R 281.959 Long-term management and protection of wetland mitigation banks.

Rule 9. (1) The bank sponsor shall assure, through legally binding instruments, including leases, contracts, deed restrictions, or conservation easements, that the mitigation bank shall be maintained in perpetuity. Restrictive covenants that provide for long-term management shall be included in any lease, sale, or other conversion and shall run with the property. (2) Long-term management is the responsibility of the mitigation bank sponsor and shall include site maintenance, monitoring of wetland conditions, remedial action needed to fully establish and maintain wetland characteristics in accordance with permit requirements, and notification of subsequent owners of limitations on the property. The bank sponsor shall submit a long term management plan as part of the mitigation banking agreement. Responsibility for the long-term management of a wetland mitigation bank may be transferred through the sale or lease of the property or through an agreement with another person if the department approves of the transfer and if the mitigation banking agreement is amended accordingly. (3) The bank sponsor may enter into a legal agreement with a state or local agency or a nonprofit resource management organization to manage the mitigation bank for a particular purpose as defined in the banking agreement. In this instance, the long-term management entity shall sign the banking agreement. (4) Before the use of any credits from an approved wetland mitigation bank, the bank sponsor shall provide financial assurances in the form of a performance bond, irrevocable letter of credit, or equivalent legal instrument that is sufficient to guarantee that mitigation bank establishment, monitoring, and, if necessary, remedial action will be carried out in accordance with the mitigation banking agreement. The mitigation banking agreement shall define the form and amount of the financial assurance to be provided and shall also define the temporal limits on the financial assurances tied to the achievement of performance standards that define the establishment of a fully functional, self-sustaining wetland. If the wetland by design is not self-sustaining, that is, if maintenance is required for dikes, dams, water control structures, or other components essential to the preservation of functional wetlands on the site, then the bank sponsor shall make financial provisions for perpetual management and maintenance. A state agency that sponsors a mitigation bank may enter into a formal interagency agreement with the department to guarantee long-term protection and management of the mitigation bank instead of providing financial assurances.