281.36(3r)(a)(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:
281.36(3r)(a)1.
1. Purchasing credits from a mitigation bank located in this state.
281.36(3r)(a)2.
2. Participating in the in lieu fee subprogram, if such a subprogram is established under
par. (e).
281.36(3r)(a)3.
3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.
281.36(3r)(b)
(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.
281.36(3r)(c)
(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.
281.36(3r)(cm)
(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:
281.36(3r)(cm)2.
2. A brief description of the mitigation bank and all of its bank sites.
281.36(3r)(cm)3.
3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.
281.36(3r)(d)1.1. 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.
281.36(3r)(d)2.
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.
281.36(3r)(e)
(e) As part of the mitigation program established under
par. (a), the department may establish an in lieu fee subprogram, 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 subprogram must be approved by the U.S. army corps of engineers. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the subprogram 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.
281.36(3s)(a)(a) As part of the mitigation program established under
sub. (3r) (a), the department shall establish an escrow subprogram. Under the subprogram, an applicant who is eligible for a wetland individual permit that will affect a nonfederal wetland may establish an escrow account or similar account into which the applicant deposits funds that are limited to being used to purchase credits from a mitigation bank located in this state. The applicant shall establish the account before the wetland individual permit is issued.
281.36(3s)(b)
(b) An account may be established under the escrow subprogram only if all of the following apply:
281.36(3s)(b)1.
1. There are fewer than 10 mitigation credits available from a federally approved wetland mitigation bank that is located in the state on the date a decision to issue a wetland individual permit is rendered under
sub. (3m) (i).
281.36(3s)(b)2.
2. A statewide in lieu fee subprogram approved by the U.S. army corps of engineers is not in effect on the date a decision to issue a wetland individual permit is rendered under
sub. (3m) (i).
281.36(3s)(c)
(c) To qualify as an account under the escrow subprogram, all of the following shall apply:
281.36(3s)(c)2.
2. A permit holder may not be authorized to withdraw funds under the terms of the account except as provided in
par. (f).
281.36(3s)(c)3.
3. The department must be authorized under the terms of the account to withdraw funds from the account for purchase of mitigation credits under
par. (g) and to withdraw funds and close the account under
par. (h).
281.36(3s)(d)
(d) The department shall establish requirements for calculating the amounts that must be placed in the accounts established under the escrow subprogram for mitigation payments and for any other fees that are necessary to cover the costs of banks or other agents in managing these accounts. For each account to be established, the department shall determine the number of mitigation credits to be purchased and shall estimate the cost of each credit to be purchased. The estimated cost shall be based on the market price, as determined by the department, for the purchase of an equivalent credit from a mitigation bank located in this state.
281.36(3s)(e)
(e) No person may withdraw funds that are deposited in an account established under the escrow subprogram unless
par. (f),
(g), or
(h) applies.
281.36(3s)(f)
(f) A permit holder shall withdraw funds from an account to purchase mitigation credits if the department notifies the permit holder that mitigation credits are available from a mitigation bank that is located in this state. The permit holder shall purchase the mitigation credits within 30 days after the notification.
281.36(3s)(g)
(g) If a permit holder fails to purchase the mitigation credits within the 30-day period specified under
par. (f), the department may withdraw funds from the account to purchase the credits.
281.36(3s)(h)
(h) Upon approval of the statewide in lieu fee subprogram under
sub. (3r) (e) by the U.S. army corps of engineers, the department shall discontinue the escrow subprogram by withdrawing all of the funds from all of the accounts established under the escrow subprogram, closing the accounts, and transferring all of the withdrawn funds to the in lieu fee subprogram under
sub. (3r) (e).
281.36(3t)
(3t) Rules for mitigation. The department shall promulgate rules to establish a process for the mitigation program under
sub. (3r). The rules shall address all of the following:
281.36(3t)(a)
(a) Requirements for the analysis of practicable alternatives that is included in an application for a wetland individual permit under
sub. (3m) (b).
281.36(3t)(b)
(b) The conditions under which credits may be purchased from a mitigation bank to comply with the mitigation program under
sub. (3r).
281.36(3t)(c)
(c) Enforcement of requirements under the mitigation program under
sub. (3r) that apply to mitigation projects and mitigation banks.
281.36(3t)(d)
(d) Baseline studies of wetlands that will be affected by the discharges and of sites for mitigation projects.
281.36(3t)(e)
(e) Plan and design requirements for mitigation projects and mitigation bank sites, which shall include requirements for relating the design of a mitigation project or a mitigation bank site to the hydrology of the watershed in which a mitigation project or mitigation bank site is located.
281.36(3t)(f)
(f) Standards for comparing wetlands that will be restored, enhanced, created, or preserved as a mitigation project or at a mitigation bank site to the wetlands that will be adversely affected by discharges, including all of the following:
281.36(3t)(f)1.
1. Consideration of the size, location, type and quality of the
wetlands.
281.36(3t)(f)2.
2. Consideration of the functional values performed by the
wetlands.
281.36(3t)(h)
(h) Standards for measuring the short-term and long-term success of mitigation projects and mitigation bank sites and requirements for the short-term and long-term monitoring of mitigation projects and mitigation bank sites.
281.36(3t)(i)
(i) Remedial actions to be taken by holders of wetland individual permits for mitigation projects that are not successful and actions to be taken by mitigation banks for mitigation projects performed by the mitigation banks that are not successful.
281.36(4)
(4) Exemptions. Except as provided in
sub. (5), the permitting requirement under
sub. (3b) does not apply to any discharge that is the result of any of the following activities:
281.36(4)(a)
(a) Normal farming, silviculture, or ranching activities.
