Amendment ASA1-SB368

SB368-ASA1,30,4 (g) Administrative hearing. 1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.

SB368-ASA1,30,11 2. If a stay under par. (d) 1. is in effect, the hearing examiner shall, within 30 days after receipt of the referral under par. (f) 4., determine whether continuation of the stay is necessary to prevent significant adverse impacts or irreversible harm to the environment pending completion of the administrative hearing. The hearing examiner shall make the determination based on the request under par. (d) 1., any response from the applicant under par. (e), and any testimony at a public hearing or any public comments. The determination shall be made without a hearing.

SB368-ASA1,30,17 3. An administrative hearing under this subsection shall be completed within 90 days after receipt of the referral of the petition under par. (f) 4., unless all parties agree to an extension of that period. In addition, a hearing examiner may grant a one-time extension for the completion of the hearing of up to 60 days on the motion of any party and a showing of good cause demonstrating extraordinary circumstances justifying an extension.

SB368-ASA1,30,20 4. Notwithstanding s. 227.44 (1), the department shall provide a notice of the administrative hearing at least 30 days before the date of the hearing to all of the following:

SB368-ASA1,30,21 a. The applicant.

SB368-ASA1,30,22 b. Each petitioner, if other than the applicant.

SB368-ASA1,30,23 c. Any other persons required to receive notice as provided under sub. (3p).

SB368-ASA1,30,25 5. In an administrative hearing under this subsection, the petitioner shall proceed first with the presentation of evidence and shall have the burden of proof.

SB368-ASA1,31,3 (h) Judicial review. 1. Any person whose substantial interest is affected by a decision of the department under par. (b) 1. or 2. may commence an action in circuit court to review that decision.

SB368-ASA1,31,5 2. Any party aggrieved by a decision of the hearing examiner under par. (g) may commence an action in circuit court to review that decision.

SB368-ASA1, s. 89 Section 89. 281.36 (3r) of the statutes is created to read:

SB368-ASA1,31,10 281.36 (3r) Mitigation; in lieu fee subprogram. (a) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows mitigation to be accomplished by any of the following methods:

SB368-ASA1,31,11 1. Purchasing credits from a mitigation bank located in this state.

SB368-ASA1,31,13 2. Participating in the in lieu fee subprogram, if such a subprogram is established under par. (e).

SB368-ASA1,31,15 3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.

SB368-ASA1,31,18 (b) Under the mitigation program, mitigation as specified in par. (a) 1. and participation in the in lieu fee subprogram, if established under par. (a) 2. shall be the preferred types of mitigation.

SB368-ASA1,31,22 (c) The department shall establish a system of service areas for the mitigation banks under the mitigation program that is geographically based on the locations of the major watersheds in the state. The system shall be consistent with federal regulations.

SB368-ASA1,32,5 (cm) Before entering into an agreement with a sponsor of a mitigation bank to establish such a bank or before otherwise approving a mitigation bank, the department shall provide written notice that a mitigation bank may be established. The notice shall be given to each city, village, town, and county in which each proposed mitigation bank site will be located. Each city, village, town, and county receiving the notice shall be given an opportunity to submit comments regarding the establishment of the mitigation bank. The notice shall contain all of the following information:

SB368-ASA1,32,6 1. The name of the sponsor of the proposed mitigation bank.

SB368-ASA1,32,7 2. A brief description of the mitigation bank and all of its bank sites.

SB368-ASA1,32,9 3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.

SB368-ASA1,32,10 4. An address to which any comments shall be submitted.

SB368-ASA1,32,17 (d) The department shall establish under the mitigation program mitigation ratios that are consistent with the federal regulations that apply to mitigation and mitigation banks but the minimum ratio shall be at least 1.2 acres for each acre affected by the discharge. The ratios shall include incentives for mitigation that will be located in the same watershed in which the discharge will occur or that will replace the wetland types and functions that are most needed in the watershed in which the discharge will occur.

SB368-ASA1,33,3 (e) As part of the mitigation program established under par. (a), the department may establish an in lieu fee subprogram, in consultation with the army corps of engineers, under which payments are made to the department or another entity for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the program shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community. The subprogram shall be consistent with federal regulations.

