2001 Wisconsin Act 6

(a) Normal farming, silviculture, or ranching activities.

(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.

(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.

(d) Maintenance of drainage ditches.

(e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:

1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

2. That the reach of the affected nonfederal wetland is not reduced.

3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.

(5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification requirement under sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:

(a) Impair the flow or circulation of any nonfederal wetland.

(b) Reduce the reach of any nonfederal wetland.

(6) Rules for exemptions. (a) The department shall promulgate rules to interpret and implement the provisions under subs. (4) and (5). In promulgating these rules, the department shall do all of the following:

1. Make the rules consistent with existing federal law.

2. Incorporate any applicable additional federal law or interpretation into the rules.

(b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.

(7) Rules prohibition; determinations of public safety. (a) The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if all of the following apply:

1. The wetland is less than one acre in size.

2. The wetland is not in an area of special natural resource interest.

3. The application for the water quality certification includes a copy of a determination that the discharge is necessary for public safety that is made under par. (b) or that is made in response to a request made under par. (bn).

(b) 1. A political subdivision shall make a determination as to whether a discharge into a nonfederal wetland within the boundaries of the political subdivision is necessary for public safety if requested to do so by an applicant for a water quality certification under this section. A state transportation agency shall make a determination as to whether a discharge into a nonfederal wetlands is necessary for public safety if requested to do so by an applicant for a water quality certification under this section.

2. Before a political subdivision or a state transportation agency makes any determination under subd. 1., it shall publish appropriate notice, as determined by the political subdivision or the state transportation agency, to the public that describes the request and that states that it will be making the determination. On or before the date of the publication of the notice, the political subdivision or state transportation agency shall mail or otherwise provide a written copy of the notice to the department. After publication of the notice, the governing body of the political subdivision or the state transportation agency may hold a public hearing to determine whether the discharge is necessary for public safety. Any public hearing held under this subdivision shall be held no later than 30 days after the applicant for the water quality certification made the request for the determination. The governing body of the political subdivision or the state transportation agency shall issue the determination in writing, and the determination shall include a statement of the grounds for making the determination.

3. The department or any person whose substantial interests are adversely affected by a determination issued under subd. 2. by a governing body of a political subdivision or by a state transportation agency may file for judicial review of the determination. Section 68.13 shall apply to the judicial review of a determination made by a political subdivision. Sections 227.52 to 227.58 shall apply to the judicial review of a determination made by a state transportation agency.

(bn) An applicant for a water quality certification may submit a request to a federal transportation agency for a determination as to whether a discharge into a nonfederal wetland is necessary for public safety.

(c) 1. Notwithstanding the fact that an applicant for a water quality certification under this section has received a determination that the discharge is necessary for public safety, the department may conduct an examination of the practicable alternatives to the proposed discharge that will not adversely affect the nonfederal wetland and that will not result in other significant adverse environmental consequences.

2. If the department decides under subd. 1. to conduct an examination, the department shall conduct the examination by first determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting the examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.

3. If the department determines that no practicable alternative exists after conducting the examination under subd 2., the department may proceed with the examination by determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is not located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting an examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.

4. If the department determines that no practicable alternative exists after conducting the examination under subds. 2. and 3., the department may require that the applicant implement a mitigation project under s. 281.37 (2).

(8) General water quality certifications. (a) In lieu of issuing individual water quality certifications under this section, the department may issue a general water quality certification for types of discharges that the department determines are similar in nature or for the purpose of simplifying the certification process if the discharges meet all of the following standards:

1. The discharges will cause only minimal adverse environmental effects, as determined by the department, if they are performed separately.

2. The cumulative adverse effect on the environment by the discharges will be minimal, as determined by the department.

(b) No general water quality certification issued under par. (a) may be effective for more than 5 years after the date of its issuance.

(bn) 1. The department shall issue general water quality certifications that are consistent with all of the general permits issued under 33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state.

2. If a general permit as specified in subd. 1. is amended or modified after January 8, 2001, the department shall incorporate the amendments or modifications into the general water quality certification issued under subd. 1. and may not otherwise amend or modify the general water quality certification.

(c) If the department determines that any of the discharges under a general water quality certification issued under par. (a) fails to meet any of the standards in par. (a), the department shall modify the certification so that the discharges meet all of the standards. If the department cannot modify the certification so that all of the standards will be met or if the department determines that the discharges subject to the general certification are more appropriately certified by using individual water quality certifications, the department shall revoke the general certification.

(d) Before issuing, modifying, or revoking a general water quality certification issued under par. (a), the department shall provide notice and a hearing under ss. 227.17 and 227.18.

(e) Subsection (2) (b) does not apply to general water quality certifications issued under this subsection.

(9) Inspection authority. (a) For purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

1. Enter and inspect any property on which is located a nonfederal wetland, or part of a nonfederal wetland, for which an application for a water quality certification has been submitted to the department.

2. Enter and inspect any property on which is located a nonfederal wetland to investigate a discharge of dredged or fill material that the department has reason to believe is in violation of this section.

3. Gain access to and inspect any records that the department requires a holder of a water quality certification to keep.

(am) An employee or representative of the department may not exercise the authority granted under par. (a) 1. before the date on which the application is submitted. If the application is denied or withdrawn, an employee or representative of the department may not exercise this authority after the date on which the application is denied or withdrawn. If the application is approved, an employee or representative of the department may not exercise this authority after the 30th day immediately following the completion date of the discharge of the dredged or fill material or the completion date of any conditions imposed under the water quality certification, whichever date is later.

