LRB-3093/8
MGG:kg/wlj/hmh/cs:jf
May 2001 Special Session
2001 - 2002 LEGISLATURE
May 1, 2001 - Introduced by
Committee onSenate Organization, by request of
Governor Scott McCallum. Referred to Committee on Environmental
Resources.
SB1,1,8
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 281.22 (title), 281.22 (3), 281.69 (3) (b) 2., 281.98 (1), 299.95
4and 814.04 (intro.); and
to create 281.01 (21), 281.22 (4) and 281.36 of the
5statutes;
relating to: water quality certification for nonfederal wetlands, time
6limits and procedures for processing applications for water quality
7certifications that are applicable to wetlands, granting rule-making authority,
8and 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
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).
SB1, s. 2
3Section
2. 23.321 (1) (c) of the statutes is repealed.
SB1, s. 3
4Section
3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to
5(f).
SB1, 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:
SB1,5,410
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
1created will not be destroyed or substantially degraded by any subsequent
owner 2proprietor of or holder of interest in the property on which the wetland is located.
3The department shall revoke the permit or other approval if the holder of the permit
4or other approval fails to take these measures.
SB1,5,95
2. A person who is restoring, enhancing
, or creating a wetland to provide
6transferable credits as part of a wetlands mitigation bank shall grant a conservation
7easement under s. 700.40 to the department, to ensure that the wetland will not be
8destroyed or substantially degraded by any subsequent
owner proprietor of or holder
9of interest in the property on which the wetland is located.
SB1,5,1210
(b) 3. Any subsequent
owner proprietor of or holder of interest in the property
11on which the wetland specified in subd. 1. is located did not contribute to the loss of
12the wetland.
SB1, s. 6
13Section
6. 281.01 (21) of the statutes is created to read:
SB1,5,1414
281.01
(21) "Wetland" has the meaning given in s. 23.32 (1).
SB1, s. 7
15Section
7. 281.22 (title) of the statutes is amended to read:
SB1,5,17
16281.22 (title)
Fees and time limits for water quality determinations for
17wetlands.
SB1, s. 8
18Section
8. 281.22 (3) of the statutes is amended to read:
SB1,5,2019
281.22
(3) Exemptions from fees. This section does Subsections (1), (2) and
20(2m) do not apply to any federal agency or state agency.
SB1, s. 9
21Section
9. 281.22 (4) of the statutes is created to read:
SB1,6,522
281.22
(4) Time limits. The department shall promulgate a rule to establish
23time limits for the steps involved in processing, approving, and denying applications
24for determinations that the department makes as to whether projects comply with
25the standards of water quality established by rules promulgated under s. 281.15 that
1are applicable to wetlands other than nonfederal wetlands, as defined in s. 281.36
2(1) (c). Upon referral of any proposed rule under this subsection to the presiding
3officer of each house of the legislature under s. 227.19 (2), the presiding officers shall
4refer the proposed rule to a senate committee and an assembly committee concerned
5with the environment.
SB1, s. 10
6Section
10. 281.36 of the statutes is created to read:
SB1,6,8
7281.36 Water quality certification for nonfederal wetlands. (1) 8Definitions. In this section:
SB1,6,99
(a) "Additional federal law or interpretation" means any of the following:
SB1,6,11101. An amendment to
33 USC 1344 (f) that becomes effective after January 9,
112001.
SB1,6,13122. Any other federal statutory provision that affects the exemptions under
33
13USC 1344 (f) and that becomes effective after January 9, 2001.
SB1,6,1814
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive
15document, or other provision established by a federal agency that is promulgated or
16adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC
171344 (f), that applies to wetlands located in this state, and that becomes effective
18after January 9, 2001.
SB1,6,2119
4. A decision issued by a federal district or federal appellate court that affects
20the application of a federal amendment or provision described in subds. 1. to 3., that
21applies to wetlands located in this state, and that is issued after January 9, 2001.
SB1,6,2322
(am) "Area of special natural resource interest" has the meaning given in s.
23281.37 (1) (a).
SB1,6,2424
(b) "Existing federal law or interpretation" means any of the following:
SB1,6,25251.
33 USC 1344 (f), as amended to January 8, 2001.
SB1,7,5
12. A regulation, rule, memorandum of agreement, guidance letter, interpretive
2document, or other provision established by a federal agency that is promulgated or
3adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC
41344 (f), that applies to wetlands located in this state, and that is in effect on January
58, 2001.
SB1,7,96
3. A decision issued by a federal district or federal appellate court that affects
7the application of a federal statute or provision described in subd. 1. or 2., that
8applies to wetlands located in this state, and that is issued on or before January 8,
92001.
SB1,7,1210
(bg) "Federal transportation agency" means the federal aviation
11administration, the federal highway administration, or the federal railroad
12administration.
SB1,7,1413
(c) "Nonfederal wetland" means a wetland that is identified as such under sub.
14(1m).
SB1,7,1515
(cm) "Political subdivision" means a city, village, town, or county.
SB1,7,1716
(cr) "State transportation agency" means the department of transportation or
17the office of the commissioner of railroads.
SB1,7,1918
(d) "Water quality standards" means water quality standards set under rules
19promulgated by the department under s. 281.15.
