Amendment SSA2-SB459

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EHS&ZDW:all

2015 - 2016 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 2, TO SENATE BILL 459

January 29, 2016 - Offered by Senator Lasee.

SB459-SSA2,2,2 An Act to repeal 30.01 (1am) (c) and 30.12 (3) (a) 6. a., b. and c.; to renumber 281.16 (2) (am) 1. a.; to renumber and amend 30.12 (3) (a) 6. (intro.), 30.121 (3c), 30.121 (3w) (c) and 281.36 (3n) (a); to amend 30.01 (1d), 30.025 (5), 30.12 (1k) (f), 30.12 (3) (a) 3c., 30.12 (3) (a) 3g., 30.12 (3) (a) 3r., 30.12 (3) (a) 13., 30.12 (3) (c), 30.121 (1), 30.121 (3), 30.133 (1), 30.19 (1b) (a), 30.19 (1g) (a), 30.19 (1g) (am), 30.206 (1) (a), 30.29 (3) (d), 31.02 (1), 31.185 (5), 281.36 (3m) (b) and 281.36 (4) (d); and to create 23.24 (4) (b) 4., 30.01 (1am) (d), (e), (f), (g) and (h), 30.01 (3c), 30.01 (5p), 30.01 (5r), 30.01 (6b), 30.053, 30.106, 30.115, 30.12 (1g) (am), 30.12 (3) (a) 12., 30.12 (3m) (cr), 30.121 (3b), 30.121 (3c) (c), 30.121 (3w) (c) 3., 30.125, 30.19 (1m) (dm), 30.19 (4) (d), 30.20 (1g) (b) 3., 30.20 (1t) (b), 30.20 (1t) (c), 30.20 (2) (cn), 31.345, 33.22 (6), 281.16 (1) (bg), 281.16 (2) (c), 281.36 (1) (am), 281.36 (1) (ct), 281.36 (3n) (a) 2. and 3., 281.36 (3n) (am) and 281.36 (4) (f) of the statutes; relating to: the regulation of navigable waters and wetlands.

Analysis by the Legislative Reference Bureau

Introduction

This substitute amendment makes various changes to the regulation of navigable waters, artificial water bodies, wetlands, and nonpoint source pollution.

Navigable waters

Title to the bed of certain filled navigable waters

Under current statutory and common law, this state holds title to navigable waters in trust for public purposes. This body of law, commonly referred to as the public trust doctrine, is encompassed in article IX, section 1, of the Wisconsin Constitution. Under the public trust doctrine, the state has traditionally been the owner of lake beds up to the ordinary high-water mark (OHWM).

This substitute amendment provides that any area of a navigable water that was filled before January 1, 1975, and that has remained continuously filled since January 1, 1975, is owned by the riparian owner in whose riparian zone the filled area is located. The substitute amendment defines the riparian zone as the area that extends from the riparian land waterward to the line of navigation, which is three feet or the depth that is generally needed to moore a boat or use a boat hoist or boat lift on the water, 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. The substitute amendment establishes that if by January 1, 2016, there has been public use of the filled area 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 is subject to a public easement for that public use. The substitute amendment prohibits the Department of Natural Resources from requiring the riparian owner of the filled area to remove the fill and requires DNR to furnish a quitclaim deed to the riparian owner of the filled area upon request.

Applicability of navigable water law to artificial water bodies

Under this substitute amendment, unless specifically provided otherwise, the statutes that regulate navigable waters and harbors do not apply to an artificial water body 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. An artificial water body is a body of water that does not have a history of being a lake or stream or of being part of a lake or stream.

The level and flow of water

Under the substitute amendment, DNR may regulate and control the level and flow of water in all navigable waters in the interest of public rights in navigable waters; to promote safety; and to protect life, health, property, property values, and economic values.

Under the substitute amendment, a public inland lake protection and rehabilitation district may petition DNR to set the water level of a lake within the district's jurisdiction at a level the district determines to be necessary to protect property, property values, and economic values within the district's jurisdiction. The substitute amendment establishes a process under which DNR, after receiving such a petition, must make a preliminary water level determination for the lake, post notice of this determination, and solicit public comments. Under this process, the secretary of natural resources must make a final water level determination, considering the district's petition, the department's preliminary determination, and all public comments received, giving substantial weight to any findings by the district relating to the water level the district has determined to be necessary to protect property, property values, and economic values within the district's jurisdiction.

