2011 Wisconsin Act 118

1. Requiring that the applicant for the permit provide by publication, mailing, or other distribution one or more of the notices.

2. Requiring that the applicant for the permit pay for the publication, mailing, or any other distribution costs of providing one or more of the notices.

118,86m Section 86m. 281.36 (3q) of the statutes is created to read:

281.36 (3q) Administrative and judicial review. (a) Definition. In this subsection, "applicant" means any person applying for a wetland individual permit under this section or any person who has been issued such a permit under this section.

(b) Request for administrative review. Any interested person may file a petition with the department for administrative review within 30 days after any of the following decisions given by the department:

1. The issuance, denial, or modification of any wetland individual permit issued under this section.

2. The imposition of, or failure to impose, a condition on any wetland individual permit issued under this section.

(c) Content of the petition. If the petitioner is not the applicant, the petition shall describe the petitioner's objection to the wetland individual permit and shall contain all of the following:

1. A description of the objection that is sufficiently specific to allow the department to determine which provisions of this section may be violated if the proposed discharge under the wetland individual permit is allowed to proceed.

2. A description of the facts supporting the petition that is sufficiently specific to determine how the petitioner believes the discharge, as proposed, may result in a violation of the provisions of this section.

3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner's objection.

(d) Stays. 1. The discharge shall be stayed pending an administrative hearing under this subsection if the petition contains a request for the stay showing that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment.

2. If a stay is requested under subd. 1., the stay shall be in effect until either the department denies the request for an administrative hearing or the hearing examiner determines that the stay is not necessary.

(e) Filings. The petitioner shall file a copy of the petition with the department. If the petitioner is not the applicant, the petitioner shall simultaneously provide a copy of the petition to the applicant. The applicant may file a response to the petition with the department. If the applicant files a response under this paragraph, it shall be filed within 15 days after the petition is filed.

(f) Action on petition. The department shall grant or deny the petition within 30 days after the petition is filed. The failure of the department to dispose of the petition within this 30-day period is a denial. The department shall deny the petition if any of the following applies:

1. The petitioner is not the applicant, and the petition does not comply with the requirements of par. (c).

2. The objection contained in the petition is not substantive. The department shall determine that an objection is substantive if the supporting facts contained in the objection appear to be substantially true and raise reasonable grounds to believe that the provisions of this section may be violated if the activity or project is undertaken.

3. If the department denies the petition, the department shall send the petitioner the denial in writing, stating the reasons for the denial.

4. If the department grants a petition under this subsection, the department shall refer the matter to the division of hearings and appeals in the department of administration within 15 days after granting the petition unless the petitioner and the applicant agree to an extension.

(g) Administrative hearing. 1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.

2. If a stay under par. (d) 1. is in effect, the hearing examiner shall, within 30 days after receipt of the referral under par. (f) 4., determine whether continuation of the stay is necessary to prevent significant adverse impacts or irreversible harm to the environment pending completion of the administrative hearing. The hearing examiner shall make the determination based on the request under par. (d) 1., any response from the applicant under par. (e), and any testimony at a public hearing or any public comments. The determination shall be made without a hearing.

3. An administrative hearing under this subsection shall be completed within 90 days after receipt of the referral of the petition under par. (f) 4., unless all parties agree to an extension of that period. In addition, a hearing examiner may grant a one-time extension for the completion of the hearing of up to 60 days on the motion of any party and a showing of good cause demonstrating extraordinary circumstances justifying an extension.

4. Notwithstanding s. 227.44 (1), the department shall provide a notice of the administrative hearing at least 30 days before the date of the hearing to all of the following:

a. The applicant.

b. Each petitioner, if other than the applicant.

c. Any other persons required to receive notice as provided under sub. (3p).

5. In an administrative hearing under this subsection, the petitioner shall proceed first with the presentation of evidence and shall have the burden of proof.

(h) Judicial review. 1. Any person whose substantial interest is affected by a decision of the department under par. (b) 1. or 2. may commence an action in circuit court to review that decision.

2. Any party aggrieved by a decision of the hearing examiner under par. (g) may commence an action in circuit court to review that decision.

118,87 Section 87. 281.36 (3r) of the statutes is created to read:

281.36 (3r) Mitigation; in lieu fee subprogram. (a) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows mitigation to be accomplished by any of the following methods:

1. Purchasing credits from a mitigation bank located in this state.

2. Participating in the in lieu fee subprogram, if such a subprogram is established under par. (e).

3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.

(b) Under the mitigation program, mitigation as specified in par. (a) 1. and participation in the in lieu fee subprogram, if established under par. (a) 2. shall be the preferred types of mitigation.

(c) The department shall establish a system of service areas for the mitigation banks under the mitigation program that is geographically based on the locations of the major watersheds in the state. The system shall be consistent with federal regulations.

