AB322,1,5 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)
3to (5); to amend 281.69 (3) (b) 2., 281.98 (1) and 299.95; and to create 281.01
4(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
Nonfederal wetlands
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
of water.
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 1Section 1. 23.321 (title) and (1) (title), (a) and (b) of the statutes are
2renumbered 281.37 (title) and (1) (title), (a) and (b).
AB322, s. 2 3Section 2. 23.321 (1) (c) of the statutes is repealed.
AB322, s. 3 4Section 3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to
5(f).
AB322, s. 4 6Section 4. 23.321 (2) of the statutes, as created by 1999 Wisconsin Act 147, is
7renumbered 281.37 (2).
AB322, s. 5 8Section 5. 23.321 (2m) to (5) of the statutes are renumbered 281.37 (2m) to (5),
9and 281.37 (2m) (a) and (b) 3., as renumbered, are amended to read:
AB322,4,510 281.37 (2m) (a) 1. A person who is the holder of a permit or other approval that
11authorizes a mitigation project shall grant a conservation easement under s. 700.40

1to the department to ensure that a wetland that is being restored, enhanced, or
2created 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.
4The department shall revoke the permit or other approval if the holder of the permit
5or other approval fails to take these measures.
AB322,4,106 2. A person who is restoring, enhancing, or creating a wetland to provide
7transferable credits as part of a wetlands mitigation bank shall grant a conservation
8easement under s. 700.40 to the department, to ensure that the wetland will not be
9destroyed or substantially degraded by any subsequent owner proprietor of or holder
10of interest in the property on which the wetland is located.
AB322,4,1311 (b) 3. Any subsequent owner proprietor of or holder of interest in the property
12on which the wetland specified in subd. 1. is located did not contribute to the loss of
13the wetland.
AB322, s. 6 14Section 6. 281.01 (21) of the statutes is created to read:
AB322,4,1515 281.01 (21) "Wetland" has the meaning given in s. 23.32 (1).
AB322, s. 7 16Section 7. 281.36 of the statutes is created to read:
AB322,4,18 17281.36 Water quality certification for nonfederal wetlands. (1)
18Definitions. In this section:
AB322,4,1919 (a) "Additional federal law or interpretation" means any of the following:
AB322,4,21201. An amendment to 33 USC 1344 (f) that becomes effective after January 9,
212001.
AB322,4,23222. Any other federal statutory provision that affects the exemptions under 33
23USC 1344
(f) and that becomes effective after January 9, 2001.
AB322,5,324 3. A regulation, rule, memorandum of agreement, guidance letter, or other
25provision established by a federal agency that is promulgated or adopted pursuant

1to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that
2applies to wetlands located in this state, and that becomes effective after January
39, 2001.
AB322,5,64 4. A decision issued by a federal district or federal appellate court that affects
5the application of a federal amendment or provision described in subds. 1. to 3., that
6applies to wetlands located in this state, and that is issued after January 9, 2001.
AB322,5,77 (b) "Existing federal law or interpretation" means any of the following:
AB322,5,881. 33 USC 1344 (f), as amended to January 8, 2001.
AB322,5,129 2. A regulation, rule, memorandum of agreement, guidance letter, or other
10provision established by a federal agency that is promulgated or adopted pursuant
11to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that
12applies to wetlands located in this state, and that is in effect on January 8, 2001.
AB322,5,1613 3. A decision issued by a federal district or federal appellate court that affects
14the application of a federal amendment or provision described in subds. 1. and 2.,
15that applies to wetlands located in this state, and that is issued on or before January
168, 2001.
AB322,5,1917 (bn) "Local governmental unit" means a city, village, town, county, or special
18purpose district; and agency or corporation of a city, village, town, county, or special
19purpose district; or a combination or subunit of any of the foregoing.
AB322,5,2120 (c) "Nonfederal wetland" means a wetland that is identified as such under sub.
21(1m).
AB322,5,2322 (d) "Water quality standards" means water quality standards set under rules
23promulgated by the department under s. 281.15.
AB322,5,25 24(1m) Determination of nonfederal wetlands. (a) A wetland is identified as
25a nonfederal wetland if either of the following applies:
AB322,6,6
11. Any discharges of dredged or fill material into the wetland are determined
2not to be subject to regulation under 33 USC 1344 due to the decision in Solid Waste
3Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S.
4Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency
5or by a federal district or federal appellate court that applies to wetlands located in
6this state.
AB322,6,117 2. The wetland is determined to be a nonnavigable, intrastate, and isolated
8wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S.
9Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent
10interpretations of that decision by a federal agency or by a federal district or federal
11appellate court that applies to wetlands located in this state.
AB322,6,1212 (b) For the purpose of identifying wetlands under par. (a):
AB322,6,1413 1. If the U.S. army corps of engineers issues a determination as to whether a
14wetland is a nonfederal wetland, the department shall adopt that determination.
