AB322: Bill Text

LRB-2921/3

MGG/RNK:kmg/wlj/hmh/cs:pg

2001 - 2002 LEGISLATURE

2001 Assembly BILL 322

April 18, 2001 - Introduced by Representatives Kedzie, Gronemus, Johnsrud, Ott, Vrakas, Gunderson and Jensen. Referred to Committee on Environment.

AB322,1,5 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 281.69 (3) (b) 2., 281.98 (1) and 299.95; and to create 281.01 (21) and 281.36 of the statutes; relating to: water quality certification for nonfederal 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 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).

AB322, s. 2 Section 2. 23.321 (1) (c) of the statutes is repealed.

AB322, s. 3 Section 3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to (f).

AB322, s. 4 Section 4. 23.321 (2) of the statutes, as created by 1999 Wisconsin Act 147, is renumbered 281.37 (2).

AB322, s. 5 Section 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:

AB322,4,5 281.37 (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.

AB322,4,10 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.

AB322,4,13 (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.

AB322, s. 6 Section 6. 281.01 (21) of the statutes is created to read:

AB322,4,15 281.01 (21) "Wetland" has the meaning given in s. 23.32 (1).

AB322, s. 7 Section 7. 281.36 of the statutes is created to read:

AB322,4,18 281.36 Water quality certification for nonfederal wetlands. (1) Definitions. In this section:

AB322,4,19 (a) "Additional federal law or interpretation" means any of the following:

AB322,4,21 1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.

AB322,4,23 2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.

AB322,5,3 3. A regulation, rule, memorandum of agreement, guidance letter, 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.

AB322,5,6 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.

AB322,5,7 (b) "Existing federal law or interpretation" means any of the following:

AB322,5,8 1. 33 USC 1344 (f), as amended to January 8, 2001.

AB322,5,12 2. A regulation, rule, memorandum of agreement, guidance letter, 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.

AB322,5,16 3. 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. and 2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.

AB322,5,19 (bn) "Local governmental unit" means a city, village, town, county, or special purpose district; and agency or corporation of a city, village, town, county, or special purpose district; or a combination or subunit of any of the foregoing.

AB322,5,21 (c) "Nonfederal wetland" means a wetland that is identified as such under sub. (1m).

AB322,5,23 (d) "Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15.

AB322,5,25 (1m) Determination of nonfederal wetlands. (a) A wetland is identified as a nonfederal wetland if either of the following applies:

AB322,6,6 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.

AB322,6,11 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.

AB322,6,12 (b) For the purpose of identifying wetlands under par. (a):

AB322,6,14 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.

AB322,6,17 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.

AB322,6,24 (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.

AB322,7,3 (b) The department shall promulgate a rule to establish time limits for the steps involved in processing applications and issuing determinations that approve or deny applications for water quality certifications issued under this section.

AB322,7,19 (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.

AB322,7,22 (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:

AB322,7,23 (a) Normal farming, silviculture, or ranching activities.

AB322,7,25 (b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.

AB322,8,2 (c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.

AB322,8,3 (d) Maintenance of drainage ditches.

AB322,8,6 (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:

AB322,8,8 1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

AB322,8,9 2. That the reach of the affected nonfederal wetland is not reduced.

AB322,8,11 3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.

AB322,8,16 (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:

AB322,8,17 (a) Impair the flow or circulation of any nonfederal wetland.

AB322,8,18 (b) Reduce the reach of any nonfederal wetland.

AB322,8,23 (6) Rules for exemptions. The department shall promulgate rules to interpret and implement the provisions under subs. (4) and (5). The rules shall be consistent with all existing federal laws or interpretations. The department shall incorporate all additional federal laws or interpretations into the rules that the department promulgates under this subsection and may not otherwise amend the rules.

AB322,9,4 (7) Rules prohibition. The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if any of the following apply:

AB322,9,8 (a) The discharge is required by the federal government, the state, or a local governmental unit in order for the person submitting the application for the water quality certification to receive approval from the federal government, state, or local governmental unit for an activity that serves a public purpose.

AB322,9,10 (b) The federal government, the state, or a local governmental unit determines that the discharge is necessary to ensure public safety.