(ar) 1. Before entering and inspecting a property under par. (a) 2., the department shall make at least one of the following requests:

a. A request for consent from the proprietor to enter and inspect the property.

b. A request, orally or in writing, that the proprietor provide an oral or written explanation, as elected by the department, concerning the activity that the department has reason to believe may constitute a violation of this section.

2. a. If the proprietor grants consent for the entry on, and the inspection of, the property to investigate a discharge as authorized under par. (a) 2., the department, upon reasonable advance notice, may enter and inspect the property in compliance with the terms of the consent granted by the proprietor.

b. If the proprietor refuses to grant consent for the entry on, or the inspection of, the property or if the proprietor's explanation or terms of consent are not acceptable to the department of natural resources, the department of natural resources may apply for, obtain, or execute a special inspection warrant under s. 66.0119 or refer the matter to the department of justice for enforcement under s. 299.95.

c. If the proprietor fails to respond to all requests made under subd. 1., an agent of the department of natural resources may apply for, obtain, and execute a special inspection warrant under s. 66.0119.

3. Any employee or representative of the department may make the requests under subd. 1. or enter or inspect property under subd. 2. a. only during reasonable hours.

(b) Any employee or representative of the department may exercise the authority granted under par. (a) 1. or 3. only during reasonable hours and only after the department has provided reasonable advance notice to the proprietor of the property involved or to the holder of the water quality certification.

(c) An employee or representative of the department may not gain access to or inspect any records as authorized under par. (a) 3. unless the holder of the water quality certification, or the holder's designee, is present or unless the holder of the certification waives this requirement.

(10) Other requirements. This section does not affect the authority of the department to do any of the following:

(a) Regulate the discharge of dredged or fill material in a nonfederal wetland under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.

(b) Issue a water quality certification under rules promulgated under this chapter to implement 33 USC 1341 (a).

6,11 Section 11. 281.69 (3) (b) 2. of the statutes is amended to read:

281.69 (3) (b) 2. The restoration of a wetland, as defined in s. 23.32 (1), if the restoration will protect or improve a lake's water quality or its natural ecosystem.

6,12 Section 12. 281.98 (1) of the statutes is amended to read:

281.98 (1) Except as provided in ss. 281.47 (1) (d), 281.75 (19), and 281.99 (2), any person who violates this chapter or any rule promulgated or any plan approval, license or, special order, or water quality certification issued under this chapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed, or enjoined, this penalty does not accrue.

6,13 Section 13. 299.95 of the statutes is amended to read:

299.95 Enforcement; duty of department of justice; expenses. The attorney general shall enforce chs. 281 to 285 and 289 to 295 and this chapter, except ss. 281.48, 285.57, 285.59, and 299.64, and all rules, special orders, licenses, plan approvals and, permits, and water quality certifications of the department, except those promulgated or issued under ss. 281.48, 285.57, 285.59, and 299.64 and except as provided in s. 285.86. The circuit court for Dane county or for any other county where a violation occurred in whole or in part has jurisdiction to enforce chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval or, permit, or certification by injunctional and other relief appropriate for enforcement. For purposes of this proceeding where chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval or, permit or certification prohibits in whole or in part any pollution, a violation is considered a public nuisance. The department of natural resources may enter into agreements with the department of justice to assist with the administration of chs. 281 to 285 and 289 to 295 and this chapter. Any funds paid to the department of justice under these agreements shall be credited to the appropriation account under s. 20.455 (1) (k).

6,14 Section 14. 814.04 (intro.) of the statutes is amended to read:

814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.30 (5m), 106.50 (6) (i) and (6m) (a), 115.80 (9), 281.36 (2) (b) 1., 769.313, 814.025, 814.245, 895.035 (4), 895.10 (3), 895.75 (3), 895.77 (2), 895.79 (3), 895.80 (3), 943.212 (2) (b), 943.245 (2) (d) and 943.51 (2) (b), when allowed costs shall be as follows:

6,15 Section 15. Nonstatutory provisions.

(1) Temporary process.

(a) In this subsection, "existing federal law or interpretation" has the meaning given in section 281.36 (1) (b) of the statutes, as created by this act.

(b) Except as provided in paragraph (c), no person may discharge dredged or fill material into a nonfederal wetland before the date on which the rules required under section 281.36 (6) of the statutes, as created by this act, are effective unless one of the following applies:

1. The person demonstrates to the satisfaction of the department of natural resources that the discharge would qualify for an exemption under existing federal law or interpretation.

2. The person receives a water quality certification issued under section 281.36 of the statutes, as created by this act.

3. The person demonstrates to the satisfaction of the department of natural resources that the discharge is exempt from the water quality standards for wetlands set under rules promulgated under section 281.15 of the statutes.

(c) This subsection does not apply after the date on which the rules required under section 281.36 (6) of the statutes, as created by this act, are effective.

(2) Rules deadline. The department of natural resources shall submit in proposed form the rules required under section 281.36 (6) of the statutes, as created by this act, to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 13th month beginning after the effective date of this subsection.

(3) Legislative council study. The joint legislative council is requested to establish a committee to study the regulation of wetlands.

6,16 Section 16. Effective dates. This act takes effect on the day after publication, except as follows:

(1) The treatment of section 23.321 (2) of the statutes takes effect on August 1, 2001, or on the day after publication, whichever is later.