281.36(4)(b)
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a wetland.
281.36(4)(c)
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
281.36(4)(e)
(e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:
281.36(4)(e)1.
1. That the flow and circulation patterns and chemical and biological characteristics of the affected wetland are not impaired.
281.36(4)(e)2.
2. That the reach of the affected wetland is not reduced.
281.36(4)(e)3.
3. That any adverse effect on the aquatic environment of the affected wetland is minimized to the degree required by the department.
281.36(4)(f)
(f) Maintenance, operation, or abandonment of a sedimentation or stormwater detention basin and associated conveyance features that were not originally constructed in a wetland.
281.36(5)
(5) Inapplicability of exemptions. Notwithstanding
sub. (4), a discharge that would be exempt under
sub. (4) is subject to the permitting requirement under
sub. (3b) if the discharge is incidental to an activity that has as its purpose bringing a wetland, or part of a wetland, into a use for which it was not previously subject and if the activity may do any of the following:
281.36(5)(a)
(a) Impair the flow or circulation of any wetland.
281.36(6)(a)(a) The department shall promulgate rules to interpret and implement the provisions under
subs. (4) and
(5). In promulgating these rules, the department shall do all of the following:
281.36(6)(a)1.
1. Make the rules consistent with existing federal law or interpretation.
281.36(6)(a)2.
2. Incorporate any applicable additional federal law or interpretation into the rules.
281.36(6)(b)
(b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.
281.36(8m)
(8m) Subsequent protection for wetlands. 281.36(8m)(a)1.1. A person who is the holder of a wetland individual permit that authorizes a mitigation project shall grant a conservation easement under
s. 700.40 to the department or shall execute a comparable legal instrument to ensure that a wetland that is being restored, enhanced, created, or preserved will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located. The department shall revoke the wetland individual permit if the holder of the individual permit fails to take these measures.
281.36(8m)(a)2.
2. A person who is restoring, enhancing, creating, or preserving a wetland to provide transferable credits as part of a wetlands mitigation bank shall grant a conservation easement under
s. 700.40 to the department or shall execute a comparable legal instrument to ensure that the wetland will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located.
281.36(8m)(b)
(b) Notwithstanding
par. (a), the department shall modify or release a conservation easement granted under
par. (a) or shall void a comparable legal instrument executed under
par. (a) if all of the following apply:
281.36(8m)(b)1.
1. The department determines that part or all of the restored, enhanced or created wetland ceases to be a wetland.
281.36(8m)(b)2.
2. The person who is required to grant the conservation easement or execute the legal instrument did not contribute to the loss of the wetland specified in
subd. 1.
281.36(8m)(b)3.
3. Any subsequent proprietor of or holder of interest in the property on which the wetland specified in
subd. 1. is located did not contribute to the loss of the wetland.
281.36(9)(a)(a) 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:
281.36(9)(a)1.
1. Enter and inspect any property on which is located a wetland or part of a wetland, for which an application has been submitted under
sub. (3g) or
(3m).
281.36(9)(a)2.
2. Enter and inspect any property on which is located a wetland to investigate a discharge that the department has reason to believe is in violation of this section.
281.36(9)(a)3.
3. Gain access to and inspect any records that a holder of a wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.
281.36(9)(d)
(d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under
par. (a).
281.36(9)(e)
(e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:
281.36(9)(e)2.
2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.
281.36(10)
(10) 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 otherwise regulate the discharge of dredged or fill material in a wetland under
ss. 59.692,
61.351,
61.353,
62.231,
62.233,
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.
281.36(11)(a)(a) The department shall set a surcharge fee to be charged for each application to proceed under a wetland general permit that is issued under
sub. (3g) (a) 4.,
5., or
6. The surcharge fee shall be set on an annual basis by the department and may not exceed more than 50 percent of the market price, as determined by the department, for the equivalent purchase of credits from a mitigation bank. These fees shall be credited to the appropriation account under
s. 20.370 (4) (bm) for the restoration and creation of wetlands. The department may enter into agreements with other entities for the restoration and creation of such wetlands.
281.36(11)(b)
(b) Any wetland that is restored or created using funding from the appropriation under
s. 20.370 (4) (bm) 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.
281.36(12)(a)(a)
Fees required. The department shall charge a fee for reviewing, investigating, and making decisions on applications to proceed under wetland general permits under
sub. (3g) and on applications for wetland individual permits under
sub. (3m). For an authorization to proceed under a wetland general permit, the application fee shall be $500. For a wetland individual permit, the application fee shall be $800.
281.36(12)(b)
(b)
Additional fee. The department may set and charge a fee in the amount necessary to meet the costs incurred by the department in reviewing mitigation that is conducted by mitigation banks.
281.36(12)(c)1.1. The department shall refund an application fee charged for a wetland individual permit under
par. (a) if the applicant requests a refund before the department determines that the application is complete. The department may not refund a fee after the department determines that the application is complete unless required to do so under a rule promulgated under
s. 299.05.
281.36(12)(c)2.
2. If the applicant submits an application for authorization to proceed under a wetland general or a wetland individual permit after the discharge is begun or after it is completed, the department shall charge an amount equal to twice the amount of the fee that it would have charged under this section.
281.36(12)(c)3.
3. The department may increase the fee specified in
par. (a) only if the increase is necessary to meet the costs of the department in performing the activities for which the fee is charged.
281.36(12)(d)1.1. The department, by rule, may charge a supplemental fee that is in addition to a fee charged under this subsection if all of the following apply:
