SB368-ASA1,28,2221
3. A commitment by the petitioner to appear at the administrative hearing and
22present information supporting the petitioner's objection.
SB368-ASA1,29,223
(d)
Stays. 1. The discharge shall be stayed pending an administrative hearing
24under this subsection if the petition contains a request for the stay showing that a
1stay is necessary to prevent significant adverse impacts or irreversible harm to the
2environment.
SB368-ASA1,29,53
2. If a stay is requested under subd. 1., the stay shall be in effect until either
4the department denies the request for an administrative hearing or the hearing
5examiner determines that the stay is not necessary.
SB368-ASA1,29,106
(e)
Filings. The petitioner shall file a copy of the petition with the department.
7If the petitioner is not the applicant, the petitioner shall simultaneously provide a
8copy of the petition to the applicant. The applicant may file a response to the petition
9with the department. If the applicant files a response under this paragraph, it shall
10be filed within 15 days after the petition is filed.
SB368-ASA1,29,1411
(f)
Action on petition. The department shall grant or deny the petition within
1230 days after the petition is filed. The failure of the department to dispose of the
13petition within this 30-day period is a denial. The department shall deny the
14petition if any of the following applies:
SB368-ASA1,29,1615
1. The petitioner is not the applicant, and the petition does not comply with the
16requirements of par. (c).
SB368-ASA1,29,2117
2. The objection contained in the petition is not substantive. The department
18shall determine that an objection is substantive if the supporting facts contained in
19the objection appear to be substantially true and raise reasonable grounds to believe
20that the provisions of this section may be violated if the activity or project is
21undertaken.
SB368-ASA1,29,2322
3. If the department denies the petition, the department shall send the
23petitioner the denial in writing, stating the reasons for the denial.
SB368-ASA1,30,224
4. If the department grants a petition under this subsection, the department
25shall refer the matter to the division of hearings and appeals in the department of
1administration within 15 days after granting the petition unless the petitioner and
2the applicant agree to an extension.
SB368-ASA1,30,43
(g)
Administrative hearing. 1. An administrative hearing under this
4subsection shall be treated as a contested case under ch. 227.
SB368-ASA1,30,115
2. If a stay under par. (d) 1. is in effect, the hearing examiner shall, within 30
6days after receipt of the referral under par. (f) 4., determine whether continuation
7of the stay is necessary to prevent significant adverse impacts or irreversible harm
8to the environment pending completion of the administrative hearing. The hearing
9examiner shall make the determination based on the request under par. (d) 1., any
10response from the applicant under par. (e), and any testimony at a public hearing or
11any public comments. The determination shall be made without a hearing.
SB368-ASA1,30,1712
3. An administrative hearing under this subsection shall be completed within
1390 days after receipt of the referral of the petition under par. (f) 4., unless all parties
14agree to an extension of that period. In addition, a hearing examiner may grant a
15one-time extension for the completion of the hearing of up to 60 days on the motion
16of any party and a showing of good cause demonstrating extraordinary
17circumstances justifying an extension.
SB368-ASA1,30,2018
4. Notwithstanding s. 227.44 (1), the department shall provide a notice of the
19administrative hearing at least 30 days before the date of the hearing to all of the
20following:
SB368-ASA1,30,2121
a. The applicant.
SB368-ASA1,30,2222
b. Each petitioner, if other than the applicant.
SB368-ASA1,30,2323
c. Any other persons required to receive notice as provided under sub. (3p).
SB368-ASA1,30,2524
5. In an administrative hearing under this subsection, the petitioner shall
25proceed first with the presentation of evidence and shall have the burden of proof.
SB368-ASA1,31,3
1(h)
Judicial review. 1. Any person whose substantial interest is affected by a
2decision of the department under par. (b) 1. or 2. may commence an action in circuit
3court to review that decision.
SB368-ASA1,31,54
2. Any party aggrieved by a decision of the hearing examiner under par. (g) may
5commence an action in circuit court to review that decision.
SB368-ASA1,31,107
281.36
(3r) Mitigation; in lieu fee subprogram. (a) The department shall
8establish a mitigation program that applies only to the issuance of wetland
9individual permits and that allows mitigation to be accomplished by any of the
10following methods:
SB368-ASA1,31,1111
1. Purchasing credits from a mitigation bank located in this state.
SB368-ASA1,31,1312
2. Participating in the in lieu fee subprogram, if such a subprogram is
13established under par. (e).
SB368-ASA1,31,1514
3. Completing mitigation within the same watershed or within one-half mile
15of the site of the discharge.
SB368-ASA1,31,1816
(b) Under the mitigation program, mitigation as specified in par. (a) 1. and
17participation in the in lieu fee subprogram, if established under par. (a) 2. shall be
18the preferred types of mitigation.
SB368-ASA1,31,2219
(c) The department shall establish a system of service areas for the mitigation
20banks under the mitigation program that is geographically based on the locations of
21the major watersheds in the state. The system shall be consistent with federal
22regulations.
SB368-ASA1,32,523
(cm) Before entering into an agreement with a sponsor of a mitigation bank to
24establish such a bank or before otherwise approving a mitigation bank, the
25department shall provide written notice that a mitigation bank may be established.
1The notice shall be given to each city, village, town, and county in which each
2proposed mitigation bank site will be located. Each city, village, town, and county
3receiving the notice shall be given an opportunity to submit comments regarding the
4establishment of the mitigation bank. The notice shall contain all of the following
5information:
SB368-ASA1,32,66
1. The name of the sponsor of the proposed mitigation bank.
SB368-ASA1,32,77
2. A brief description of the mitigation bank and all of its bank sites.
SB368-ASA1,32,98
3. A date after which the department will not accept comments from the
9affected cities, villages, towns, or counties.
SB368-ASA1,32,1010
4. An address to which any comments shall be submitted.
SB368-ASA1,32,1711
(d) The department shall establish under the mitigation program mitigation
12ratios that are consistent with the federal regulations that apply to mitigation and
13mitigation banks but the minimum ratio shall be at least 1.2 acres for each acre
14affected by the discharge. The ratios shall include incentives for mitigation that will
15be located in the same watershed in which the discharge will occur or that will
16replace the wetland types and functions that are most needed in the watershed in
17which the discharge will occur.
SB368-ASA1,33,318
(e) As part of the mitigation program established under par. (a), the department
19may establish an in lieu fee subprogram, in consultation with the army corps of
20engineers, under which payments are made to the department or another entity for
21the purposes of restoring, enhancing, creating, or preserving wetlands or other water
22resource features. The department shall establish requirements for calculating the
23in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit
24from the program shall be open to the public for hunting, fishing, trapping,
25cross-country skiing, or hiking or any combination thereof, but the department may
1establish reasonable restrictions on the use of the land by the public in order to
2protect public safety or to protect a unique plant or animal community. The
3subprogram shall be consistent with federal regulations.
SB368-ASA1, s. 90
4Section
90. 281.36 (4) (intro.) of the statutes is amended to read:
SB368-ASA1,33,75
281.36
(4) Exemptions. (intro.) Except as provided in sub. (5), the
certification 6permitting requirement under sub.
(2)
(3b) does not apply to any discharge that is
7the result of any of the following activities:
SB368-ASA1,33,109
281.36
(4) (b) Maintenance, emergency repair, or reconstruction of damaged
10parts of structures that are in use in a
nonfederal wetland.
SB368-ASA1, s. 92
11Section
92. 281.36 (4) (e) 1. of the statutes is amended to read:
SB368-ASA1,33,1312
281.36
(4) (e) 1. That the flow and circulation patterns and chemical and
13biological characteristics of the affected
nonfederal wetland are not impaired.
SB368-ASA1, s. 93
14Section
93. 281.36 (4) (e) 2. of the statutes is amended to read:
SB368-ASA1,33,1615
281.36
(4) (e) 2. That the reach of the affected
nonfederal wetland is not
16reduced.
SB368-ASA1, s. 94
17Section
94. 281.36 (4) (e) 3. of the statutes is amended to read:
SB368-ASA1,33,1918
281.36
(4) (e) 3. That any adverse effect on the aquatic environment of the
19affected
nonfederal wetland is minimized to the degree required by the department.
SB368-ASA1, s. 95
20Section
95. 281.36 (5) (intro.) of the statutes is amended to read:
SB368-ASA1,34,221
281.36
(5) Inapplicability of exemptions. (intro.) Notwithstanding sub. (4),
22a discharge that would be exempt under sub. (4) is subject to the
certification 23permitting requirement under sub.
(2)
(3b) if the discharge is incidental to an activity
24that has as its purpose bringing a
nonfederal wetland, or part of a
nonfederal
1wetland, into a use for which it was not previously subject and if the activity may do
2any of the following:
SB368-ASA1,34,44
281.36
(5) (a) Impair the flow or circulation of any
nonfederal wetland.
SB368-ASA1,34,66
281.36
(5) (b) Reduce the reach of any
nonfederal wetland.
SB368-ASA1,34,98
281.36
(6) (a) 1. Make the rules consistent with existing federal law
or
9interpretation.
SB368-ASA1, s. 103
14Section
103. 281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and
15amended to read:
SB368-ASA1,34,2216
281.36
(3g) (b)
Additional required permits. The In addition to the wetland
17general permits required under par. (a), the department shall issue
wetland general
18water quality certifications permits that are consistent with
all of the, and
19correspond to, any general permits
that are issued under
33 USC 1344 (e)
that
20applied on January 8, 2001, to nonfederal wetlands located in this state and that
21regulate discharges other than those regulated under the required wetland general
22permits issued under par. (a).
