R 281.955 Mitigation banks; establishment.

Rule 5. (1) The establishment and use of a mitigation bank are voluntary. The permit applicant has the option of providing compensatory mitigation for a single permitted action at the time of permit issuance. A mitigation bank shall be established in accordance with the wetland mitigation banking rules in order for credits from the mitigation bank to be authorized by the department as compensatory mitigation for wetland losses authorized under the act. (2) A person who chooses to establish and operate a mitigation bank shall enter into a written mitigation banking agreement with the department before construction of the mitigation bank or any sale or use of credits from the bank. The agreement shall define the size of the bank, the ecological type of wetlands to be included, wetland functions to be provided, the area to be served by the mitigation bank, and the requirements for establishment, operation, and long-term maintenance by the bank sponsor. The bank sponsor shall provide the department with all of the information needed to prepare the agreement. A mitigation banking agreement shall include all of the following elements and provisions: (a) A legal identification of the bank sponsor. (b) The mitigation bank’s location and size, including a legal description of the property. (c) Ownership of the site and documentation that the bank sponsor is authorized to use the property. If the owner is not the bank sponsor, then the owner shall sign the mitigation banking agreement. (d) Bank goals and objectives and the geographic area to be served. The goal statement shall indicate the types of wetlands to be developed and the types of wetland losses for which the bank is to be used. (e) An analysis of the ability of the site to support a diverse wetland system. (f) Consistency with existing watershed or ecoregion management plans. (g) Long-term development trends in the area and their potential impact on the long-term viability of the wetland mitigation bank. (h) A description of baseline conditions at the proposed bank site, including delineation of all existing surface waters or wetlands. (i) The site development plan. (j) A long-term site management plan. If the person responsible for ongoing management of the site is not the bank sponsor, then the person shall sign the mitigation banking agreement. (k) The accounting procedures to be used to track the availability, sale, and use of mitigation credits and the procedures for notifying the department of the sale or use of credits. (l) Performance standards for determining mitigation bank success and certification of credits. (m) A monitoring plan to evaluate the achievement of performance standards and reporting protocol. (n) Provisions for financial assurances to be used to complete remedial action in the event of bank default or failure, and provisions for the release of financial assurances once an approved bank is determined by the department to be self-sustaining. (o) Provisions for the protection of the site in perpetuity, generally through a conservation easement or deed restriction. (p) Assumption of liability for construction and operation by the bank sponsor. (q) If the bank will also be used to meet mitigation requirements of other federal, state or local agencies, the agencies also need to sign the agreement. (3) Before submitting a mitigation banking proposal to the department, the bank sponsor shall notify all affected local units of government and adjacent property owners of the proposed wetland mitigation bank and shall take reasonable steps to address any objections to the project. The bank sponsor shall provide copies of any comments received and documentation of efforts to resolve local issues to the department with the mitigation banking proposal. (4) The bank sponsor shall obtain the necessary construction permits for the alteration of existing wetlands or surface waters and all other required federal, state, or local approvals before initiating wetland creation or restoration activities. The permit review criteria in the act will be applied in reviewing an application to construct a mitigation bank. (5) Nothing in these rules preempts the need to obtain local approval for construction of a wetland mitigation bank under local zoning ordinances or other local regulations.