SB1,7,21
20(1m) Determination of nonfederal wetlands. (a) A wetland is identified as
21a nonfederal wetland if either of the following applies:
SB1,8,222
1. Any discharges of dredged or fill material into the wetland are determined
23not to be subject to regulation under
33 USC 1344 due to the decision in Solid Waste
24Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S.
25Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency
1or by a federal district or federal appellate court that applies to wetlands located in
2this state.
SB1,8,73
2. The wetland is determined to be a nonnavigable, intrastate, and isolated
4wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S.
5Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent
6interpretations of that decision by a federal agency or by a federal district or federal
7appellate court that applies to wetlands located in this state.
SB1,8,88
(b) For the purpose of identifying wetlands under par. (a):
SB1,8,109
1. If the U.S. army corps of engineers issues a determination as to whether a
10wetland is a nonfederal wetland, the department shall adopt that determination.
SB1,8,1311
2. If the U.S. army corps of engineers does not issue a determination as to
12whether a wetland is a nonfederal wetland, the department shall determine whether
13the wetland is a nonfederal wetland.
SB1,8,20
14(2) Certification requirement. (a) No person may discharge dredged or fill
15material into a nonfederal wetland unless the discharge is authorized by a water
16quality certification issued by the department under this section. No person may
17violate any condition imposed by the department in a water quality certification
18under this section. The department may not issue a water quality certification under
19this section unless it determines that the discharge will comply with all applicable
20water quality standards.
SB1,9,821
(b) 1. The department shall approve or deny a complete application for a water
22quality certification under this section within 120 days after the date the department
23determines that a complete application for the certification has been submitted
24unless the applicant and the department agree to extend the time period. The
25department may not determine an application to be complete until the requirements
1under s. 1.11 have been met and until all of the items of information for the water
2quality certification and for any associated permits or other approvals have been
3submitted to the department. If the department fails to approve or deny the complete
4application within the applicable time period, the applicant may bring an action for
5mandamus to compel the department to approve or deny the application. If the court
6grants the mandamus, the department shall approve or deny the application within
730 days after the mandamus is granted and the court shall award the applicant
8reasonable attorney fees and court costs incurred in bringing the action.
SB1,9,229
2. For purposes of subd. 1., the department shall initially determine whether
10a complete application has been submitted and, no later than 30 days after the
11application is submitted, notify the applicant in writing about the initial
12determination of completeness. If the department determines that the application
13is incomplete, the notice shall state the reason for the determination and the specific
14items of information necessary to make the application complete. An applicant may
15supplement and resubmit an application that the department has determined to be
16incomplete. There is no limit on the number of times that an applicant may resubmit
17an application that the department has determined to be incomplete under this
18subdivision. The department may not demand items of information that are not
19specified in the notice as a condition for determining whether the application is
20complete unless both the department and the applicant agree or unless the applicant
21makes material additions or alterations to the project for which the the application
22has been submitted.
SB1,9,25
23(3) Delineation procedures. For purposes of delineating the boundary of a
24nonfederal wetland, the department and the person who is applying for or who holds
25a water quality certification under this section shall use the procedures contained
1in the wetlands delineation manual published by the U.S. army corps of engineers.
2The edition of the manual that shall be used shall be the 1987 edition of the manual
3and any document that the U.S. army corps of engineers issues interpreting that
4manual, unless the U.S. army corps of engineers publishes an edition of the manual
5after January 9, 2001, and the department by rule designates that edition as the one
6to be used under this subsection. If the U.S. army corps of engineers issues a
7guidance document interpreting the edition of the wetlands delineation manual that
8the department is required to use under this subsection and if that guidance
9document is issued after the effective date of this paragraph .... [revisor inserts date],
10the department shall notify the appropriate standing committee of each house of the
11legislature, as determined by the speaker of the assembly and the president of the
12senate, of the issuance of the guidance document and whether the department
13intends to promulgate a rule incorporating the provisions of the guidance document.
SB1,10,16
14(4) Exemptions. Except as provided in sub. (5), the certification requirement
15under sub. (2) does not apply to any discharge that is the result of any of the following
16activities:
SB1,10,1717
(a) Normal farming, silviculture, or ranching activities.
SB1,10,1918
(b) Maintenance, emergency repair, or reconstruction of damaged parts of
19structures that are in use in a nonfederal wetland.
SB1,10,2120
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation
21ditches.
SB1,10,2222
(d) Maintenance of drainage ditches.
SB1,10,2523
(e) Construction or maintenance of farm roads, forest roads, or temporary
24mining roads that is performed in accordance with best management practices, as
25determined by the department, to ensure all of the following:
SB1,11,2
11. That the flow and circulation patterns and chemical and biological
2characteristics of the affected nonfederal wetland are not impaired.
SB1,11,33
2. That the reach of the affected nonfederal wetland is not reduced.
SB1,11,54
3. That any adverse effect on the aquatic environment of the affected
5nonfederal wetland is minimized to the degree required by the department.
SB1,11,10
6(5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that
7would be exempt under sub. (4) is subject to the certification requirement under sub.
8(2) if the discharge is incidental to an activity that has as its purpose bringing a
9nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not
10previously subject and if the activity may do any of the following: