2001 - 2002 LEGISLATURE
April 18, 2001 - Introduced by Representatives Kedzie, Gronemus, Johnsrud, Ott,
Vrakas, Gunderson and
Jensen. Referred to Committee on Environment.
1An Act to repeal
23.321 (1) (c); to renumber
23.321 (title) and (1) (title), (a) and 2
(b), 23.321 (1) (d) to (f) and 23.321 (2); to renumber and amend
23.321 (2m) 3
to (5); to amend
281.69 (3) (b) 2., 281.98 (1) and 299.95; and to create
(21) and 281.36 of the statutes; relating to: water quality certification for
5nonfederal wetlands, granting rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
Under federal law, activities involving the discharge of dredged or fill material
into "navigable waters" must comply with certain guidelines contained in
regulations promulgated by the federal environmental protection agency (EPA) in
order for a discharge permit to be issued by the U.S. army corps of engineers (ACE).
Before ACE may issue a permit, the department of natural resources (DNR) must
determine that the project complies with state water quality standards, including
those for wetlands.
Federal law defines "navigable waters" to be "the waters of the United States."
ACE in turn has interpreted "the waters of the United States" to include
nonnavigable, isolated, intrastate waters if they serve as habitat for migratory birds
that cross state lines.
A recent U.S. supreme court decision, Solid Waste Agency of Northern Cook
County v. Army Corps of Engineers, 69 U.S.L.W. 4048 (2001), limited the types of
bodies of waters for which ACE discharge permits are required. The court held that
these nonnavigable, isolated, intrastate waters that serve as habitat for migratory
birds cannot be interpreted by ACE to be navigable waters and, therefore, no ACE
discharge permits are required to discharge dredged or fill material into these bodies
For discharges into wetlands that no longer are subject to the ACE permitting
process (nonfederal wetlands), this bill incorporates into state law the content of
some of the federal provisions governing the issuance of ACE discharge permits.
These provisions are in addition to any other requirements under current state law
that regulate discharges into wetlands. Under the bill, no one may discharge
dredged or fill material into a nonfederal wetland unless the discharge is authorized
by a certification from DNR that the discharge will meet all applicable state water
quality standards. The bill exempts from this certification process activities that are
exempt from ACE discharge permits under federal law. These exemptions include
normal farming, forestry, and ranching activities, maintenance and reconstruction
of damaged parts of structures that are in bodies of water, maintenance of drainage
ditches, and construction and maintenance of certain farm roads, forest roads, and
temporary mining roads if certain requirements are met. As under federal law, a
discharge that would be exempt loses its exemption under certain circumstances.
The exemption is lost if the discharge is incidental to an activity that brings the
nonfederal wetland into a use for which it was not previously used and if the activity
may impair the flow or circulation or reduce the reach of any nonfederal wetland.
Under the bill, DNR must promulgate rules to interpret and implement the
provisions under the bill that establish the exemptions and the provisions
concerning the loss of the exemptions. These rules must be consistent with
applicable federal law or interpretations of that law made by the federal government.
If federal law or the federal interpretations are subsequently modified, DNR must
incorporate the modifications into the rules. The bill also creates a temporary
process to be used between the date on which the bill becomes law and the date on
which the rules are promulgated for determining whether a discharge is exempt.
During that time, no person may discharge into a nonfederal wetland based on the
discharge being exempt unless the person demonstrates to DNR that the discharge
is exempt from current DNR rules governing discharges into wetlands or that the
discharge would be exempt under federal law or interpretations if the discharge were
subject to the ACE permitting process.
Parallel to the general permitting procedures under federal law, this bill
provides that DNR may issue general certifications for types of discharges that are
similar in nature. A general certification allows any person to carry out the type of
discharge subject to the general certification as opposed to an individual permit that
is issued to a specific person. The bill requires that DNR issue general water quality
certifications that are consistent with the general permits issued by ACE that
applied to nonfederal wetlands before the U.S. supreme court decision.
The bill also prohibits DNR from promulgating a rule that requires a person
who is applying for a water quality certification for a nonfederal wetland to submit
information concerning practicable alternatives to the discharge that exist or that
may be viable if the discharge is necessary to comply with a requirement imposed by
a federal, state, or local government as a condition for approval by the federal, state,
or local government of an activity that serves a public purpose or if the discharge is
necessary to insure public safety.
The bill contains provisions for identifying nonfederal wetlands. Under the bill,
if ACE has issued a determination as to whether a wetland is a nonfederal wetland,
DNR must adopt that determination. If ACE has not issued a determination, then
DNR makes the determination.
The bill authorizes DNR to inspect any property on which there is located a
nonfederal wetland beginning on the date on which an application for water quality
certification is submitted and ending on the 20th day immediately following
completion of the discharge subject to the certification, or, if the application is denied,
on the date of denial. DNR may also inspect any property to investigate a discharge
of dredged or fill material that DNR has probable cause to believe is in violation of
the statutes regulating nonfederal wetlands. The bill also authorizes DNR to gain
access to inspect any records that must be kept by a holder of a water quality
certification for a nonfederal wetland.
The bill also requires that certain procedures be used to delineate the
boundaries of nonfederal wetlands.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB322, s. 1
23.321 (title) and (1) (title), (a) and (b) of the statutes are 2
renumbered 281.37 (title) and (1) (title), (a) and (b).
AB322, s. 2
23.321 (1) (c) of the statutes is repealed.
AB322, s. 3
23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to 5
AB322, s. 5
23.321 (2m) to (5) of the statutes are renumbered 281.37 (2m) to (5), 9
and 281.37 (2m) (a) and (b) 3., as renumbered, are amended to read:
(a) 1. A person who is the holder of a permit or other approval that 11
authorizes a mitigation project shall grant a conservation easement under s. 700.40
to the department to ensure that a wetland that is being restored, enhanced,
created will not be destroyed or substantially degraded by any subsequent owner 3proprietor
of or holder of interest in the property on which the wetland is located. 4
The department shall revoke the permit or other approval if the holder of the permit 5
or other approval fails to take these measures.
2. A person who is restoring, enhancing,
or creating a wetland to provide 7
transferable credits as part of a wetlands mitigation bank shall grant a conservation 8
easement under s. 700.40 to the department, to ensure that the wetland will not be 9
destroyed or substantially degraded by any subsequent owner proprietor
of or holder 10
of interest in the property on which the wetland is located.
(b) 3. Any subsequent owner proprietor
of or holder of interest in the property 12
on which the wetland specified in subd. 1. is located did not contribute to the loss of 13
AB322, s. 6
281.01 (21) of the statutes is created to read:
"Wetland" has the meaning given in s. 23.32 (1).
AB322, s. 7
281.36 of the statutes is created to read:
17281.36 Water quality certification for nonfederal wetlands. (1) 18Definitions.
In this section:
(a) "Additional federal law or interpretation" means any of the following:
1. An amendment to 33 USC 1344
(f) that becomes effective after January 9, 21
2. Any other federal statutory provision that affects the exemptions under 33
(f) and that becomes effective after January 9, 2001.
3. A regulation, rule, memorandum of agreement, guidance letter, or other 25
provision established by a federal agency that is promulgated or adopted pursuant
to 33 USC 1344
(f) or that is used to interpret or implement 33 USC 1344
(f), that 2
applies to wetlands located in this state, and that becomes effective after January 3
4. A decision issued by a federal district or federal appellate court that affects 5
the application of a federal amendment or provision described in subds. 1. to 3., that 6
applies to wetlands located in this state, and that is issued after January 9, 2001.
(b) "Existing federal law or interpretation" means any of the following:
1. 33 USC 1344
(f), as amended to January 8, 2001.
2. A regulation, rule, memorandum of agreement, guidance letter, or other 10
provision established by a federal agency that is promulgated or adopted pursuant 11
to 33 USC 1344
(f) or that is used to interpret or implement 33 USC 1344
(f), that 12
applies to wetlands located in this state, and that is in effect on January 8, 2001.
3. A decision issued by a federal district or federal appellate court that affects 14
the application of a federal amendment or provision described in subds. 1. and 2., 15
that applies to wetlands located in this state, and that is issued on or before January 16
(bn) "Local governmental unit" means a city, village, town, county, or special 18
purpose district; and agency or corporation of a city, village, town, county, or special 19
purpose district; or a combination or subunit of any of the foregoing.
(c) "Nonfederal wetland" means a wetland that is identified as such under sub. 21
(d) "Water quality standards" means water quality standards set under rules 23
promulgated by the department under s. 281.15.
24(1m) Determination of nonfederal wetlands.
(a) A wetland is identified as 25
a nonfederal wetland if either of the following applies:
1. Any discharges of dredged or fill material into the wetland are determined 2
not to be subject to regulation under 33 USC 1344
due to the decision in Solid Waste 3
Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. 4
Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency 5
or by a federal district or federal appellate court that applies to wetlands located in 6
2. The wetland is determined to be a nonnavigable, intrastate, and isolated 8
wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. 9
Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent 10
interpretations of that decision by a federal agency or by a federal district or federal 11
appellate court that applies to wetlands located in this state.
(b) For the purpose of identifying wetlands under par. (a):
1. If the U.S. army corps of engineers issues a determination as to whether a 14
wetland is a nonfederal wetland, the department shall adopt that determination.
2. If the U.S. army corps of engineers does not issue a determination as to 16
whether a wetland is a nonfederal wetland, the department shall determine whether 17
the wetland is a nonfederal wetland.