DEPARTMENT OF ENVIRONMENTAL QUALITY

                           LAND AND WATER MANAGEMENT

                          WETLAND MITIGATION BANKING


These rules take effect 15 days after filing with the Secretary of State  (By 
authority conferred on the department of  environmental  quality  by  section 
30319 of Act No. 451 of the Public Acts of 1994, as amended, being §324.30319 
of the Michigan Compiled Laws)


R 281.951  Mitigation banking definitions.
  Rule 1.  As used in the wetland mitigation banking rules:
  (a) "Act" means Act No. 451 of the Public Acts of 1994, as  amended,  being 
§324.101 et seq. of the Michigan Compiled Laws.
  (b) "Bank sponsor" means a person who independently or in cooperation  with 
another person is responsible for the establishment, operation, and long-term 
management of a wetland mitigation bank.
  (c)  "Ecoregion"  means  a  geographic  region  of  relatively   homogenous 
ecological systems.  For the  purposes  of  the  wetland  mitigation  banking 
rules, the mapped sub-subsections found in the publication entitled "Regional 
Landscape Ecosystems  of  Michigan,  Minnesota,  and  Wisconsin,"  Dennis  A. 
Albert,  1994,  north  central  forest  experiment  station,  United   States 
department of agriculture, shall be used to identify ecoregion boundaries.
  (d) "Department" means the department of environmental quality.
  (e) "In-kind mitigation" means  replacement  of  unavoidably  lost  wetland 
resources with created, restored, or, in exceptional circumstances, preserved 
wetlands of a similar physical/biological type, with the goal of replacing as 
fully as possible the functions of the lost wetland.
  (f) "Mitigation bank" means a site where wetlands  are  restored,  created, 
or, in exceptional circumstances, preserved  expressly  for  the  purpose  of 
providing compensatory mitigation in accordance with the  provisions  of  the 
act in advance of authorized, unavoidable impacts to wetlands.
  (g) "Mitigation  banking"  means  the  process  of  restoring  or  creating 
self-sustaining  functioning  wetlands,  or,  in  exceptional  circumstances, 
preserving high-quality and threatened wetlands,  as  prior  replacement  for 
wetlands that are expected to be unavoidably impacted by development within a 
watershed or ecoregion.
  (h) "Mitigation banking agreement" means a formal written agreement between 
the bank sponsor and the department of environmental quality that  identifies 
all relevant establishment, operation, and  management  considerations  of  a 
wetland mitigation bank. 
  (i) "Mitigation credit" means a unit of value  generally  equivalent  to  1 
acre of created or restored functioning wetland that may be bought  and  sold 
on the open market.
  (j) "Out-of-kind mitigation" means  the  replacement  of  unavoidably  lost 
wetland resources with created, restored, or, in  exceptional  circumstances, 
preserved wetlands that are physically or  biologically  different  than  the 
wetlands  that  were  lost.   Out-of-kind  mitigation  may  result   in   the 
replacement of different wetland functions than the functions that were lost.
  (k) "Service area" means an area in which a bank can reasonably be expected 
to provide appropriate compensatory mitigation for impacts to wetlands.   The 
service area will be defined on a watershed or ecoregion basis.
  (l) "Unavoidably lost" means a wetland impact which has  been  approved  by 
the department in accordance with permit review criteria specified by the act.
  (m) "Watershed" means a drainage  area  within  which  the  replacement  of 
certain wetland functions, including hydrologic, water quality,  and  aquatic 
habitat functions, may be  authorized  by  the  use  of  a  mitigation  bank. 
Mitigation bank watersheds are illustrated in figure 1 in R 281.961.
  (n) "Wetland creation" means the physical and biological establishment of a 
wetland where a wetland did not formerly exist.
  (o)  "Wetland  function"  means  the  physical,  chemical,  or   biological 
processes which provide benefits to the public and which  are  recognized  by 
the Michigan legislature in section 30302(1)(b) of the act.
  (p) "Wetland preservation" means the protection of an ecologically critical 
wetland in perpetuity through the implementation  of  appropriate  legal  and 
physical mechanisms.
  (q)  "Wetland   restoration"   means   the   reestablishment   of   wetland 
characteristics and functions at a site  where  they  have  ceased  to  exist 
through the replacement of wetland hydrology, vegetation, or soils.

  History:  1997 AACS.


