Amendment SSA1-SB459

The substitute amendment requires DNR to limit its review of practicable alternatives to those that are consistent with the overall purpose and scope of the project. The substitute amendment also requires DNR to impose a level of scrutiny and to require an applicant to provide an amount of information that is commensurate with the severity of the environmental impact of the project, as determined by DNR.

Utility permit procedure

Under current law, with certain exceptions, a public utility may not begin construction on a utility project, and no person, including a public utility, may construct a large electric generating facility or a high-voltage transmission line, unless the Public Service Commission (PSC) has issued a certificate for the project. A public utility is a company or municipality that produces or delivers heat, light, water, or power to or for the public.

Generally, under current law, a person must submit an application to DNR for each required permit, including an individual permit to conduct an activity in a navigable water or a discharge in a wetland. If the applicant is a utility that is required to obtain a certificate from the PSC, however, the utility must submit a single application to DNR requesting all of the DNR permits that the utility is required to obtain for a given project affecting navigable waters and wetlands and must follow a different procedure for obtaining these DNR permits (utility application procedure).

This substitute amendment removes the exemption in current law that provides that the permit application procedures that would normally apply to an application for an individual permit do not apply to an application for an individual permit submitted under the utility application procedure. This substitute amendment also removes the exemption in current law that provides that the procedures that would normally apply to administrative and judicial review of a DNR decision on an individual permit do not apply to decisions on an individual permit submitted under the utility application procedure. Instead, the substitute amendment specifies that the utility permit procedures are exclusive and apply in lieu of any other procedures that would otherwise apply to permits applied for under the utility permit procedure.

Also under this substitute amendment, there is no opportunity to object to, and request a stay of, a DNR decision related to a wetland individual permit applied for under the utility application procedure.

Nonpoint water pollution

This substitute amendment provides that, if a covered municipality has obtained all permits required for the construction of a stormwater management pond in an artificial water body, whether navigable or nonnavigable, DNR may not prohibit the construction of the stormwater management pond as a method by which the covered municipality may achieve compliance with DNR's prescribed performance standards for sources of nonpoint water pollution, which is water pollution from diffuse sources, or with an approved total maximum daily load (TMDL) requirement. A covered municipality is a municipality that has been issued an individual municipal separate storm sewer permit or that is covered by a general municipal separate storm sewer permit. A TMDL is the maximum amount of a pollutant that a body of water can receive and still meet water quality standards.

DNR's current rules provide that, for the purpose of determining compliance with performance standards, DNR may give credit for the use of practices, measures, or techniques (best management practices) that minimize pollutants carried in runoff. The rules prohibit DNR from giving credit for a best management practice that is located in a navigable water. The substitute amendment provides that DNR must give credit for any pollutant reduction achieved by a pond constructed by a covered municipality in determining compliance with performance standards specified in a stormwater discharge permit or with an approved TMDL requirement.

The substitute amendment also provides that, if a covered municipality applies for an individual permit for the construction of a stormwater management pond in an artificial water body, whether navigable or nonnavigable, for the purpose of achieving compliance with performance standards specified in a stormwater discharge permit or with an approved TMDL requirement, in making its determination DNR is required to take into consideration the sediment control in and water quality improvements to the watershed as a whole that result from the stormwater management pond.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB459-SSA1,1 Section 1. 23.24 (4) (b) 4. of the statutes is created to read:

SB459-SSA1,8,3 23.24 (4) (b) 4. A person who engages in an activity listed under sub. (3) (a) in the course of performing shoreline maintenance as authorized under s. 30.125.

SB459-SSA1,2 Section 2. 30.01 (1am) (a) of the statutes is amended to read:

SB459-SSA1,8,6 30.01 (1am) (a) A Subject to s. 30.106, a state natural area designated or dedicated under ss. 23.27 to 23.29.

SB459-SSA1,3 Section 3. 30.01 (1am) (b) of the statutes is amended to read:

SB459-SSA1,8,9 30.01 (1am) (b) A Subject to s. 30.106, a surface water identified as a trout stream by the department.

SB459-SSA1,4 Section 4. 30.01 (1am) (c) of the statutes is repealed.