Navigable water permits

Under current law, a person must obtain one or more permits from DNR in order to conduct certain activities in or near navigable waterways, including placing structures or deposits in navigable waters; constructing or maintaining bridges and culverts; enlarging or connecting waterways; altering the courses of streams and rivers; removing material from the bed of a navigable waterway; and constructing, dredging, or enlarging an artificial water body that connects with a navigable waterway or that is located within 500 feet of the OHWM of an existing navigable waterway. The bed of a navigable water includes the area between the water's edge and the OHWM (shoreline area).

Under current law, some activities are exempt from these permitting requirements, some activities require that the person be issued an individual permit for the activity, and some activities are authorized under statewide general permits. If a general permit covers an activity, the person proposing to conduct the activity must notify DNR that the person wishes to proceed with the activity. If DNR does not request additional information or notify the person that an individual permit will be required within 30 days after receipt of the notification, the person may proceed with the activity.

This substitute amendment does the following with respect to general permits and individual permits to conduct activities in navigable waters:

1. Requires DNR to issue a general permit that authorizes a riparian owner to remove up to 30 cubic yards of material from the bed of an inland lake in the riparian owner's riparian zone and up to 100 cubic yards of material from the bed of outlying waters in the riparian owner's riparian zone, subject to certain conditions.

2. Prohibits DNR from requiring a person to collect a sediment sample as part of an application for an individual permit or prior to proceeding under a general permit unless DNR has specific information that indicates the potential that contaminants may be present in the material proposed to be dredged.

3. Exempts from the permit requirements certain shoreline maintenance activities that are conducted in certain shoreline areas.

4. Exempts from the permit requirements the dredging of an artificial water body that does not connect with a navigable waterway.

5. Establishes that a permit is required to construct or enlarge an artificial water body that is within 500 feet of the OHWM of an existing navigable waterway but that does not or will not connect with the existing navigable waterway.

6. Limits the types of areas that DNR may identify as areas of special natural resource interest (ASNRI) and requires the Joint Committee for Review of Administrative Rules to approve any new area identified by DNR as containing a public rights feature or sensitive area. Under current law, a riparian owner is exempt from the permit requirement for depositing material or placing a structure on the bed of certain navigable waters if the structure or material is located in an area other than an ASNRI, does not interfere with riparian rights of other riparian owners, and is a certain type of structure or material.

7. Provides that, in issuing general permits for the replacement or repair of existing riprap or the replacement of seawalls, DNR may not impose conditions that prohibit the replacement or repair of riprap or the replacement of seawalls located in areas designated as ASNRI.

Structures in navigable waters

Piers

Under this substitute amendment, a DNR decision that a riparian owner does not fall under an exemption to the prohibition against placing a pier or wharf on the bed of a navigable water may only be challenged through a declaratory judgment proceeding in the circuit court for the county in which the riparian property is located and is not subject to a contested case hearing or judicial review under the statutory administrative review procedures. Under current law, a DNR decision against the riparian owner is subject to a new trial.

Under this substitute amendment, an owner of riparian land abutting a navigable water who owns a boat docking facility that is lawfully placed in that water is not prohibited from entering into an agreement with another owner of riparian land abutting the same navigable water to use a shared boat docking facility provided that the agreement does not result in more slips than are authorized.

Boathouses

This substitute amendment changes the definition of a boathouse to specify that a boathouse is a structure used for one or more years for the storage of watercraft and associated materials regardless of its current use. The substitute amendment also makes various changes to the regulation of boathouses, including:

1. Allows a boathouse located beyond the OHWM of a navigable waterway to be expanded, and provides that the expansion does not require a permit, 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.

2. Adds as a condition to the repair and maintenance of a boathouse or fixed houseboat extending beyond the OHWM that is allowed if within certain cost limits under current law that the repair or maintenance may not involve the placement of a floor over a wet bay.

3. Adds foundations to the list of structural elements of a boathouse or fixed houseboat that may be replaced within the current cost limit on repairing and maintaining a boathouse or fixed houseboat.

4. Allows the repair or maintenance of a boathouse in existence on December 16, 1979, to affect the configuration of the boathouse and still fall under the exception to the cost limit on repairing and maintaining such a boathouse, but adds a condition that the repair or maintenance may not involve the placement of a floor over a wet bay in the boathouse.

