits, and each credit will have a different price. The number of credits ranges from 30 to 100, depending on the service area. More credits will be available over time upon release by the DNR and Army Corps from eligible wetland mitigation sites. The cost of the credits ranges in price from $58,000 per credit near Lake Superior to $61,000 in Southeastern Wisconsin. 

While the in-lieu fee program is an attractive option, property owners are not guaranteed to receive credits under the program. First, as previously indicated, the number of credits available is limited. Second, the DNR has the discretion to approve or deny the permit application if the agency does not feel the credits from the in-lieu fee program will adequately offset the impact to the damaged wetland.

With the new in-lieu fee program, Wisconsin joins 21 other states to offer this form of wetland mitigation. Hopefully this program will prove to be a useful tool to help property owners use and develop their property in watersheds, while preserving and enhancing the important role that wetlands play in protecting watersheds. 

For more information about the DNR’s new wetland mitigation program, visit dnr.wi.gov/topic/Wetlands/mitigation/WWCT.html.

Tom Larson is Vice President of Legal and Public Affairs for the WRA.