SB459-SSA1,5 Section 5. 30.01 (1am) (d), (e), (f) and (g) of the statutes are created to read:

SB459-SSA1,8,14 30.01 (1am) (d) A body of water designated as a wild rice water under a written agreement between the department and the Great Lakes Indian Fish and Wildlife Commission.

SB459-SSA1,8,17 (e) Subject to s. 30.106, a body of water in a wetland along Lake Michigan or Lake Superior that the department has identified as an ecologically significant coastal wetland.

SB459-SSA1,8,19 (f) A river that is included in the national wild and scenic rivers system or designated as a wild river under s. 30.26.

SB459-SSA1,8,21 (g) Subject to s. 30.106, the portion of a body of water that contains a public rights feature in a sensitive area of a lake.

SB459-SSA1,6 Section 6. 30.01 (1d) of the statutes is amended to read:

SB459-SSA1,9,5 30.01 (1d) "Boathouse" means a structure with one or more walls or sides that has been used for one or more years for the storage of watercraft and associated materials which has one or more walls or sides, regardless of the current use of the structure.

SB459-SSA1,7 Section 7. 30.01 (5p) of the statutes is created to read:

SB459-SSA1,9,10 30.01 (5p) "Public rights feature" means a location in a body of water identified by the department as in need of special protection under ss. 30.12 (1p) (a) 3. and (2m), 30.123 (6m) and (6s), 30.20 (1k) (a) 2. and (1m), 30.206 (1) (ag), (3) and (3r) to assure that the public's rights and interests under the public trust doctrine are protected.

SB459-SSA1,8 Section 8. 30.01 (6b) of the statutes is created to read:

SB459-SSA1,9,15 30.01 (6b) "Sensitive area" means an area of aquatic vegetation identified by the department as offering critical or unique fish and wildlife habitat, including seasonal or lifestage requirements, or offering water quality or erosion control benefits to the body of water.

SB459-SSA1,9 Section 9. 30.025 (5) of the statutes is amended to read:

SB459-SSA1,9,20 30.025 (5) Exemption from certain Exclusive procedures. Sections 30.208 and 30.209 do not apply to an application for any permit The procedures provided under this section are exclusive and apply in lieu of any other procedures that would otherwise apply to permits applied for under this section.

SB459-SSA1,10 Section 10. 30.053 of the statutes is created to read:

SB459-SSA1,9,24 30.053 Applicability of chapter to artificial water bodies. Except as specifically provided otherwise in this chapter, nothing in this chapter applies to an artificial water body, as defined in s. 30.19 (1b) (a), that is not hydrologically connected to a natural navigable waterway and that does not discharge into a natural navigable waterway except as a result of storm events.

SB459-SSA1,11 Section 11. 30.106 of the statutes is created to read:

SB459-SSA1,10,9 30.106 Approval of certain areas of special natural resource interest. Beginning on the effective date of this section .... [LRB inserts date], the department may not identify an area described under s. 30.01 (1am) (a), (b), (e), or (g) as an area of special natural resource interest unless it first notifies the joint committee for review of administrative rules in writing of the proposal and obtains the approval of the committee.

SB459-SSA1,12 Section 12. 30.115 of the statutes is created to read:

SB459-SSA1,10,11 30.115 Ownership of certain filled navigable waters. (1) In this section:

SB459-SSA1,10,13 (a) "Line of navigation" means the depth of a navigable water that is the greater of the following:

SB459-SSA1,10,14 1. Three feet.

SB459-SSA1,10,17 2. The depth required to operate a boat on the navigable water based on normal summertime low levels on the navigable water or summer minimum levels if summer minimum levels are established by the department.

SB459-SSA1,10,21 (b) "Riparian zone" means the area that extends from riparian land waterward to the line of navigation as determined by a method that establishes riparian zone lines between adjacent riparian owners in a manner that equitably apportions access to the line of navigation.

