Current law makes a distinction between wetlands that are in, or that are in
proximity to, an area of special natural resource interest (ASNRI) wetlands and
those wetlands that are outside these areas. Current law defines ASNRI as being
an area that has significant ecological, cultural, aesthetic, educational, recreational,
or scientific value and specifically lists certain areas.
Under current law, a discharge into a federal or nonfederal wetland will be
authorized under an individual or general water quality certification only if the
discharge complies with all of the water quality standards that apply to wetlands.
These standards are promulgated as rules by the Department of Natural Resources
(DNR) and require that various functional values of wetlands be protected from
adverse impacts. These functional values include providing protection from
flooding, recharging groundwater, and providing habitat for wildlife.
Under current law, before ACE may issue a federal permit applicable to a
federal wetland, or authorize an activity pursuant to a general federal permit, DNR
must issue a water quality certification. For a nonfederal wetland, the discharge
must be authorized by a water quality certification issued by DNR but no federal
permit is required. For a nonfederal wetland, the discharge may be authorized by
an individual certification or a general certification. Under current law, DNR may
issue a general water quality certification for types of discharges that are similar in
nature and will cause minimal adverse environmental effects. Under current law,
DNR must issue general water quality certifications that are consistent with all of
the general permits issued under federal law.
Under rules promulgated by DNR, in order for DNR to issue an individual
wetland water quality certification DNR must first find that no practicable
alternative exists which would avoid causing adverse impacts to the wetland and
that all practicable measures will be taken to minimize the adverse impacts to the
functional value of the affected wetlands. DNR then considers any proposed
mitigation and various other factors to determine whether there will be an adverse
impact to wetland functional values or to water quality that is significant or other
environmental consequences that are significant. The factors used in this step of the
analysis include whether the project is wetland dependent, consideration of any
practicable alternatives for the project, potential impacts to ASNRI wetlands, and
other cumulative and potential secondary impacts. If DNR finds that there will be
no significant adverse impacts or other significant environmental consequences,
DNR must find that the project complies with wetland quality standards and must
issue the wetland water quality certification. For certain projects that are wetland
dependent, that involve impacts to not more that 0.10 acres, or that are not a wetland
that merits special consideration, DNR may limit the scope of the analysis of
Under current law, DNR is authorized, but is not required, to consider
mitigation in determining whether to issue a water quality certification. Under
current law, wetland mitigation consists of a project that restores, enhances, or
creates (improves) a wetland in order to offset the adverse impacts to other wetlands
or a project that involves the purchase of credits from a wetlands mitigation bank.
A wetlands mitigation bank is a system of accounting for wetland loss that includes
one or more sites where wetlands are improved to provide transferable credits to be
subsequently applied to offset adverse impact to other wetlands. Mitigation is based
on a ratio of acres improved compared to the number of acres that will suffer an
Current law requires that the ratio of acres for purposes of mitigation be 1.5
acres of improved wetlands for each acre that will suffer an adverse impact, with a
limited exception allowing the ratio to be one acre to one acre. Current law prohibits
DNR from considering wetland mitigation in deciding whether to authorize an
activity that would adversely affect an ASNRI wetland or an ASNRI in general.
Current law requires that mitigation occur within one-half mile of the wetland that
will suffer an impact unless DNR determines that it is not practicable or ecologically
preferable that the mitigation occur within the one-half mile limitation.
This bill makes various changes to the current law described above. These
changes include the following:
1. The bill substitutes the term "wetland permit" for "water quality
certification," and specifies that the issuance of a wetland permit by DNR takes the
place of a water quality certification required by federal law.
2. The bill requires that DNR issue certain wetland general permits (project
permits) that are in addition to the required general certifications under current law.
These include general permits for discharges that are necessary for the treatment
or disposal of hazardous waste or toxic pollutants if not more than two acres of
wetlands are affected, and discharges for commercial, residential, or agricultural
purposes if not more than 10,000 square feet of wetland are affected. The bill
authorizes DNR to issue additional wetland general permits. The bill authorizes
DNR to establish different requirements, conditions, and exceptions in general
permits to ensure that the discharges will cause only minimal adverse
environmental effects. The bill also authorizes DNR to prohibit discharges into
certain types of wetlands identified by DNR. These include coastal plain marshes
and calcareous fens.
3. The bill creates requirements for giving public notice of DNR's intent to issue
4. The bill establishes a procedure for obtaining authorization to proceed under
a wetland general permit that is similar to the procedure for obtaining authorization
under general permits that authorize structures and other activities in or near
general waters. Under this procedure, a person must file an application to proceed
under the general permit not less than 30 days before commencing the discharge.