R 281.952  Purpose.
  Rule 2.  (1)  The purpose of the wetland mitigation  banking  rules  is  to 
provide for the statewide establishment and operation of mitigation banks  as 
an alternative wetland mitigation option that will protect  and  enhance  the 
wetland resources of the state while expediting the regulatory process.
  (2) Mitigation banking may benefit the state's wetland resources as follows:
  (a) By providing for the establishment of replacement wetlands  in  advance 
of wetland losses.
  (b) By consolidating small wetland mitigation areas at a single location in 
a manner that enhances the integrity of the wetland ecosystem.
  (c) By providing for improved  design  of  mitigation  sites  through  more 
efficient use of technical resources.
  (d) By providing for and encouraging the integration of wetland creation or 
restoration  for  purposes  of  compensatory   mitigation   with   watershed, 
ecoregion, or community resource planning.
  (3) The use of mitigation banking may benefit a wetland permit applicant as 
follows:
  (a) By reducing the total permit processing time.
  (b) By reducing the cost of compensatory mitigation due to the  economy  of 
scale associated with the consolidation of individual mitigation projects.
  (c) By increasing the predictability of mitigation costs.
  (d) By providing increased certainty as  to  the  availability  of  wetland 
mitigation sites.
  (e) By facilitating compliance with the mitigation requirements of the act.

  History:  1997 AACS.


R 281.953  Applicability.
  Rule 3. (1)  Any person may establish a mitigation bank and may buy,  sell, 
or use  mitigation  credits  as  approved  by  the  department  to  meet  the 
requirements of the act.
  (2) The department may authorize  the  use  of  credits  from  an  approved 
mitigation  bank  to  satisfy  all  or  a  part  of  the  wetland  mitigation 
requirements associated  with  any  permit  application  in  accordance  with 
applicable statutory criteria.
  (3) The department may authorize the use of  credits  from  an  established 
mitigation bank only to offset the unavoidable loss of wetlands  as  approved 
in accordance with the act.  Before approving the use of a  mitigation  bank, 
the department shall determine that the applicant has taken all feasible  and 
prudent steps to avoid the  loss  of  wetland  resources  and  has  used  all 
practical means to minimize impacts to wetlands.
The establishment of, or purchase of, credits from a mitigation bank does not 
eliminate the need to comply with the permit review criteria  established  in 
the act.
  (4) Site-specific functions shall be replaced on site where  practical  and 
where  the  department   has   determined   that   on-site   replacement   is 
environmentally preferable.  In these instances, use of a mitigation bank  is 
not appropriate.

  History:  1997 AACS.


R 281.954  Mitigation banks generally.
  Rule 4.  (1)  A mitigation bank is a  site  where  wetlands  are  restored, 
created, or,  in  exceptional  circumstances,  preserved  expressly  for  the 
purpose of providing compensatory mitigation in advance  of  the  unavoidable 
loss of  wetlands  authorized  by  the  act.   A  mitigation  bank  shall  be 
maintained in perpetuity.
  (2) The objective of mitigation banking is to provide for  the  replacement 
of chemical, physical, and biological wetland functions that are  lost  as  a 
result of authorized impacts.  To the extent possible, the bank shall provide 
multiple  functions.   Single  function,  low-quality   wetlands,   such   as 
wastewater ponds, will not qualify as mitigation sites.
The wetlands in a mitigation bank are quantified as mitigation  credits  that 
are available for use by the bank sponsor or other persons to compensate  for 
adverse impacts.
  (3) The number of credits in a mitigation bank will normally  be  based  on 
the acres of created and restored wetland in the bank after monitoring by the 
bank sponsor demonstrates that wetland functions have been established.
  (4) In exceptional circumstances,  the  preservation  of  certain  existing 
wetlands may also contribute to the number of mitigation credits.   Not  more 
than 15% of the total wetland acreage in any mitigation bank shall be for the 
preservation of existing wetlands.  Mitigation credit for preserved  wetlands 
shall only be given if the department determines that all  of  the  following 
provisions apply:
  (a) The preserved  wetlands  perform  exceptional  physical  or  biological 
functions that are essential to the preservation of the natural resources  of 
the state or the preserved wetlands are an ecological type that  is  rare  or 
endangered.
  (b) The preserved wetlands are under  a  demonstrable  threat  of  loss  or 
substantial degradation due to  human  activities  that  are  not  under  the 
control of the bank sponsor and that are not otherwise  restricted  by  state 
law.
  (c)  Inclusion  of  the  preserved  wetlands  in  a  mitigation  bank   and 
implementation of other actions identified in the mitigation bank  plan  will 
serve to protect functions associated with the wetlands that would  otherwise 
be lost.  Mitigation credit for preserved  wetlands  meeting  these  criteria 
will be given at a rate of 0.1 (one tenth) credit for each acre of  preserved 
wetland.
  (5) A mitigation bank shall generally be planned and managed in a watershed 
or ecoregion context, or both and shall include  restored,  created,  or,  in 
exceptional circumstances, preserved wetlands  that  will  provide  functions 
which meet the needs of the watershed or ecoregion, or both.
  (6) Mitigation banks may be located on either public or private lands.
However, a mitigation bank shall be established on public lands  only  if  it 
furthers established management objectives that  have  been  defined  by  the 
agency responsible for managing the public land, and with the approval of the 
agency responsible for management of that land.
  (7) A wetland mitigation bank shall provide a minimum of 10  acres  of  new 
wetland.  The new wetland may consist of multiple sites that  are  a  minimum 
size of 1 acre  each  and  shall  be  administered  under  a  single  banking 
agreement.

