LRB-2622/2
MGG:kmg/wlj/hmh:pg
2001 - 2002 LEGISLATURE
March 15, 2001 - Introduced by Representatives Plouff, Black, Meyerhofer,
Ryba, Young, Berceau, J. Lehman, Hebl, Lassa, Miller, Colon,
Morris-Tatum, Kreuser, Sinicki, Krug, Bock, Richards, Huber, Carpenter,
Boyle, Pocan and
Balow, cosponsored by Senators Baumgart, Risser, Wirch,
Burke, Schultz, Robson and Moen. Referred to Committee on Environment.
AB204,1,5
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 and granting rule-making authority.
Analysis by the Legislative Reference Bureau
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, an
activity 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. If federal law is subsequently modified, DNR may incorporate
the modifications into the rules. The bill also creates a temporary process to be used
between the date the bill becomes law and the date the rules are promulgated for
determining whether an activity is exempt. During this time, no person may
discharge into a nonfederal wetland based on the wetland being exempt unless the
person demonstrates to DNR that the activity would qualify as an exempted activity
under federal law if the wetland were subject to the ACE permitting process.
As under federal law, this bill provides that DNR may issue general permits for
types of discharges that are similar in nature. A general permit allows any person
to carry out the type of discharge, subject to the general permit as opposed to an
individual permit that is issued to a specific person.
Under current rules promulgated by DNR, discharges into certain artificial
wetlands are exempt from meeting the water quality standards that apply to
wetlands if the person seeking permission for the discharge notifies DNR at least 15
days before beginning the discharge, and DNR does not notify the person within 15
days after receiving the notification that the artificial wetland has a significant
functional value as a wetland. Under these rules, an artificial wetland is an area
where water-based vegetation is present and for which there is no prior wetland or
stream history. Wetlands that are eligible for this exemption include certain
sedimentation and storm water detention basins, sewage lagoons, and farm
drainage and roadside ditches. This bill incorporates these provisions into the
statutes and expands the exemption to include all water quality standards. The bill
authorizes DNR to inspect any property on which a nonfederal wetland that is
subject to a water quality certification is located, to inspect any property to
investigate a discharge of dredged or fill material that DNR suspects to be in
violation of the statutes regulating nonfederal wetlands, and to gain access to inspect
any records that a holder of a water quality certification for a nonfederal wetland
must keep.
Finally, the bill requires that certain procedures be used to resolve disputes
concerning the boundaries of nonfederal wetlands that may occur between DNR and
applicants for, or holders of, water quality certifications for discharges into
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:
AB204, 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).
AB204, s. 2
3Section
2. 23.321 (1) (c) of the statutes is repealed.
AB204, s. 3
4Section
3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to
5(f).
AB204, 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:
AB204,4,210
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
12to the department to ensure that a wetland that is being restored, enhanced
, or
13created will not be destroyed or substantially degraded by any subsequent
owner 14proprietor of or holder of interest in the property on which the wetland is located.
1The department shall revoke the permit or other approval if the holder of the permit
2or other approval fails to take these measures.
AB204,4,73
2. A person who is restoring, enhancing
, or creating a wetland to provide
4transferable credits as part of a wetlands mitigation bank shall grant a conservation
5easement under s. 700.40 to the department, to ensure that the wetland will not be
6destroyed or substantially degraded by any subsequent
owner proprietor of or holder
7of interest in the property on which the wetland is located.
AB204,4,108
(b) 3. Any subsequent
owner proprietor of or holder of interest in the property
9on which the wetland specified in subd. 1. is located did not contribute to the loss of
10the wetland.
AB204, s. 6
11Section
6. 281.01 (21) of the statutes is created to read:
AB204,4,1212
281.01
(21) "Wetland" has the meaning given in s. 23.32 (1).
AB204, s. 7
13Section
7. 281.36 of the statutes is created to read:
AB204,4,15
14281.36 Water quality certification for nonfederal wetlands. (1) 15Definitions. In this section:
AB204,4,1616
(a) "Artificial wetland" has the meaning specified by the department by rule.
AB204,4,1917
(b) "Federal law" means any regulation, rule, memorandum of agreement,
18guidance letter, or other provision established by a federal agency that has the effect
19of law.
AB204,4,2320
(c) "Nonfederal wetland" means a wetland to which the federal permitting
21process under
33 USC 1344 does not apply due to the decision in Solid Waste Agency
22of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan.
239, 2001) but to which such permitting process did apply on January 8, 2001.
AB204,4,2524
(d) "Water quality standards" means water quality standards set under rules
25promulgated by the department under s. 281.15.
AB204,5,1
1(e) "Working day" has the meaning given in s. 227.01 (14).
AB204,5,8
2(2) Certification requirement. No person may discharge dredged or fill
3material into a nonfederal wetland unless the discharge is authorized by a water
4quality certification issued by the department under this section. No person may
5violate any condition imposed by the department in a water quality certification
6under this section. The department may not issue a water quality certification under
7this section unless it determines that the discharge will comply with all applicable
8water quality standards.
AB204,5,17
9(3) Delineation procedures. If there is a dispute between the department and
10a person who is applying for or who holds a water quality certification issued under
11this section as to the boundary delineation of a nonfederal wetland, the department
12and the person shall use the procedures contained in the wetlands delineation
13manual published by the U.S. army corps of engineers in resolving the dispute. The
14department shall use the 1987 edition of the manual unless the U.S. army corps of
15engineers publishes an edition of the manual after the effective date of this
16subsection .... [revisor inserts date], and the department by rule designates that
17edition as the one to be used under this subsection.
