2011 - 2012 LEGISLATURE
January 6, 2012 - Introduced by Senators Kedzie and Schultz, cosponsored by
Representatives Mursau, Rivard, Brooks, Honadel and Stone. Referred to
Committee on Natural Resources and Environment.
1An Act to repeal
23.321 (2) (a), 23.321 (3) (a), 23.321 (4) (a) 1., 30.28 (2) (title), 2
30.28 (2) (a) (intro.), 30.28 (2) (a) 1., 30.28 (2) (a) 2., 30.28 (2) (a) 3., 30.28 (2m) 3
(c), 31.39 (2m) (c), 281.22 (1), 281.22 (2) (c), 281.22 (4), 281.36 (1) (am), 281.36 4
(1) (bg), 281.36 (1) (c) and (cm), 281.36 (1) (cr), 281.36 (1m), 281.36 (2) (title), 5
281.36 (2) (b), 281.36 (7), 281.36 (8) (title), 281.36 (8) (a), 281.36 (8) (b), 281.36 6
(8) (bn) 2., 281.36 (8) (c), 281.36 (8) (d), 281.36 (8) (e), 281.36 (9) (am) to (c), 7
281.36 (10) (b), 281.37 (title), 281.37 (1) (intro.), 281.37 (1) (a), 281.37 (1) (e), 8
281.37 (1) (f), 281.37 (2), 281.37 (3) (g), 281.37 (3) (j), 281.37 (3m) and 281.37 (4); 9to renumber
30.28 (2) (b) 1., 30.28 (2) (b) 2., 281.22 (2) (title), 281.22 (2m) (title) 10
and 281.22 (2m) (a) 2.; to renumber and amend
30.28 (1), 281.22 (title), 11
281.22 (2) (a), 281.22 (2) (b), 281.22 (2) (d), 281.22 (2m) (a) (intro.), 281.22 (2m) 12
(a) 1., 281.22 (2m) (b), 281.22 (3), 281.36 (2) (a), 281.36 (3), 281.36 (8) (bn) 1., 13
281.37 (1) (b), 281.37 (1) (d), 281.37 (2m), 281.37 (3) (intro.), 281.37 (3) (a), 14
281.37 (3) (b), 281.37 (3) (c), 281.37 (3) (d), 281.37 (3) (e), 281.37 (3) (f), 281.37
(3) (h), 281.37 (3) (i) and 281.37 (5); to consolidate, renumber and amend
281.36 (10) (intro.) and (a); to amend
20.370 (4) (bi), 23.321 (title), 30.025 (1b) 3
(b), 30.03 (4) (a), 30.2022 (2), 30.207 (7) (a), 30.28 (title), 30.28 (2m) (a), 30.28 4
(2m) (am), 30.28 (2m) (b), 30.28 (2m) (d), 30.28 (2r) (a) (intro.), 30.28 (2r) (a) 1., 5
30.28 (2r) (b), 281.165 (4) (a) 1m., 281.36 (4) (intro.), 281.36 (4) (b), 281.36 (4) 6
(e) 1., 281.36 (4) (e) 2., 281.36 (4) (e) 3., 281.36 (5) (intro.), 281.36 (5) (a), 281.36 7
(5) (b), 281.36 (6) (a) 1., 281.36 (9) (a) (intro.), 281.36 (9) (a) 1., 281.36 (9) (a) 2., 8
281.36 (9) (a) 3., 281.98 (1) and 814.04 (intro.); to repeal and recreate
(title); and to create
20.370 (4) (bm), 23.321 (1) (title), 23.321 (2) (title), 23.321 10
(2m) (title), 23.321 (3) (title), 23.321 (3m), 23.321 (4) (title), 23.321 (5) (title), 11
23.321 (6) (title), 30.28 (1) (a), 30.28 (1) (b), 30.28 (1m), 227.01 (13) (ru), 281.17 12
(10) (c), 281.36 (1) (bd), 281.36 (1) (bj), 281.36 (1) (cp), 281.36 (3b) (title), 281.36 13
(3b) (a), 281.36 (3g) (title), 281.36 (3g) (a), 281.36 (3g) (c), 281.36 (3g) (d), 281.36 14
(3g) (e), 281.36 (3g) (f), 281.36 (3g) (fg), 281.36 (3g) (fm), 281.36 (3g) (fr), 281.36 15
(3g) (g), 281.36 (3g) (h), 281.36 (3g) (i), 281.36 (3m), 281.36 (3n), 281.36 (3p), 16
281.36 (3r), 281.36 (9) (d) and (e), 281.36 (11), 281.36 (12) (a), 281.36 (12) (b), 17
281.36 (13) and 281.36 (14) of the statutes; relating to: permits for discharges
18into wetlands; wetland mitigation; wetland mapping and delineation; fees for
19permits and other authorizations or determinations by the Department of
20Natural Resources relating to structures, deposits, and other activities in or
21near navigable waters; making appropriations; and providing penalties.
Analysis by the Legislative Reference Bureau
Wetland permitting and mitigation
Under current law, there are two permitting procedures for discharging
dredged or fill material into a wetland depending on whether the wetland is subject
to federal jurisdiction. Under federal law, activities involving the discharge of
dredged or fill material into wetlands subject to federal jurisdiction (federal
wetlands) must comply with certain guidelines contained in regulations
promulgated by the U.S. Army Corps of Engineers (ACE). Wetlands that are exempt
from federal jurisdiction are those that are nonnavigable and that are isolated,
intrastate wetlands. Current state law regulates discharges in these wetlands
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:
SB368, 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.
SB368, 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
SB368, s. 3
23.321 (title) of the statutes is amended to read:
(title) Wetland map review, identification, and confirmation.
SB368, s. 4
23.321 (1) (title) of the statutes is created to read:
SB368, s. 5
23.321 (2) (title) of the statutes is created to read:
(title) Types of services.
SB368, s. 6
23.321 (2) (a) of the statutes is repealed.
SB368, s. 7
23.321 (2m) (title) of the statutes is created to read:
(title) Memorandum of agreement.
SB368, s. 8
23.321 (3) (title) of the statutes is created to read:
(title) Fees; generally.