If, within 30 days after the application, DNR does not inform the applicant that a
wetland individual permit will be required, the discharge is considered to be
authorized under the wetland general permit. The bill authorizes DNR to require
a person to apply and obtain a wetland individual permit if DNR determines that
conditions specific to the site require additional restrictions on the discharge in order
to provide reasonable assurance that no significant adverse impacts to wetland
functional values will occur. Under the bill, a general permit, other than a project
permit, may include a waiver of the requirement that specific authorization be
obtained for a wetland discharge.
5. The bill changes the standards for reviewing applications for wetland
Under the bill, DNR reviews the practicable alternatives presented in the
application for the wetland individual permit. DNR must limit its review of these
alternatives to those that are located at the site of the discharge and those adjacent
to the site if the applicant has demonstrated that the proposed project that will cause
the discharge will have a demonstrable economic benefit, that the proposed project
is necessary for the expansion of an existing industrial or commercial facility, or that
the proposed project will occur in an existing industrial park. Under the bill, the
factors to be used in the review include direct impacts, potential secondary impacts,
certain cumulative impacts, impacts from proposed mitigation, and the net positive
or negative environmental impact of the project. Under the bill, DNR must find that
the project complies with wetland quality standards if DNR determines that the
proposed project represents the least environmentally damaging practicable
alternative, all practicable measures to minimize the adverse impact to wetland
functional values will be taken, and the discharge will not result in significant
adverse impacts to wetland functional values or to water quality or in any other
significant adverse environmental consequences. Upon making such a finding, DNR
is authorized, but is not required, to issue a wetland individual permit.
6. The bill creates specific procedures and time limits for issuing wetland
individual permits. Under the bill, DNR must hold a meeting with the applicant to
discuss the details of the proposed discharge before the application is actually
submitted. DNR must then review an application and within 30 days after
submission shall determine either that the application is complete or that additional
information is needed. The applicant may include in the application a request for a
public informational hearing. If the application is incomplete, DNR may make only
one additional request for information. Upon receipt of the information, DNR has ten
days to notify the applicant whether the application is complete. The date on which
the 30-day or ten-day notice is or should be sent triggers the time limits for the
public hearing process and for receiving public comments. Under the bill, the term
used for such a date that triggers the time limits is "date of closure." DNR may ask
for information to supplement the one-time request for information, but such a
request may not affect the date of closure.
Within 15 days after the date of closure, DNR must provide notice of the
application to interested members of the public. If the application does not already
contain a request for a public informational hearing, any person may request such
a hearing. DNR on its own may decide to hold a hearing if it determines that there
is significant public interest. The bill authorizes any person to submit public
comments in addition to any public hearing. Under the bill, if no hearing is held, DNR
must render a decision on the application within 30 days after the period for public
comment has ended. If a hearing is held, the period for public comment ends ten days
after the date the hearing is completed, and DNR must render its decision within 20
days after the period for public comment ends.
The bill also creates requirements for giving public notice of pending
applications and informational hearings.
7. The bill requires that mitigation be performed under each wetland
individual permit that DNR issues, and removes the restriction that mitigation may
not be considered in issuing permits for discharges into ASNRI wetlands or into
ASNRI in general. Mitigation may be accomplished by completing a mitigation
project within the same watershed or within one-half mile of the discharge site or
by participating in the in lieu fee subprogram, if DNR establishes such a
subprogram. The bill authorizes DNR to create the in lieu fee subprogram, in
consultation with ACE. Under the subprogram, payments would be made to DNR
or another entity for the purposes of improving or preserving wetlands or other water
resource features. Under the subprogram, a wetland that benefits from the
subprogram must be open to the public for hunting, fishing, trapping, cross-country
skiing, and hiking. The in lieu fee subprogram must be consistent with federal
regulations that apply to such a subprogram.
8. The bill increases the fee for a wetland individual permit. The bill also
creates a fee for an application to proceed under a wetland general permit. Under
current law, there is no such application fee to proceed under a general water quality
9. The bill creates a surcharge that applies to certain applications to proceed
under wetland general permits. These surcharge fees are to be used to create and
restore wetlands and are subject to the public-access requirement for hunting and
other activities as described above.