SB368-ASA1, s. 108
2Section
108. 281.36 (9) (a) (intro.) of the statutes is amended to read:
SB368-ASA1,35,83
281.36
(9) (a) (intro.) For purposes
of determining whether to issue a wetland
4individual permit, whether authorization to proceed as authorized under a wetland
5general permit is appropriate, or whether an exemption under sub. (4) is
6appropriate, and for purposes of enforcing this section, any employee or other
7representative of the department, upon presenting his or her credentials, may do any
8of the following:
SB368-ASA1,35,1210
281.36
(9) (a) 1. Enter and inspect any property on which is located a
nonfederal 11wetland
, or part of a
nonfederal wetland, for which an application
for a water quality
12certification has been submitted
to the department
under sub. (3g) or (3m).
SB368-ASA1,35,1614
281.36
(9) (a) 2. Enter and inspect any property on which is located a
nonfederal 15wetland to investigate a discharge
of dredged or fill material that the department has
16reason to believe is in violation of this section.
SB368-ASA1,35,2118
281.36
(9) (a) 3. Gain access to and inspect any records that
the department
19requires a holder of a
water quality certification to wetland individual permit or a
20person acting under the authority of a wetland general permit is required by the
21department to keep.
SB368-ASA1, s. 113
23Section
113. 281.36 (9) (d) and (e) of the statutes are created to read:
SB368-ASA1,35,2524
281.36
(9) (d)
The department shall provide reasonable advance notice to the
25property owner before entering and inspecting property as authorized under par (a).
SB368-ASA1,36,2
1(e) If the owner of the property refuses to give consent for the entry and
2inspection, the department may do any of the following:
SB368-ASA1,36,33
1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.
SB368-ASA1,36,54
2. Deny an application for a wetland individual permit or deny authorization
5to proceed under a wetland general permit.
SB368-ASA1, s. 114
6Section
114. 281.36 (10) (intro.) and (a) of the statutes are consolidated,
7renumbered 281.36 (10) and amended to read:
SB368-ASA1,36,158
281.36
(10) Other Additional requirements. The requirement of being issued
9a wetland individual permit or proceeding under the authority of a wetland general
10permit under this section is in addition to any permit or other approval required by
11the department for a project or activity that involves a discharge into a wetland. This
12section does not affect the authority of the department to
do any of the following: (a)
13Regulate otherwise regulate the discharge of dredged or fill material in a
nonfederal 14wetland under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47,
15or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.
SB368-ASA1,37,218
281.36
(11) Restoration; surcharge fee. (a) The department shall set a
19surcharge fee to be charged for each application to proceed under a wetland general
20permit that is issued under sub. (3g) (a) 4., 5., or 6. The surcharge fee shall be set
21on an annual basis by the department and may not exceed more than 50 percent of
22the market price, as determined by the department, for the equivalent purchase of
23credits from a mitigation bank. These fees shall be credited to the appropriation
24account under s. 20.370 (4) (bm) for the restoration and creation of wetlands. The
1department may enter into agreements with other entities for the restoration and
2creation of such wetlands.
SB368-ASA1,37,73
(b)
Any wetland that is restored or created using funding from the
4appropriation under s. 20.370 (4) (bm) shall be open to the public for hunting, fishing,
5trapping, cross-country skiing, or hiking or any combination thereof, but the
6department may establish reasonable restrictions on the use of the land by the public
7in order to protect public safety or to protect a unique plant or animal community.
SB368-ASA1,37,149
281.36
(12) (a)
Fees required. The department shall charge a fee for reviewing,
10investigating, and making decisions on applications to proceed under wetland
11general permits under sub. (3g) and on applications for wetland individual permits
12under sub. (3m). For an authorization to proceed under a wetland general permit,
13the application fee shall be $500. For a wetland individual permit, the application
14fee shall be $800.
SB368-ASA1,37,1816
281.36
(12) (b)
Additional fee. The department may set and charge a fee in the
17amount necessary to meet the costs incurred by the department in reviewing
18mitigation that is conducted by mitigation banks.
SB368-ASA1,37,2420
281.36
(13) Parties to a violation. (a) Whoever is concerned in the commission
21of a violation of this section for which a forfeiture is imposed is a principal and may
22be charged and found in violation although he or she did not directly commit the
23violation and although the person who directly committed it has not been found in
24violation.
SB368-ASA1,38,2
1(b) A person is concerned in the commission of the violation if the person does
2any of the following:
SB368-ASA1,38,33
1. Directly commits the violation.