AB322,6,1715 2. If the U.S. army corps of engineers does not issue a determination as to
16whether a wetland is a nonfederal wetland, the department shall determine whether
17the wetland is a nonfederal wetland.
AB322,6,24 18(2) Certification requirement. (a) No person may discharge dredged or fill
19material into a nonfederal wetland unless the discharge is authorized by a water
20quality certification issued by the department under this section. No person may
21violate any condition imposed by the department in a water quality certification
22under this section. The department may not issue a water quality certification under
23this section unless it determines that the discharge will comply with all applicable
24water quality standards.
AB322,7,3
1(b) The department shall promulgate a rule to establish time limits for the steps
2involved in processing applications and issuing determinations that approve or deny
3applications for water quality certifications issued under this section.
AB322,7,19 4(3) Delineation procedures. For purposes of delineating the boundary of a
5nonfederal wetland, the department and the person who is applying for or who holds
6a water quality certification under this section shall use the procedures contained
7in the wetlands delineation manual published by the U.S. army corps of engineers.
8The edition of the manual that shall be used shall be the 1987 edition of the manual
9and any document that the U.S. army corps of engineers issues interpreting that
10manual, unless the U.S. army corps of engineers publishes an edition of the manual
11after January 9, 2001, and the department by rule designates that edition as the one
12to be used under this subsection. If the U.S. army corps of engineers issues a
13guidance document interpreting the edition of the wetlands delineation manual that
14the department is required to use under this subsection and if that guidance
15document is issued after the effective date of this paragraph .... [revisor inserts date],
16the department shall notify the appropriate standing committee of each house of the
17legislature, as determined by the speaker of the assembly and the president of the
18senate, of the issuance of the guidance document and whether the department
19intends to promulgate a rule incorporating the provisions of the guidance document.
AB322,7,22 20(4) Exemptions. Except as provided in sub. (5), the certification requirement
21under sub. (2) does not apply to any discharge that is the result of any of the following
22activities:
AB322,7,2323 (a) Normal farming, silviculture, or ranching activities.
AB322,7,2524 (b) Maintenance, emergency repair, or reconstruction of damaged parts of
25structures that are in use in a nonfederal wetland.
AB322,8,2
1(c) Construction or maintenance of farm ponds, stock ponds, or irrigation
2ditches.
AB322,8,33 (d) Maintenance of drainage ditches.
AB322,8,64 (e) Construction or maintenance of farm roads, forest roads, or temporary
5mining roads that is performed in accordance with best management practices, as
6determined by the department, to ensure all of the following:
AB322,8,87 1. That the flow and circulation patterns and chemical and biological
8characteristics of the affected nonfederal wetland are not impaired.
AB322,8,99 2. That the reach of the affected nonfederal wetland is not reduced.
AB322,8,1110 3. That any adverse effect on the aquatic environment of the affected
11nonfederal wetland is minimized to the degree required by the department.
AB322,8,16 12(5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that
13would be exempt under sub. (4) is subject to the certification requirement under sub.
14(2) if the discharge is incidental to an activity that has as its purpose bringing a
15nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not
16previously subject and if the activity may do any of the following:
AB322,8,1717 (a) Impair the flow or circulation of any nonfederal wetland.
AB322,8,1818 (b) Reduce the reach of any nonfederal wetland.
AB322,8,23 19(6) Rules for exemptions. The department shall promulgate rules to interpret
20and implement the provisions under subs. (4) and (5). The rules shall be consistent
21with all existing federal laws or interpretations. The department shall incorporate
22all additional federal laws or interpretations into the rules that the department
23promulgates under this subsection and may not otherwise amend the rules.
AB322,9,4 24(7) Rules prohibition. The department may not promulgate or enforce a rule
25requiring a person who submits an application for a water quality certification under

1this section for the discharge of dredged or fill material into a nonfederal wetland to
2submit a description of practicable alternatives to the discharge or to submit a
3description of any investigation conducted to determine the viability of such
4alternatives if any of the following apply:
AB322,9,85 (a) The discharge is required by the federal government, the state, or a local
6governmental unit in order for the person submitting the application for the water
7quality certification to receive approval from the federal government, state, or local
8governmental unit for an activity that serves a public purpose.
AB322,9,109 (b) The federal government, the state, or a local governmental unit determines
10that the discharge is necessary to ensure public safety.
AB322,9,15 11(8) General water quality certifications. (a) In lieu of issuing individual
12water quality certifications under this section, the department may issue a general
13water quality certification for types of discharges that the department determines
14are similar in nature or for the purpose of simplifying the certification process if the
15discharges meet all of the following standards:
AB322,9,1716 1. The discharges will cause only minimal adverse environmental effects, as
17determined by the department, if they are performed separately.
AB322,9,1918 2. The cumulative adverse effect on the environment by the discharges will be
19minimal, as determined by the department.
AB322,9,2120 (b) No general water quality certification issued under this section may be
21effective for more than 5 years after the date of its issuance.
AB322,9,2422 (bn) 1. The department shall issue general water quality certifications that are
23consistent with all of the general permits issued under 33 USC 1344 (e) that applied
24on January 8, 2001, to nonfederal wetlands located in this state.
AB322,10,4
12. If a general permit as specified in subd. 1., is amended or modified after
2January 8, 2001, the department shall incorporate the amendments or modifications
3into the general water quality certifications issued under subd. 1. and may not
4otherwise amend or modify the general water quality certifications.
AB322,10,115 (c) If the department determines that any of the discharges under a general
6water quality certification issued under this section fails to meet any of the standards
7in par. (a), the department shall modify the certification so that the discharges meet
8all of the standards. If the department cannot modify the certification so that all of
9the standards will be met or if the department determines that the discharges subject
10to the general certification are more appropriately certified by using individual
11water quality certifications, the department shall revoke the general certification.
AB322,10,1412 (d) Before issuing, modifying, or revoking a general water quality certification
13under this subsection, the department shall provide notice and a hearing under ss.
14227.17 and 227.18.
AB322,10,17 15(9) Inspection authority. (a) For purposes of enforcing this section, any
16employee or other representative of the department, upon presenting his or her
17credentials, may do any of the following:
AB322,10,2018 1. Enter and inspect any property on which is located a nonfederal wetland, or
19part of a nonfederal wetland, for which an application for a water quality
20certification has been submitted to the department.
AB322,10,2321 2. Enter and inspect any property on which is located a nonfederal wetland and
22where the department has probable cause to believe that a violation of this section
23has occurred or is occurring to investigate a discharge of dredged or fill material.
AB322,10,2524 3. Gain access to and inspect any records that the department requires a holder
25of a water quality certification to keep.
AB322,11,7
1(am) An employee or representative of the department may not exercise the
2authority granted under par. (a) 1. before the date upon which the application is
3submitted. If the application is denied, an employee or representative of the
4department may not exercise this authority after the date on which the application
5is denied. If the application is approved, an employee or representative of the
6department may not exercise this authority after the 20th day immediately following
7the completion of the discharge of the dredged or fill material.
AB322,11,118 (b) Any employee or representative of the department may exercise the
9authority granted under par. (a) 1., 2., or 3. only during reasonable hours and only
10after the department has provided reasonable advance notice to the person owning
11the property involved or to the holder of the water quality certification.
AB322,11,1512 (c) An employee or representative of the department may not gain access to or
13inspect any records as authorized under par. (a) 3. unless the holder of the water
14quality certification, or the holder's designee, is present or unless the holder of the
15certification waives this requirement.
AB322,11,17 16(10) Other requirements. This section does not affect the authority of the
17department to do any of the following:
AB322,11,2018 (a) Regulate the discharge of dredged or fill material in a nonfederal wetland
19under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49
20to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.
AB322,11,2221 (b) Issue a water quality certification under rules promulgated under this
22chapter to implement 33 USC 1341 (a).
AB322, s. 8 23Section 8. 281.69 (3) (b) 2. of the statutes is amended to read:
AB322,11,2524 281.69 (3) (b) 2. The restoration of a wetland, as defined in s. 23.32 (1), if the
25restoration will protect or improve a lake's water quality or its natural ecosystem.
AB322, s. 9
1Section 9. 281.98 (1) of the statutes is amended to read:
AB322,12,72 281.98 (1) Except as provided in ss. 281.47 (1) (d), 281.75 (19), and 281.99 (2),
3any person who violates this chapter or any rule promulgated or any plan approval,
4license or, special order, or water quality certification issued under this chapter shall
5forfeit not less than $10 nor more than $5,000 for each violation. Each day of
6continued violation is a separate offense. While an order is suspended, stayed, or
7enjoined, this penalty does not accrue.
AB322, s. 10 8Section 10. 299.95 of the statutes is amended to read:
AB322,12,24 9299.95 Enforcement; duty of department of justice; expenses. The
10attorney general shall enforce chs. 281 to 285 and 289 to 295 and this chapter, except
11ss. 281.48, 285.57, 285.59, and 299.64, and all rules, special orders, licenses, plan
12approvals and, permits, and water quality certifications of the department, except
13those promulgated or issued under ss. 281.48, 285.57, 285.59, and 299.64 and except
14as provided in s. 285.86. The circuit court for Dane county or for any other county
15where a violation occurred in whole or in part has jurisdiction to enforce chs. 281 to
16285 and 289 to 295 or this chapter or the rule, special order, license, plan approval
17or, permit, or certification by injunctional and other relief appropriate for
18enforcement. For purposes of this proceeding where chs. 281 to 285 and 289 to 295
19or this chapter or the rule, special order, license, plan approval or, permit or
20certification
prohibits in whole or in part any pollution, a violation is considered a
21public nuisance. The department of natural resources may enter into agreements
22with the department of justice to assist with the administration of chs. 281 to 285 and
23289 to 295 and this chapter. Any funds paid to the department of justice under these
24agreements shall be credited to the appropriation account under s. 20.455 (1) (k).
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