May 2001 Special Session Date of enactment:
May 7, 2001
Senate Bill 1 Date of publication*:
May 7, 2001
2001 WISCONSIN ACT 6
An Act to repeal 23.321 (1) (c); to renumber 23.321 (title) and (1) (title), (a) and (b), 23.321 (1) (d) to (f) and 23.321 (2); to renumber and amend 23.321 (2m) to (5); to amend 281.22 (title), 281.22 (3), 281.69 (3) (b) 2., 281.98 (1), 299.95 and 814.04 (intro.); and to create 281.01 (21), 281.22 (4) and 281.36 of the statutes; relating to: water quality certification for nonfederal wetlands, time limits and procedures for processing applications for water quality certifications that are applicable to wetlands, granting rule-making authority, and providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
6,1
Section
1. 23.321 (title) and (1) (title), (a) and (b) of the statutes are renumbered 281.37 (title) and (1) (title), (a) and (b).
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Section
2. 23.321 (1) (c) of the statutes is repealed.
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3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to (f).
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5. 23.321 (2m) to (5) of the statutes are renumbered 281.37 (2m) to (5), and 281.37 (2m) (a) and (b) 3., as renumbered, are amended to read:
281.37 (2m) (a) 1. A person who is the holder of a permit or other approval that authorizes a mitigation project shall grant a conservation easement under s. 700.40 to the department to ensure that a wetland that is being restored, enhanced, or created will not be destroyed or substantially degraded by any subsequent owner proprietor of or holder of interest in the property on which the wetland is located. The department shall revoke the permit or other approval if the holder of the permit or other approval fails to take these measures.
2. A person who is restoring, enhancing, or creating 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, to ensure that the wetland will not be destroyed or substantially degraded by any subsequent owner proprietor of or holder of interest in the property on which the wetland is located.
(b) 3. Any subsequent owner 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.
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6. 281.01 (21) of the statutes is created to read:
281.01 (21) "Wetland" has the meaning given in s. 23.32 (1).
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7. 281.22 (title) of the statutes is amended to read:
281.22 (title) Fees and time limits for water quality determinations for wetlands.
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8. 281.22 (3) of the statutes is amended to read:
281.22 (3) Exemptions from fees. This section does Subsections (1), (2) and (2m) do not apply to any federal agency or state agency.
6,9
Section
9. 281.22 (4) of the statutes is created to read:
281.22 (4) Time limits. The department shall promulgate a rule to establish time limits for the steps involved in processing, approving, and denying applications for determinations that the department makes as to whether projects comply with the standards of water quality established by rules promulgated under s. 281.15 that are applicable to wetlands other than nonfederal wetlands, as defined in s. 281.36 (1) (c). Upon referral of any proposed rule under this subsection to the presiding officer of each house of the legislature under s. 227.19 (2), the presiding officers shall refer the proposed rule to a senate committee and an assembly committee concerned with the environment.
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10. 281.36 of the statutes is created to read:
281.36 Water quality certification for nonfederal wetlands. (1) Definitions. In this section:
(a) "Additional federal law or interpretation" means any of the following:
1. An amendment to
33 USC 1344 (f) that becomes effective after January 9, 2001.
2. Any other federal statutory provision that affects the exemptions under
33 USC 1344 (f) and that becomes effective after January 9, 2001.
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in subds. 1. to 3., that applies to wetlands located in this state, and that is issued after January 9, 2001.
(am) "Area of special natural resource interest" has the meaning given in s. 281.37 (1) (a).
(b) "Existing federal law or interpretation" means any of the following:
1.
33 USC 1344 (f), as amended to January 8, 2001.
2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in subd. 1. or 2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
(bg) "Federal transportation agency" means the federal aviation administration, the federal highway administration, or the federal railroad administration.
(c) "Nonfederal wetland" means a wetland that is identified as such under sub. (1m).
(cm) "Political subdivision" means a city, village, town, or county.
(cr) "State transportation agency" means the department of transportation or the office of the commissioner of railroads.
(d) "Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15.
(1m) Determination of nonfederal wetlands. (a) A wetland is identified as a nonfederal wetland if either of the following applies:
1. Any discharges of dredged or fill material into the wetland are determined not to be subject to regulation under
33 USC 1344 due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
2. The wetland is determined to be a nonnavigable, intrastate, and isolated wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
(b) For the purpose of identifying wetlands under par. (a):
1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.
2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.
(2) Certification requirement. (a) No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.
(b) 1. The department shall approve or deny a complete application for a water quality certification under this section within 120 days after the date the department determines that a complete application for the certification has been submitted unless the applicant and the department agree to extend the time period. The department may not determine an application to be complete until the requirements under s. 1.11 have been met and until all of the items of information for the water quality certification and for any associated permits or other approvals have been submitted to the department. If the department fails to approve or deny the complete application within the applicable time period, the applicant may bring an action for mandamus to compel the department to approve or deny the application. If the court grants the mandamus, the department shall approve or deny the application within 30 days after the mandamus is granted and the court shall award the applicant reasonable attorney fees and court costs incurred in bringing the action.
2. For purposes of subd. 1., the department shall initially determine whether a complete application has been submitted and, no later than 30 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this subdivision. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the the application has been submitted.
(3) Delineation procedures. For purposes of delineating the boundary of a nonfederal wetland, the department and the person who is applying for or who holds a water quality certification under this section shall use the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department by rule designates that edition as the one to be used under this subsection. If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after the effective date of this paragraph .... [revisor inserts date], the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.
(4) Exemptions. Except as provided in sub. (5), the certification requirement under sub. (2) does not apply to any discharge that is the result of any of the following activities:
(a) Normal farming, silviculture, or ranching activities.
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
(d) Maintenance of drainage ditches.
(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:
1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.
2. That the reach of the affected nonfederal wetland is not reduced.
3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.
(5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification requirement under sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:
(a) Impair the flow or circulation of any nonfederal wetland.
