281.36(3q)(a)(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.
281.36(3q)(b) (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:
281.36(3q)(b)1. 1. The issuance, denial, or modification of any wetland individual permit issued under this section.
281.36(3q)(b)2. 2. The imposition of, or failure to impose, a condition on any wetland individual permit issued under this section.
281.36(3q)(c) (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:
281.36(3q)(c)1. 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.
281.36(3q)(c)2. 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.
281.36(3q)(c)3. 3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner's objection.
281.36(3q)(d) (d) Stays.
281.36(3q)(d)1.1. 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.
281.36(3q)(d)2. 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.
281.36(3q)(e) (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.
281.36(3q)(f) (f) Action on petition.
281.36(3q)(f)1m.1m. 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:
281.36(3q)(f)1m.a. a. The petitioner is not the applicant, and the petition does not comply with the requirements of par. (c).
281.36(3q)(f)1m.b. b. 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.
281.36(3q)(f)3. 3. If the department denies the petition, the department shall send the petitioner the denial in writing, stating the reasons for the denial.
281.36(3q)(f)4. 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.
281.36(3q)(g) (g) Administrative hearing.
281.36(3q)(g)1.1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.
281.36(3q)(g)2. 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.
281.36(3q)(g)3. 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.
281.36(3q)(g)4. 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:
281.36(3q)(g)4.a. a. The applicant.
281.36(3q)(g)4.b. b. Each petitioner, if other than the applicant.
281.36(3q)(g)4.c. c. Any other persons required to receive notice as provided under sub. (3p).
281.36(3q)(g)5. 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.
281.36(3q)(h) (h) Judicial review.
281.36(3q)(h)1.1. 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.
281.36(3q)(h)2. 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.
281.36(3r) (3r)Mitigation; in lieu fee subprogram.
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)(a)4. 4. Participating in the escrow subprogram under sub. (3s).
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)1. 1. The name of the sponsor of the proposed mitigation bank.
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)(cm)4. 4. An address to which any comments shall be submitted.
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) (3s)Mitigation; escrow subprogram.
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)1. 1. The department must be a party to the account.
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)(d) (d) Maintenance of drainage 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(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(5)(b) (b) Reduce the reach of any wetland.
281.36(6) (6)Rules for exemptions.
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.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)