2001 - 2002 LEGISLATURE
February 20, 2001 - Introduced by Senator Shibilski. Referred to Committee on
...; relating to: discharges of dredged or fill material into nonfederal
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 wetlands 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 wetlands that serve as habitat for migratory
birds cannot be interpreted by ACE to be navigable waters and that, therefore, no
ACE discharge permits are required to discharge dredged or fill material into these
This bill places a ban on any person discharging dredged or fill material into
wetlands for which ACE discharge permits are no longer required.
For further information see the state 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:
SB54, s. 1
281.36 of the statutes is created to read:
2281.36 Prohibitions against discharges into nonfederal wetlands. (1) 3Definitions.
In this section:
(a) "Nonfederal wetland" means a wetland to which the federal permitting 5
process under 33 USC 1344
does not apply due to the decision in Solid Waste Agency 6
of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 7
9, 2001) but to which such permitting process did apply on January 8, 2001.
(b) "Wetland" has the meaning given in s. 23.32 (1).
No person may discharge dredged or fill material into a 10
This section does not apply on the day after the effective 12
date of legislation enacted by the state legislature that subjects discharges of 13
dredged or fill material into nonfederal wetlands to a permitting process that 14
conforms to the federal permitting process under 33 USC 1344
that applied to 15
nonfederal wetlands on January 8, 2001. The secretary of natural resources shall 16
determine when such legislation has been enacted and shall certify to the revisor of 17
statutes the effective date of the legislation.