(cm) Before entering into an agreement with a sponsor of a mitigation bank to establish such a bank or before otherwise approving a mitigation bank, the department shall provide written notice that a mitigation bank may be established. The notice shall be given to each city, village, town, and county in which each proposed mitigation bank site will be located. Each city, village, town, and county receiving the notice shall be given an opportunity to submit comments regarding the establishment of the mitigation bank. The notice shall contain all of the following information:

1. The name of the sponsor of the proposed mitigation bank.

2. A brief description of the mitigation bank and all of its bank sites.

3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.

4. An address to which any comments shall be submitted.

(d) 1. The department shall establish under the mitigation program mitigation ratios that are consistent, to the greatest extent possible, with the federal regulations that apply to mitigation and mitigation banks but, unless subd. 2. applies, the minimum ratio shall be at least 1.2 acres for each acre affected by the discharge.

2. For mitigation that occurs within the same watershed in which the discharge is located or within one-half mile of the site of the discharge, the ratio established by the department shall equal 90 percent of the ratio that would apply if the mitigation were to occur outside the watershed or were to occur one-half mile or more from the site of the discharge, but the ratio established under this subdivision may be no less than 1.2 acres for each acre affected by the discharge.

(e) As part of the mitigation program established under par. (a), the department may establish an in lieu fee subprogram, in consultation with the army corps of engineers, under which payments are made to the department or another entity for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the program shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community. The subprogram shall be consistent with federal regulations.

118,88 Section 88. 281.36 (4) (intro.) of the statutes is amended to read:

281.36 (4) Exemptions. (intro.) Except as provided in sub. (5), the certification permitting requirement under sub. (2) (3b) does not apply to any discharge that is the result of any of the following activities:

118,89 Section 89. 281.36 (4) (b) of the statutes is amended to read:

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

118,90 Section 90. 281.36 (4) (e) 1. of the statutes is amended to read:

281.36 (4) (e) 1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

118,91 Section 91. 281.36 (4) (e) 2. of the statutes is amended to read:

281.36 (4) (e) 2. That the reach of the affected nonfederal wetland is not reduced.

118,92 Section 92. 281.36 (4) (e) 3. of the statutes is amended to read:

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

118,93 Section 93. 281.36 (5) (intro.) of the statutes is amended to read:

281.36 (5) Inapplicability of exemptions. (intro.) Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification permitting requirement under sub. (2) (3b) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of a nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:

118,94 Section 94. 281.36 (5) (a) of the statutes is amended to read:

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

118,95 Section 95. 281.36 (5) (b) of the statutes is amended to read:

281.36 (5) (b) Reduce the reach of any nonfederal wetland.

118,96 Section 96. 281.36 (6) (a) 1. of the statutes is amended to read:

281.36 (6) (a) 1. Make the rules consistent with existing federal law or interpretation.

118,97 Section 97. 281.36 (7) of the statutes is repealed.

118,98 Section 98. 281.36 (8) (title) of the statutes is repealed.

118,99 Section 99. 281.36 (8) (a) of the statutes is repealed.

118,100 Section 100. 281.36 (8) (b) of the statutes is repealed.

118,101 Section 101. 281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and amended to read:

281.36 (3g) (b) Additional required permits. The In addition to the wetland general permits required under par. (a), the department shall issue wetland general water quality certifications permits that are consistent with all of the, and correspond to, any general permits that are issued under 33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state and that regulate discharges other than those regulated under the required wetland general permits issued under par. (a).

118,102 Section 102. 281.36 (8) (bn) 2. of the statutes is repealed.

118,103 Section 103. 281.36 (8) (c) of the statutes is repealed.

118,104 Section 104. 281.36 (8) (d) of the statutes is repealed.

118,105 Section 105. 281.36 (8) (e) of the statutes is repealed.

118,106 Section 106. 281.36 (9) (a) (intro.) of the statutes is amended to read:

281.36 (9) (a) (intro.) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under sub. (4) is appropriate, and 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:

118,107 Section 107. 281.36 (9) (a) 1. of the statutes is amended to read:

281.36 (9) (a) 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 under sub. (3g) or (3m).

118,108 Section 108. 281.36 (9) (a) 2. of the statutes is amended to read:

281.36 (9) (a) 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.

118,109 Section 109. 281.36 (9) (a) 3. of the statutes is amended to read:

281.36 (9) (a) 3. Gain access to and inspect any records that the department requires a holder of a water quality certification to wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.

118,110 Section 110. 281.36 (9) (am) to (c) of the statutes are repealed.

118,111 Section 111. 281.36 (9) (d) and (e) of the statutes are created to read:

281.36 (9) (d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under par (a).

(e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:

1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.

2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.

118,112 Section 112. 281.36 (10) (intro.) and (a) of the statutes are consolidated, renumbered 281.36 (10) and amended to read:

281.36 (10) Other Additional requirements. The requirement of being issued a wetland individual permit or proceeding under the authority of a wetland general permit under this section is in addition to any permit or other approval required by the department for a project or activity that involves a discharge into a wetland. This section governs the determination of whether a discharge is in compliance with water quality standards but does not affect the authority of the department to do any of the following: (a) Regulate otherwise 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.

118,113 Section 113. 281.36 (10) (b) of the statutes is repealed.