SB459-SSA1,11,2 (2) Subject to any public easement under sub. (2m), if a person placed fill on the bed of a navigable water before January 1, 1975, the filled area above the ordinary high-water mark is owned by the riparian owner in whose riparian zone the fill is located on the effective date of this subsection .... [LRB inserts date], if the filled area has continuously remained above the ordinary high-water mark since January 1, 1975.

SB459-SSA1,11,6 (2m) If by January 1, 2016, there has been public use of the filled area described under sub. (2) that is visible, open, and notorious and of which a reasonable riparian owner would be aware, then the riparian owner's ownership of the filled area under sub. (2) is subject to a public easement for that public use.

SB459-SSA1,11,9 (3) The department may not require the riparian owner of a filled area described under sub. (2) to remove the fill, whether above or below the ordinary high-water mark, from that area.

SB459-SSA1,11,11 (4) Upon request, the department shall furnish a quitclaim deed to the riparian owner described under sub. (2).

SB459-SSA1,11,13 (5) This section does not apply to a lake bed area conveyed by the legislature as provided under s. 13.097.

SB459-SSA1,13 Section 13. 30.12 (1g) (am) of the statutes is created to read:

SB459-SSA1,11,16 30.12 (1g) (am) A deposit of sand, gravel, or stone that is necessary to perform an activity authorized under s. 30.125 (2) (a).

SB459-SSA1,14 Section 14. 30.12 (1k) (f) of the statutes is amended to read:

SB459-SSA1,11,23 30.12 (1k) (f) A decision of If the department against determines that the owner of a structure for which is not entitled to an exemption is claimed under this subsection is subject to a trial de novo, the owner may bring an action for declaratory judgment under s. 806.04 in the circuit court for the county in which the riparian property is located. The owner is not entitled to a contested case hearing or judicial review under ch. 227.

SB459-SSA1,15 Section 15. 30.12 (3) (a) 3c. of the statutes is amended to read:

SB459-SSA1,12,6 30.12 (3) (a) 3c. Place riprap in order to replace or repair existing riprap, other than riprap that is exempt under sub. (1g) (i) or (j). Under the permit, the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower. In issuing the permit, the department may not impose conditions that prohibit the replacement or repair of riprap located in an area of special natural resource interest.

SB459-SSA1,16 Section 16. 30.12 (3) (a) 3g. of the statutes is amended to read:

SB459-SSA1,12,12 30.12 (3) (a) 3g. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 100 continuous feet in an inland lake of 300 acres or more. Under the permit the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower.

SB459-SSA1,17 Section 17. 30.12 (3) (a) 3r. of the statutes is amended to read:

SB459-SSA1,12,18 30.12 (3) (a) 3r. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 300 continuous feet in a Great Lakes water body. Under the permit the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower.

SB459-SSA1,18 Section 18. 30.12 (3) (a) 6. (intro.) of the statutes is renumbered 30.12 (3) (a) 6. and amended to read:

SB459-SSA1,12,24 30.12 (3) (a) 6. Place a permanent boat shelter adjacent to the owner's property for the purpose of storing or protecting watercraft and associated materials, except that no general or individual permit may be issued for a permanent boat shelter that is constructed after May 3, 1988, if any of the following apply: .

SB459-SSA1,19 Section 19. 30.12 (3) (a) 6. a., b. and c. of the statutes are repealed.

SB459-SSA1,20 Section 20. 30.12 (3) (a) 13. of the statutes is amended to read:

SB459-SSA1,13,8 30.12 (3) (a) 13. Place a seawall to replace an existing seawall for which a permit has been issued or an exemption granted under this chapter, or for which no permit was required at the time the seawall was built. The replacement may not exceed 100 continuous feet in an inland lake of 300 or more acres and may not exceed 300 continuous feet in a Great Lakes water body. In issuing the permit, the department may not impose conditions that prohibit the replacement of a seawall located in an area of special natural resource interest.

SB459-SSA1,21 Section 21. 30.12 (3) (c) of the statutes is amended to read:

SB459-SSA1,13,19 30.12 (3) (c) The department may impose conditions on general permits issued under par. (a) 6. to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore and may not be based on the degree to which adjacent land is developed. The conditions shall be designed to ensure the structural soundness and durability of boat shelters. A municipality may enact ordinances that are consistent with this paragraph and with any conditions imposed on general permits issued to regulate the architectural features of boat shelters that are under the jurisdiction of the municipality.