AB204,5,20
18(4) Exemptions. Except as provided in sub. (5), the certification requirement
19under sub. (2) does not apply to any discharge that is the result of any of the following
20activities:
AB204,5,2121
(a) Normal farming, silviculture, or ranching activities.
AB204,5,2322
(b) Maintenance, emergency repair, or reconstruction of damaged parts of
23structures that are in use in a nonfederal wetland.
AB204,5,2524
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation
25ditches.
AB204,6,1
1(d) Maintenance of drainage ditches.
AB204,6,42
(e) Construction or maintenance of farm roads, forest roads, or temporary
3mining roads that is performed in accordance with best management practices, as
4determined by the department, to ensure all of the following:
AB204,6,65
1. That the flow and circulation patterns and chemical and biological
6characteristics of the affected nonfederal wetland are not impaired.
AB204,6,77
2. That the reach of the affected nonfederal wetland is not reduced.
AB204,6,98
3. That any adverse effect on the aquatic environment of the affected
9nonfederal wetland is minimized to the degree required by the department.
AB204,6,14
10(5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that
11would be exempt under sub. (4) is subject to the certification requirement under sub.
12(2) if the discharge is incidental to an activity that has as its purpose bringing a
13nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not
14previously subject and if the activity may do any of the following:
AB204,6,1515
(a) Impair the flow or circulation of any nonfederal wetland.
AB204,6,1616
(b) Reduce the reach of any nonfederal wetland.
AB204,7,2
17(6) Rules for exemptions. The department shall promulgate rules to interpret
18and implement the provisions under subs. (4) and (5). The rules shall be consistent
19with
33 USC 1344 (f), as amended to the effective date of this subsection .... [revisor
20inserts date], and with any other federal law that is promulgated or adopted
21pursuant to that subsection or that is used to implement that subsection and that is
22in effect on the effective date of this subsection .... [revisor inserts date]. If
33 USC
231344 (f) or the other federal law is amended or modified after the effective date of this
24subsection .... [revisor inserts date], the department may incorporate any of these
1amendments or modifications into the rules promulgated under this subsection but
2may not otherwise amend the rules.
AB204,7,5
3(7) Exemptions; artificial wetlands. (a) The certification requirement under
4sub. (2) does not apply to a discharge into an artificial wetland identified in par. (b)
5if all of the following apply:
AB204,7,76
1. The person who proposes to make the discharge notifies the department of
7the discharge at least 15 working days before beginning the discharge.
AB204,7,108
2. Within 15 working days after the date on which the department receives the
9notice under subd. 1., the department does not notify the person that the artificial
10wetland has a significant functional value as a wetland.
AB204,7,1211
(b) To qualify for the exemption under par. (a), an artificial wetland must be one
12or more of the following:
AB204,7,1513
1. A sedimentation or storm water detention basin or associated conveyance
14feature that is operated and maintained only for sediment detention or flood storage
15purposes.
AB204,7,1716
2. An active sewage lagoon, cooling pond, waste disposal pit, fish rearing pond,
17or landscape pond.
AB204,7,1818
3. An actively maintained farm drainage or roadside ditch.
AB204,7,1919
4. An active nonmetallic mining operation.
AB204,7,24
20(8) General water quality certifications. (a) In lieu of issuing individual
21water quality certifications under this section, the department may issue a general
22water quality certification for types of discharges that the department determines
23are similar in nature or for the purpose of simplifying the certification process if the
24discharges meet all of the following standards:
AB204,8,2
11. The discharges will cause only minimal adverse environmental effects, as
2determined by the department, if they are performed separately.
AB204,8,43
2. The cumulative adverse effect on the environment by the discharges will be
4minimal, as determined by the department.
AB204,8,65
(b) No general water quality certification issued under this section may be
6effective for more than 5 years after the date of its issuance.
AB204,8,137
(c) If the department determines that any of the discharges under a general
8water quality certification issued under this section fails to meet any of the standards
9in par. (a), the department shall modify the certification so that the discharges meet
10all of the standards. If the department cannot modify the certification so that all of
11the standards will be met or if the department determines that the discharges subject
12to the general certification are more appropriately certified by using individual
13water quality certifications, the department shall revoke the general certification.
AB204,8,1614
(d) Before issuing, modifying, or revoking a general water quality certification
15under this subsection, the department shall provide notice and a hearing under ss.
16227.17 and 227.18.
AB204,8,19
17(9) Inspection authority. (a)
For purposes of enforcing this section, any
18employee or other representative of the department, upon presenting his or her
19credentials, may do any of the following:
AB204,8,2220
1. Enter and inspect any property on which is located a nonfederal wetland, or
21part of a nonfederal wetland, that is subject to a water quality certification issued
22under this section.
AB204,8,2523
2. Enter and inspect any property on which is located a wetland and where the
24department has reasonable suspicion that a violation of this section has occurred or
25is occurring to investigate a discharge of dredged or fill material.
AB204,9,2
13. Gain access to and inspect any records that the department requires a holder
2of a water quality certification to keep.
AB204,9,63
(b) Any employee or representative of the department may exercise the
4authority granted under par. (a) 1., 2., or 3. only during reasonable hours and only
5after the department has provided reasonable advance notice to the person owning
6the property involved or to the holder of the water quality certification.
AB204,9,107
(c) An employee or representative of the department may not gain access to or
8inspect any records as authorized under par. (a) 3. unless the holder of the water
9quality certification, or the holder's designee, is present or unless the holder of the
10certification waives this requirement.