SB368-ASA1, s. 90 Section 90. 281.36 (4) (intro.) of the statutes is amended to read:

SB368-ASA1,33,7 281.36 (4) Exemptions. (intro.) Except as provided in sub. (5), the certification permitting requirement under sub. (2) (3b) does not apply to any discharge that is the result of any of the following activities:

SB368-ASA1, s. 91 Section 91. 281.36 (4) (b) of the statutes is amended to read:

SB368-ASA1,33,10 281.36 (4) (b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.

SB368-ASA1, s. 92 Section 92. 281.36 (4) (e) 1. of the statutes is amended to read:

SB368-ASA1,33,13 281.36 (4) (e) 1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

SB368-ASA1, s. 93 Section 93. 281.36 (4) (e) 2. of the statutes is amended to read:

SB368-ASA1,33,16 281.36 (4) (e) 2. That the reach of the affected nonfederal wetland is not reduced.

SB368-ASA1, s. 94 Section 94. 281.36 (4) (e) 3. of the statutes is amended to read:

SB368-ASA1,33,19 281.36 (4) (e) 3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.

SB368-ASA1, s. 95 Section 95. 281.36 (5) (intro.) of the statutes is amended to read:

SB368-ASA1,34,2 281.36 (5) Inapplicability of exemptions. (intro.) Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification permitting requirement under sub. (2) (3b) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of a nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:

SB368-ASA1, s. 96 Section 96. 281.36 (5) (a) of the statutes is amended to read:

SB368-ASA1,34,4 281.36 (5) (a) Impair the flow or circulation of any nonfederal wetland.

SB368-ASA1, s. 97 Section 97. 281.36 (5) (b) of the statutes is amended to read:

SB368-ASA1,34,6 281.36 (5) (b) Reduce the reach of any nonfederal wetland.

SB368-ASA1, s. 98 Section 98. 281.36 (6) (a) 1. of the statutes is amended to read:

SB368-ASA1,34,9 281.36 (6) (a) 1. Make the rules consistent with existing federal law or interpretation.

SB368-ASA1, s. 99 Section 99. 281.36 (7) of the statutes is repealed.

SB368-ASA1, s. 100 Section 100. 281.36 (8) (title) of the statutes is repealed.

SB368-ASA1, s. 101 Section 101. 281.36 (8) (a) of the statutes is repealed.

SB368-ASA1, s. 102 Section 102. 281.36 (8) (b) of the statutes is repealed.

SB368-ASA1, s. 103 Section 103. 281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and amended to read:

SB368-ASA1,34,22 281.36 (3g) (b) Additional required permits. The In addition to the wetland general permits required under par. (a), the department shall issue wetland general water quality certifications permits that are consistent with all of the, and correspond to, any general permits that are issued under 33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state and that regulate discharges other than those regulated under the required wetland general permits issued under par. (a).

SB368-ASA1, s. 104 Section 104. 281.36 (8) (bn) 2. of the statutes is repealed.

SB368-ASA1, s. 105 Section 105. 281.36 (8) (c) of the statutes is repealed.

SB368-ASA1, s. 106 Section 106. 281.36 (8) (d) of the statutes is repealed.

SB368-ASA1, s. 107 Section 107. 281.36 (8) (e) of the statutes is repealed.

SB368-ASA1, s. 108 Section 108. 281.36 (9) (a) (intro.) of the statutes is amended to read:

SB368-ASA1,35,8 281.36 (9) (a) (intro.) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under sub. (4) is appropriate, and for purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

SB368-ASA1, s. 109 Section 109. 281.36 (9) (a) 1. of the statutes is amended to read:

SB368-ASA1,35,12 281.36 (9) (a) 1. Enter and inspect any property on which is located a nonfederal wetland, or part of a nonfederal wetland, for which an application for a water quality certification has been submitted to the department under sub. (3g) or (3m).

SB368-ASA1, s. 110 Section 110. 281.36 (9) (a) 2. of the statutes is amended to read:

SB368-ASA1,35,16 281.36 (9) (a) 2. Enter and inspect any property on which is located a nonfederal wetland to investigate a discharge of dredged or fill material that the department has reason to believe is in violation of this section.

SB368-ASA1, s. 111 Section 111. 281.36 (9) (a) 3. of the statutes is amended to read:

SB368-ASA1,35,21 281.36 (9) (a) 3. Gain access to and inspect any records that the department requires a holder of a water quality certification to wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.

SB368-ASA1, s. 112 Section 112. 281.36 (9) (am) to (c) of the statutes are repealed.