Boat shelters

Under current law, a boat shelter is a structure used for the storage of watercraft and associated materials that has no walls or sides. This substitute amendment eliminates the conditions that DNR may place on a general permit authorizing a riparian owner to place a boat shelter relating to the location of the shelter and other existing structures. Under the substitute amendment, DNR may impose conditions on the general permit governing the architectural features of boat shelters and the number of boat shelters that may be placed adjacent to a parcel of land, but those conditions may not govern the distance that a boat shelter will extend from the shore, except to prohibit the boat shelter from extending beyond the line of navigation and may not be based on the degree to which adjacent land is developed. Also under the substitute amendment, in determining whether to issue an individual permit to the owner of a proposed permanent boat shelter, DNR may not deny the permit on the basis of the distance at which a boat shelter will extend from the shore or the degree to which adjacent land is developed, except that DNR may deny the permit on the basis that the boat shelter will extend beyond the line of navigation.

Seawalls

This substitute amendment requires DNR, in the general permit authorizing a riparian owner to replace an existing seawall for which DNR has issued a permit, to authorize a seawall for which DNR granted an exemption from a permit requirement or for which no permit was required when the seawall was built.

Riprap

This substitute amendment requires DNR, in the general permit authorizing a riparian owner to place riprap on the bed or bank of a navigable water adjacent to the owner's property in certain amounts, to authorize the riprap to extend to the top of the bank of the navigable water or four feet above the OHWM, whichever is lower.

Operation of a vehicle in navigable water

This substitute amendment exempts from the general prohibition on operating a utility terrain vehicle or all-terrain vehicle on any navigable water or the exposed bed of a navigable water a person engaged in activities landward of a lawfully established bulkhead line for which no general or individual permit and no contract is required under navigable water law.

Wetlands

Wetland permits

Current law requires DNR to issue certain wetland general permits for discharges to wetlands that are necessary for the treatment or disposal of hazardous waste or toxic pollutants if not more than two acres of wetlands are affected, and discharges for commercial, residential, or agricultural purposes if not more than 10,000 square feet of wetland are affected. Current law allows DNR to establish different requirements, conditions, and exceptions in general permits to ensure that the discharges will cause only minimal adverse environmental effects. Current law establishes a procedure for obtaining authorization to proceed under a wetland general permit that is similar to the procedure for obtaining authorization under general permits that authorize structures and other activities in or near navigable waters. Current law also authorizes DNR to require a person to apply for and obtain a wetland individual permit if DNR determines that conditions specific to the site require additional restrictions on the discharge in order to provide reasonable assurance that no significant adverse impacts to wetland functional values will occur.

This substitute amendment exempts from the permitting requirement any discharge that is the result of maintaining a sedimentation or stormwater detention basin and associated conveyance features. Current law exempts from the permitting requirement any discharge that is the result of maintaining a drainage ditch, and this substitute amendment adds to this exemption a discharge that is the result of a roadside ditch. However, the substitute amendment removes from these exemptions any drainage or roadside ditch that serves as fish spawning habitat or a passage to fish spawning habitat.

Practicable alternatives review

Under current law, DNR reviews the practicable alternatives presented in an application for a individual permit, and must find that the project complies with wetland quality standards if it determines that the proposed project represents the least environmentally damaging practicable alternative, all practicable measures to minimize the adverse impact to wetland functional values will be taken, and the discharge will not result in significant adverse impacts to wetland functional values or to water quality or result in any other significant adverse environmental consequences. Upon making such a finding, DNR is authorized, but is not required, to issue a wetland individual permit.

Current law requires DNR to limit its review of practicable alternatives to those that are located at the site of the discharge or adjacent to that site if the applicant has demonstrated that the proposed project causing the discharge will result in a demonstrable economic public benefit, that the proposed project is necessary for the expansion of an existing industrial, commercial, or agricultural facility that is in existence at the time the application is submitted, or that the proposed project will occur in an industrial park that is in existence at the time the application is submitted. This substitute amendment instead requires DNR to limit its review of practicable alternatives to those that are located at the site of the discharge or adjacent to that site if only one of those conditions is met.

This substitute amendment also requires DNR to limit its review of practicable alternatives to those located on the property owned by the applicant for projects involving fewer than two acres of wetland if the project is limited to either the construction or expansion of a single-family home and attendant features, the construction or expansion of a barn or farm buildings, or the expansion of a small business project. However, the substitute amendment provides that a project that is part of a common plan of development initiated after July 1, 2012, is not eligible for this limited review unless wetland boundaries on the project site as shown in an onsite delineation have changed since commencement of the development project.

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.