MY1 SB1: Bill Text

LRB-3093/8

MGG:kg/wlj/hmh/cs:jf

May 2001 Special Session

2001 - 2002 LEGISLATURE

Senate BILL 1

May 1, 2001 - Introduced by Committee onSenate Organization, by request of Governor Scott McCallum. Referred to Committee on Environmental Resources.

SB1,1,8 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.

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, 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 certification 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.

For an individual certification for a nonfederal wetland, DNR must approve or deny the certification within 120 days after the completed application for the certification is submitted unless the applicant and DNR agree to an extension. The bill imposes specific requirements on DNR for determining whether the application is complete. If DNR fails to meet the applicable deadline, the applicant may petition a court to compel DNR to approve or deny the application. If the court grants the petition, DNR must comply within 30 days after the granting of the petition, and the applicant shall be awarded reasonable attorney fees and court costs. The bill also requires DNR to promulgate a rule to establish time limits for determinations that DNR makes as to whether projects comply with water quality standards that are applicable to wetlands that are not nonfederal wetlands.

The bill also prohibits DNR from promulgating a rule that requires an applicant for a water quality certification for a nonfederal wetland that is less than one acre in size and that is not in an "area of special natural resource interest" to submit information concerning practicable alternatives to the discharge that exist or that may be viable if a local governmental unit, a state transportation agency, or a federal transportation agency makes a determination that the discharge is necessary for public safety. Current law defines "an area of special natural resource interest" as being an area that has significant ecological, cultural, aesthetic, educational, recreational, or scientific values and specifically lists certain areas. The areas listed include Lake Superior, Lake Michigan, the Mississippi River, the Lower Wisconsin State Riverway, fish and wildlife refuges, and state parks and forests. The bill defines a state transportation agency to be the state department of transportation or the office of the commissioner of railroads, and defines a federal transportation agency to be the federal aviation administration, the federal highway administration, or the federal railroad administration.

Under the bill, a local governmental unit or a state transportation agency must make a determination of public safety if requested to do so by an applicant for a water quality certification for a nonfederal wetland. The bill provides specific procedural and judicial review provisions for these determinations and allows any aggrieved party or DNR to seek judicial review of these determinations. The bill also authorizes an applicant to seek such a determination from a federal transportation agency.

The bill also provides that, even if an applicant for a water quality certification for a nonfederal wetland receives such a determination, DNR may proceed on its own to determine whether there is a practicable alternative. Under this procedure, DNR must first look for a practicable alternative that will not conflict with the determination that the discharge is necessary for public safety on the land where the nonfederal wetland is located. If there is no practicable alternative on that land, DNR may look for a nonconflicting practicable alternative on land where the nonfederal wetland is not located. If DNR finds that no such practicable alternative exists, it may require the applicant to implement a wetland mitigation project. A wetland mitigation project is one that restores, enhances, or creates another wetland to compensate for the adverse impact to the nonfederal wetland.

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 also requires that certain procedures be used to delineate the boundaries of nonfederal wetlands.

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 that applies to that wetland is submitted and ending on the 30th day immediately following completion of the discharge or of any conditions imposed under the certification, or, if the application is denied or withdrawn, on the date of denial or withdrawal. DNR may also inspect any property to investigate a discharge of dredged or fill material that DNR has reason to believe is in violation of the statutes regulating nonfederal wetlands. The bill specifies a procedure DNR must follow in investigating these possible violations. 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.

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:

SB1, 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).

SB1, s. 2 Section 2. 23.321 (1) (c) of the statutes is repealed.

SB1, s. 3 Section 3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to (f).

SB1, s. 4 Section 4. 23.321 (2) of the statutes, as created by 1999 Wisconsin Act 147, is renumbered 281.37 (2).

SB1, 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:

SB1,5,4 281.37 (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.

SB1,5,9 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.

SB1,5,12 (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.

SB1, s. 6 Section 6. 281.01 (21) of the statutes is created to read:

SB1,5,14 281.01 (21) "Wetland" has the meaning given in s. 23.32 (1).

SB1, s. 7 Section 7. 281.22 (title) of the statutes is amended to read:

SB1,5,17 281.22 (title) Fees and time limits for water quality determinations for wetlands.

SB1, s. 8 Section 8. 281.22 (3) of the statutes is amended to read:

SB1,5,20 281.22 (3) Exemptions from fees. This section does Subsections (1), (2) and (2m) do not apply to any federal agency or state agency.

SB1, s. 9 Section 9. 281.22 (4) of the statutes is created to read:

SB1,6,5 281.22 (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.

SB1, s. 10 Section 10. 281.36 of the statutes is created to read:

SB1,6,8 281.36 Water quality certification for nonfederal wetlands. (1) Definitions. In this section:

SB1,6,9 (a) "Additional federal law or interpretation" means any of the following:

SB1,6,11 1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.

SB1,6,13 2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.

SB1,6,18 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.

SB1,6,21 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.

SB1,6,23 (am) "Area of special natural resource interest" has the meaning given in s. 281.37 (1) (a).

SB1,6,24 (b) "Existing federal law or interpretation" means any of the following:

SB1,6,25 1. 33 USC 1344 (f), as amended to January 8, 2001.

SB1,7,5 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.

SB1,7,9 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.

SB1,7,12 (bg) "Federal transportation agency" means the federal aviation administration, the federal highway administration, or the federal railroad administration.