SB459-SSA1,22 Section 22. 30.12 (3m) (cr) of the statutes is created to read:

SB459-SSA1,13,24 30.12 (3m) (cr) In determining whether to issue an individual permit to the owner of a proposed permanent boat shelter, the department may not deny the permit on the basis of the distance at which the shelter will extend from the shore or the degree to which adjacent land is developed.

SB459-SSA1,23 Section 23. 30.121 (1) of the statutes is amended to read:

SB459-SSA1,14,3 30.121 (1) Definition. In this section, the terms "maintain" and "repair" include replacing structural elements, including roofs, doors, walls, windows, beams, porches, and floors, and foundations.

SB459-SSA1,24 Section 24. 30.121 (3b) of the statutes is created to read:

SB459-SSA1,14,11 30.121 (3b) Expansion of historic boathouses. The riparian owner of any boathouse or fixed houseboat extending beyond the ordinary high-water mark of any navigable waterway may expand the boathouse without a permit under s. 30.12 if the boathouse is listed in the national register of historic places in Wisconsin or the state register of historic places, the boathouse is not expanded beyond its listed historical boundaries, and the expansion does not involve the placement of any new structure on the bed of a navigable water.

SB459-SSA1,25 Section 25. 30.121 (3c) of the statutes is renumbered 30.121 (3c) (intro.) and amended to read:

SB459-SSA1,14,17 30.121 (3c) Exception; certain boathouses. (intro.) Subsection (3) does not apply to repairing or maintaining a boathouse if the boathouse was in existence on December 16, 1979, and if all of the following apply to the repairing or maintaining repair or maintenance:

SB459-SSA1,14,18 (a) It does not affect the size, or location, or configuration of the boathouse and.

SB459-SSA1,14,19 (b) It does not result in the boathouse being converted into living quarters.

SB459-SSA1,26 Section 26. 30.121 (3c) (c) of the statutes is created to read:

SB459-SSA1,14,22 30.121 (3c) (c) It does not involve the placement of a floor over a wet bay in the boathouse on or after the effective date of this paragraph .... [LRB inserts date].

SB459-SSA1,27 Section 27. 30.121 (3w) (c) of the statutes is renumbered 30.121 (3w) (c) (intro.) and amended to read:

SB459-SSA1,15,2 30.121 (3w) (c) (intro.) The boathouse is located within in any of the following locations:

SB459-SSA1,15,4 1. Within a harbor that is being operated as a commercial enterprise or is located on.

SB459-SSA1,15,5 2. On a river that is a tributary of Lake Michigan or Lake Superior.

SB459-SSA1,28 Section 28. 30.121 (3w) (c) 3. of the statutes is created to read:

SB459-SSA1,15,8 30.121 (3w) (c) 3. On an outlying water and the work is limited to the expansion, repair, or maintenance of an existing boathouse.

SB459-SSA1,29 Section 29. 30.125 of the statutes is created to read:

SB459-SSA1,15,10 30.125 Shoreline maintenance in outlying waters. (1) In this section:

SB459-SSA1,15,11 (a) "Outlying waters" has the meaning given in s. 29.001 (63).

SB459-SSA1,15,13 (b) "Shoreline area" means the area that is located between the ordinary high-water mark and water's edge.

SB459-SSA1,15,17 (2) If the conditions under sub. (3) are met, the permitting requirements under ss. 23.24 (3) and 30.12 and the contract and permitting requirements under s. 30.20 do not apply to any of the following maintenance activities conducted in a shoreline area of an outlying water:

SB459-SSA1,15,21 (a) The leveling of sand or the grooming of soil if the leveling or grooming will occur in an area of unconsolidated material predominately composed of sand, rock, and pebble that is authorized by the owner of the riparian land that abuts the shoreline area.

SB459-SSA1,15,23 (b) The removal of debris or the mowing of vegetation that is authorized by the owner of the riparian land that abuts the shoreline area.