  History:  1997 AACS.


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.

  History:  1997 AACS.


R 281.956  Mitigation bank credits; use standards.
  Rule 6.  (1)  In determining whether credits from a  particular  mitigation 
bank may be used to meet the requirements of the act,  the  department  shall 
consider all of the following factors:
  (a) The location of the mitigation bank relative to the  permitted  wetland 
impact.
  (b) The wetland types represented in the bank.
  (c) The sustainable wetland functions provided by the bank.
  (d) The area of wetland provided as mitigation relative to the impact.
  (2) In-kind mitigation is required unless the department determines that it 
is not practical or  that  in-kind  mitigation  is  not  essential  and  that 
out-of-kind wetland mitigation provides a  greater  benefit  to  the  wetland 
resources  of  the  state.   The  department  may  consider  the  use  of  an 
out-of-kind wetland mitigation bank based on  1  or  more  of  the  following 
criteria:
  (a) The types of wetlands restored or created  in  the  wetland  mitigation 
bank help to restore  the  historic  balance  of  wetland  types  within  the 
watershed or ecoregion.
  (b) The mitigation bank provides particular  wetland  functions  that  meet 
defined resource management needs and goals  articulated  in  an  established 
watershed or ecosystem plan and will contribute to the overall health of  the 
ecosystem.
  (c) The mitigation bank supports a diverse  wetland  complex  that  offsets 
cumulative primary and secondary impacts within the watershed.
  (d) The mitigation credits will be used to offset the loss of wetland types 
that cannot readily be recreated in a manner  that  is  consistent  with  the 
permit review criteria of the act.
  (3) The service area of a mitigation  bank  shall  be  appropriate  to  the 
functions provided.  The department shall use all of the  following  criteria 
in defining the service area of a mitigation bank:
  (a) Functions that are dependent upon the location of the  wetland  in  the 
subwatershed shall be replaced by mitigation credits from  a  bank  or  other 
site within the same subwatershed.
  (b) Wetland functions which are watershed  dependent,  but  which  are  not 
specific to a subwatershed, will be replaced in the  same  watershed  as  the 
impact.
  (c) Wetland functions,  such  as  migratory  bird  habitat,  that  are  not 
dependent upon location in the watershed shall be replaced either within  the 
same watershed or within the same ecoregion.
  (d) The mitigation required by an individual permit may be  split  so  that 
location-specific wetland functions are replaced on site or within  the  same 
subwatershed area, while other functions are replaced through a bank that has 
a larger defined service area.
  (4) When credits from a mitigation bank  are  used,  the  mitigation  ratio 
shall be determined based on the nature of  the  permitted  wetland  loss  in 
accordance with R 281.925. 

  History:  1997 AACS.