The bill makes changes relating to fees paid by persons submitting applications
for individual permits to place structures or conduct other activities in or near
navigable waters. Under current law, the amount of the fee for a permit relating to
navigable waters is based on the estimated time DNR will spend reviewing and
investigating the application and making determinations on the application. For an
application to proceed under a general permit, there is no fee. This bill imposes a set
fee for both types of applications.
The bill authorizes DNR to charge fees for identifying ordinary high-water
marks, for making determinations of navigability, and for other determinations
related to issuing permits for structures and activities in navigable waters.
Finally, the bill eliminates the requirement under current law that DNR review
wetland maps and the accompanying fee.
For further information see the state 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:
AB463, s. 1
20.370 (4) (bi) of the statutes is amended to read:
(bi) Water regulation and zoning — fees.
From the general fund, all 3
moneys received under ss. 23.32 (3), 23.321, 30.28, 31.39,
and 281.22 281.36 (12)
activities relating to permits, contracts, authorizations,
approvals issued 5
under s. 281.36 and
chs. 30 and 31, for activities relating to
water quality standards 6
under subch. II of ch. 281,
and for wetland mapping under s. 23.32 and wetlands 7
services under s. 23.321.
AB463, s. 2
20.370 (4) (bm) of the statutes is created to read:
(bm) Wetland restoration — fees; payments.
From the general fund, 10
all moneys received as surcharge fees under s. 281.36 (11) and all moneys received 11
under the in lieu fee subprogram under s. 281.36 (3r) (e) for the restoration or 12
creation of wetlands and for any other activities authorized under the in lieu fee 13
AB463, s. 3
23.321 (title) of the statutes is amended to read:
(title) Wetland map review, identification, and confirmation.
AB463, s. 4
23.321 (1) (title) of the statutes is created to read:
AB463, s. 5
23.321 (2) (title) of the statutes is created to read:
(title) Types of services.
AB463, s. 6
23.321 (2) (a) of the statutes is repealed.
AB463, s. 7
23.321 (2m) (title) of the statutes is created to read:
(title) Memorandum of agreement.
AB463, s. 8
23.321 (3) (title) of the statutes is created to read:
(title) Fees; generally.
AB463, s. 9
23.321 (3) (a) of the statutes is repealed.
AB463, s. 10
23.321 (3m) of the statutes is created to read:
23.321 (3m) Fees; expedited service.
The department may charge a 7
supplemental fee for a type of service under sub. (2) that is in addition to the fee 8
charged under sub. (3) if all of the following apply:
(a) The applicant requests in writing that the service be provided within a time 10
period that is shorter than the time limit specified under sub. (4) for that type of 11
(b) The department verifies that it will be able to comply with the request.
AB463, s. 11
23.321 (4) (title) of the statutes is created to read:
(title) Time limits.
AB463, s. 12
23.321 (4) (a) 1. of the statutes is repealed.
AB463, s. 13
23.321 (5) (title) of the statutes is created to read:
(title) Length of validity.
AB463, s. 14
23.321 (6) (title) of the statutes is created to read:
(title) Included on maps.
AB463, s. 15
30.025 (1b) (b) of the statutes is amended to read:
(b) "Permit" means an individual permit, a general permit, an 22
approval, or a contract required under this subchapter or subch. II, a permit or an 23
approval required under ch. 31, a storm water discharge permit required under s. 24
283.33 (1) (a), or a water quality certification
wetland general permit or wetland
required under s. 281.36 or under rules promulgated under subch. 2
II of ch. 281 to implement 33 USC 1341
AB463, s. 16
30.03 (4) (a) of the statutes is amended to read:
(a) If the department learns of a possible violation of s. 281.36 or of 5
the statutes relating to navigable waters or a possible infringement of the public 6
rights relating to navigable waters, and the department determines that the public 7
interest may not be adequately served by imposition of a penalty or forfeiture, the 8
department may proceed as provided in this paragraph, either in lieu of or in addition 9
to any other relief provided by law. The department may order a hearing under ch. 10
227 concerning the possible violation or infringement, and may request the hearing 11
examiner to issue an order directing the responsible parties to perform or refrain 12
from performing acts in order to comply with s. 281.36 or
to fully protect the interests 13
of the public in the navigable waters. If any person fails or neglects to obey an order, 14
the department may request the attorney general to institute proceedings for the 15
enforcement of the department's order in the name of the state. The proceedings 16
shall be brought in the manner and with the effect of proceedings under s. 111.07 (7).
AB463, s. 17
30.2022 (2) of the statutes is amended to read:
The exemption under sub. (1) does not apply unless the activity is 19
accomplished in accordance with interdepartmental liaison procedures established 20
by the department and the department of transportation for the purpose of 21
minimizing the adverse environmental impact, if any, of the activity.