SB368-ASA1, s. 113 Section 113. 281.36 (9) (d) and (e) of the statutes are created to read:

SB368-ASA1,35,25 281.36 (9) (d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under par (a).

SB368-ASA1,36,2 (e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:

SB368-ASA1,36,3 1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.

SB368-ASA1,36,5 2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.

SB368-ASA1, s. 114 Section 114. 281.36 (10) (intro.) and (a) of the statutes are consolidated, renumbered 281.36 (10) and amended to read:

SB368-ASA1,36,15 281.36 (10) Other Additional requirements. The requirement of being issued a wetland individual permit or proceeding under the authority of a wetland general permit under this section is in addition to any permit or other approval required by the department for a project or activity that involves a discharge into a wetland. This section does not affect the authority of the department to do any of the following: (a) Regulate otherwise regulate the discharge of dredged or fill material in a nonfederal wetland under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.

SB368-ASA1, s. 115 Section 115. 281.36 (10) (b) of the statutes is repealed.

SB368-ASA1, s. 116 Section 116. 281.36 (11) of the statutes is created to read:

SB368-ASA1,37,2 281.36 (11) Restoration; surcharge fee. (a) The department shall set a surcharge fee to be charged for each application to proceed under a wetland general permit that is issued under sub. (3g) (a) 4., 5., or 6. The surcharge fee shall be set on an annual basis by the department and may not exceed more than 50 percent of the market price, as determined by the department, for the equivalent purchase of credits from a mitigation bank. These fees shall be credited to the appropriation account under s. 20.370 (4) (bm) for the restoration and creation of wetlands. The department may enter into agreements with other entities for the restoration and creation of such wetlands.

SB368-ASA1,37,7 (b) Any wetland that is restored or created using funding from the appropriation under s. 20.370 (4) (bm) shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community.

SB368-ASA1, s. 117 Section 117. 281.36 (12) (a) of the statutes is created to read:

SB368-ASA1,37,14 281.36 (12) (a) Fees required. The department shall charge a fee for reviewing, investigating, and making decisions on applications to proceed under wetland general permits under sub. (3g) and on applications for wetland individual permits under sub. (3m). For an authorization to proceed under a wetland general permit, the application fee shall be $500. For a wetland individual permit, the application fee shall be $800.

SB368-ASA1, s. 118 Section 118. 281.36 (12) (b) of the statutes is created to read:

SB368-ASA1,37,18 281.36 (12) (b) Additional fee. The department may set and charge a fee in the amount necessary to meet the costs incurred by the department in reviewing mitigation that is conducted by mitigation banks.

SB368-ASA1, s. 119 Section 119. 281.36 (13) of the statutes is created to read:

SB368-ASA1,37,24 281.36 (13) Parties to a violation. (a) Whoever is concerned in the commission of a violation of this section for which a forfeiture is imposed is a principal and may be charged and found in violation although he or she did not directly commit the violation and although the person who directly committed it has not been found in violation.

SB368-ASA1,38,2 (b) A person is concerned in the commission of the violation if the person does any of the following:

SB368-ASA1,38,3 1. Directly commits the violation.

SB368-ASA1,38,4 2. Aids and abets the commission of the violation.

SB368-ASA1,38,6 3. Is a party to a conspiracy with another to commit the violation or advises, hires, counsels, or otherwise procures any person to commit it.

SB368-ASA1, s. 120 Section 120. 281.36 (13m) (b) and (c) of the statutes are created to read:

SB368-ASA1,38,8 281.36 (13m) (b) The report under par. (a) shall include all of the following:

SB368-ASA1,38,10 1. The number of preapplication meetings held during the previous 2-year period and a report on the results of these meetings.

SB368-ASA1,38,13 2. A summary of the types of discharges that were approved during the previous 2-year period. The summary shall specify the locations of the discharges and the types of projects involved.

SB368-ASA1,38,16 3. A summary of the mitigation performed during the previous 2-year period. The summary shall include a description of mitigation projects approved, accomplished, and monitored during the 2-year period.

SB368-ASA1,38,18 4. The number of wetland individual permits denied in the previous 2-year period and a summary of the reasons for the denials.

SB368-ASA1,38,21 5. An accounting covering the previous 2-year period showing the amounts credited to, the amounts appropriated from, and the balance in the appropriation under s. 20.370 (4) (bm).