R 281.957  Certification and approval of mitigation credits.
  Rule 7.  (1) Before use of  mitigation  credits,  the  bank  sponsor  shall 
assess the establishment of wetlands in accordance with a monitoring  program 
defined in the mitigation banking agreement and shall certify the  extent  to 
which performance standards defined in the mitigation banking agreement  have 
been met.  The design of the monitoring program shall measure the achievement 
of performance standards associated with the  targeted  wetland  functions.   
Monitoring shall begin at least 1 year before use of credits.   Once  credits 
in the bank are used, monitoring shall continue  on  an  annual  basis  until 
performance standards for the full  establishment  of  the  bank  are  met.   
Monitoring parameters shall include all of the following:
  (a) Hydrology.
  (b) Plant community structure.
  (c) Animal community structure.
  (d) Design acreage.
  (e) Other measures as defined in the mitigation banking agreement.
  (2) The bank sponsor shall certify that appropriate wetland functions  have 
been established in the mitigation bank pursuant to the banking agreement  by 
submitting a report to the department that  includes  all  of  the  following 
information:
  (a) All data collected during the monitoring program.
  (b) An evaluation of the status of  wetlands  in  the  mitigation  bank  as 
compared to design criteria.
  (c) A list of the  number  and  type  of  credits  for  which  approval  is 
requested.
  (3) The department shall approve or disapprove  the  certification  of  the 
bank sponsor within  60  days  of  receipt  of  the  sponsor's  report.   The 
department may determine that mitigation credits cannot be  approved  because 
the wetlands have not achieved design wetland functions or because of a  lack 
of adequate information to  document  wetland  functions.   The  department's 
evaluation may include an on-site inspection of the mitigation bank  site  if 
deemed necessary.  If the department determines that wetland conditions  have 
been established in accordance with the mitigation  banking  agreement,  then 
the department shall issue a letter to the bank sponsor approving the  number 
and type of wetland credits that are available for use  and  shall  list  the 
approved credits in a mitigation bank registry as required in R 281.958.
  (4) The department shall not authorize the use of credits from a mitigation 
bank in advance of initial restoration or creation of wetlands  in  the  bank 
except as provided in R 281.960.  The department may  authorize  the  use  of 
approved credits from the mitigation bank in accordance  with  the  following 
schedule:
  (a) The use of 50% of approved mitigation  bank  credits  will  be  allowed 
after the department determines  that  construction  has  been  completed  in 
accordance with plans and specifications included in  the  banking  agreement 
and design hydrology has been achieved and maintained for at least 1 calendar 
year.
  (b) The use of an additional 25% of total credits will be allowed when  the 
mitigation bank wetland plant community achieves 50% of design cover based on 
performance standards defined in the mitigation banking agreement.
  (c) The use of the final 25% of credits will be allowed  when  the  created 
and restored wetlands in the bank are fully functional and  meet  performance 
standards defined in the mitigation banking agreement.
  (5) If the department agrees  to  inclusion  of  preserved  wetlands  in  a 
mitigation bank in accordance with R 281.954, then  the  bank  sponsor  shall 
provide  documentation  of  permanent  protection  of  the  wetlands  through 
appropriate legal instruments and shall complete and document all other steps 
defined in the mitigation banking agreement needed to permanently protect the 
preserved wetland area before department approval of the use of the credits.
  (6) The department may audit a mitigation bank at any time to evaluate  the 
status of the wetlands in the bank and to confirm the  number  of  mitigation 
credits available.  The department may inspect the physical premises  of  the 
bank at all reasonable times.

  History:  1997 AACS.


R 281.958  Registry of mitigation bank credits.
  Rule 8.  (1)  The department  shall  maintain  a  registry  of  established 
wetland mitigation  banks  and  approved  mitigation  credits  to  track  the 
generation and use of credits  and  to  provide  information  to  the  public 
regarding the availability of credits.  The mitigation  bank  registry  shall 
include all of the following information:
  (a) A general description of the bank.
  (b) The total number of credits (acres) in the bank, the number  previously 
used to meet mitigation requirements, the number offered for sale by the bank 
sponsor, and the number sold.
  (c) The number of acres of each major ecological type of wetland.
  (d) The defined service area of the bank.
  (e) The name and address of the bank sponsor.
  (f) The date of bank establishment by mitigation banking agreement, and the 
date of approval of mitigation credits.
  (g) An identification code for each approved mitigation bank.
  (2) Within 60 days of the sale of approved  mitigation  bank  credits,  the 
bank sponsor shall report the sale and the  per  credit  sale  price  to  the 
department.  The sale price shall not be included in the registry.
  (3) The department shall list approved mitigation credits in the mitigation 
bank registry.  Inclusion of uplands in mitigation bank plans  is  encouraged 
and may be essential to fully meet functional goals,  however,  uplands  will 
not be included in the mitigation credits available in the  bank,  except  as 
provided in R 281.960.
  (4) All information contained in the registry shall be readily available to 
the public.