If the activity
22affects a wetland, as defined in s. 23.32 (1), the department of transportation shall
23conduct any required mitigation either by complying with the interdepartmental
24liaison procedures and any applicable interagency agreement on mitigation banks
1that is approved by the department of natural resources or by using any of the
2methods specified in s. 281.36 (3r) (a) 1. to 3.
AB463, s. 18
30.207 (7) (a) of the statutes is amended to read:
(a) At least 15 days before beginning the activity that is authorized 5
by a general permit under this section the person who wishes to conduct the activity 6
shall submit a notice to the department and shall pay the fee specified in s. 30.28 (2)
7(b) 2 (1) (d)
. The notice shall describe the activity, state the name of the person that 8
will be conducting the activity and state the site where the activity will be conducted. 9
The notice shall also contain a statement signed by the person conducting the 10
activity that the person will act in conformance with the standards contained in the 11
AB463, s. 19
30.28 (title) of the statutes is amended to read:
(title) Fees for permits, other approvals, and determinations
AB463, s. 20
30.28 (1) of the statutes is renumbered 30.28 (1) (intro.) and 16
amended to read:
(intro.) The department shall charge a permit or approval
fee for 18carrying out its duties and responsibilities under ss. 30.10 to 30.205, 30.207 and
1930.21 to 30.27 reviewing, investigating, and making decisions on determinations and
20on whether to issue or grant permits, contracts, authorizations, or other approvals
21under this subchapter
. The permit or approval
fee shall accompany the 22permit
application, notice or request for approval or other submitted documentation
. 23The department shall set each type of fee in the amount that is necessary to meet the
24costs incurred by the department except as follows:
AB463, s. 21
30.28 (1) (a) of the statutes is created to read:
(a) For an individual permit issued under s. 30.208, the application 2
fee shall be $600.
AB463, s. 22
30.28 (1) (b) of the statutes is created to read:
(b) For authorization to proceed under a general permit issued under 5
s. 30.206, the application fee shall be $300.
AB463, s. 23
30.28 (1m) of the statutes is created to read:
30.28 (1m) Additional fees.
(a) In addition to the fees required under sub. (1), 8
the department may set and charge fees for making any of the following 9
1. An identification of an ordinary high-water mark.
2. A determination of navigability.
3. Any other determination that is necessary for reviewing, investigating, or 13
making a decision on applications for permits, contracts, authorizations, or other 14
approvals under this chapter.
(b) The department shall set each fee authorized under this subsection in the 16
amount that is necessary to meet the costs incurred by the department.
AB463, s. 24
30.28 (2) (title) of the statutes is repealed.
AB463, s. 25
30.28 (2) (a) (intro.) of the statutes is repealed.
AB463, s. 26
30.28 (2) (a) 1. of the statutes is repealed.
AB463, s. 27
30.28 (2) (a) 2. of the statutes is repealed.
AB463, s. 28
30.28 (2) (a) 3. of the statutes is repealed.
AB463, s. 29
30.28 (2) (b) 1. of the statutes is renumbered 30.28 (1) (c).
AB463, s. 30
30.28 (2) (b) 2. of the statutes is renumbered 30.28 (1) (d).
AB463, s. 31
30.28 (2m) (a) of the statutes is amended to read:
(a) The department shall refund a permit or approval
2under sub. (1) (a)
if the applicant requests a refund before the department 3
determines that the application for the permit or approval
is complete. Except as 4
provided in par. (am), the department may not refund a permit or approval
fee after 5
the department determines that the application is complete unless required to do so
6under a rule promulgated under s. 299.05
AB463, s. 32
30.28 (2m) (am) of the statutes is amended to read:
(am) The department shall refund 50% of the fee specified in sub. 9(2) (b) 1.
if the department denies an application for a general permit under 10
s. 30.207 (3) (d) 1. or does not issue a general permit under s. 30.207 (6).
AB463, s. 33
30.28 (2m) (b) of the statutes is amended to read:
(b) If the applicant applies for a permit, requests an approval, or
13submits a notice under s. 30.207 (7) a person applies for a permit or otherwise seeks
14authorization or gives notice for a project or activity
after the project or activity
begun or after it is completed, the department shall charge an amount equal to twice 16
the amount of the fee that it would have charged under this section.
AB463, s. 34
30.28 (2m) (c) of the statutes is repealed.