  History:  1997 AACS.


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.

  History:  1997 AACS.


R 281.960 State priority wetland restoration areas.
  Rule 10.  (1)  The department may, in cooperation with  the  department  of 
natural resources, designate priority  wetland  restoration  areas  in  large 
former wetland complexes which have been  impacted  by  significant  historic 
loss or  degradation  of  wetlands  and  which  have  a  high  potential  for 
successful wetland restoration.   Areas  so  designated  may  include  either 
public or private lands, but must have the potential to  provide  the  public 
with vital wetland functions  after  ecologically  sensitive  restoration  of 
wetland areas.
  (2) The department shall develop a  management  plan  for  each  designated 
priority wetland restoration area and shall  consider  the  concerns  of  the 
department of natural resources and the potential  of  the  area  to  provide 
critical wetland for any of the following:
  (a) Habitat.
  (b) Wildlife and fish production.
  (c) Flood control.
  (d) Water quality protection.
  (e) Groundwater recharge.
  (f) Recreation.
Management plans which impact lands administered by the department of natural 
resources are subject to their approval.
  (3) The department may enter into partnerships with other  state  agencies, 
local units of government, or private parties to promote the restoration  and 
protection  of  wetlands  within  a  priority  wetland  restoration  area  in 
accordance with the management plan.  The department may provide  funding  or 
in-kind services to the partnership to support the management plan.
  (4) Any person may establish a wetland mitigation bank  within  a  priority 
wetland restoration area.  All of the  general  requirements  that  apply  to 
mitigation banks apply to mitigation banks  established  in  priority  areas, 
except for the special provisions specified in subrules (5) and (6)  of  this 
rule.  The department may assist in the establishment of a wetland mitigation 
bank by identifying state lands suitable for use in the bank or by  providing 
technical assistance.
  (5) The department may  establish  a  mitigation  bank  within  a  priority 
wetland restoration area if a mitigation bank is  not  established  by  other 
parties within 1 year after designation of the priority  wetland  restoration 
area or if existing  banks  do  not  provide  adequate  capacity  or  wetland 
functions. 
  (6) A  wetland  mitigation  bank  established  within  a  priority  wetland 
restoration area may utilize any  or  all  of  the  following  incentives  if 
approved by the department in the mitigation banking agreement:
  (a)  Up  to  15%  of  planned  wetland  credits  may  be  used  before  the 
establishment of wetland conditions if the department has approved  the  site 
plan and signed the  mitigation  banking  agreement,  the  bank  sponsor  has 
obtained all state and local permits and approvals required for  construction 
of the mitigation bank, and the bank sponsor has provided adequate  financial 
assurances to ensure the timely establishment of wetland functions.
  (b) The department may approve partial mitigation credit for uplands within 
the priority wetland restoration area mitigation bank that are vital  to  the 
successful functioning of wetlands in the mitigation bank.  The condition  of 
these uplands shall be protected under a conservation easement or  equivalent 
instrument.  The  mitigation  banking  agreement  shall  specify  the  credit 
received for uplands based on  the  extent  to  which  the  uplands  directly 
enhance or maintain the integrity of the aquatic ecosystem, but  in  no  case 
shall more than 0.5 credits be authorized for each acre of upland.
Not more than 10% of the total acreage for which mitigation credit  is  given 
in a mitigation bank shall be upland.
  (c) The department may approve mitigation credit for  the  preservation  of 
certain existing  wetlands  which  provide  exceptional  functions  or  which 
represent rare wetland types, such as lakeplain wet prairie.  Not  more  than 
25% of the wetland acreage approved in a priority  wetland  restoration  area 
mitigation bank shall be for the preservation of existing wetlands.
The incentives specified in this subrule do not apply to any other mitigation 
bank.

  History: 1997 AACS.


R 281.961 Figure 1; Michigan wetland mitigation banking watersheds.
  Rule 11.  Figure 1 reads as follows:
      **** For Map see attached file labeled "Figures" ****

  History: 1997 AACS.