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SB368,16,5 5281.36 (title) Permits for discharges into wetlands; mitigation.
SB368, s. 58 6Section 58. 281.36 (1) (am) of the statutes is repealed.
SB368, s. 59 7Section 59. 281.36 (1) (bd) of the statutes is created to read:
SB368,16,98 281.36 (1) (bd) "Fill material" has the meaning given in 33 CFR 323.2 (e), as
9the meaning exists on the effective date of this paragraph .... [LRB inserts date].
SB368, s. 60 10Section 60. 281.36 (1) (bg) of the statutes is repealed.
SB368, s. 61 11Section 61. 281.36 (1) (bj) of the statutes is created to read:
SB368,16,1312 281.36 (1) (bj) "Mitigation" means the restoration, enhancement, or creation
13of wetlands to compensate for adverse impacts to other wetlands.
SB368, s. 62 14Section 62. 281.36 (1) (c) and (cm) of the statutes are repealed.
SB368, s. 63 15Section 63. 281.36 (1) (cp) of the statutes is created to read:
SB368,16,1916 281.36 (1) (cp) "Practicable" means reasonably available and capable of being
17implemented after taking into consideration cost, site availability, available
18technology, logistics, and proximity to the proposed project site, in light of the overall
19purpose and scope of the project.
SB368, s. 64 20Section 64. 281.36 (1) (cr) of the statutes is repealed.
SB368, s. 65 21Section 65. 281.36 (1m) of the statutes is repealed.
SB368, s. 66 22Section 66. 281.36 (2) (title) of the statutes is repealed.
SB368, s. 67 23Section 67. 281.36 (2) (a) of the statutes is renumbered 281.36 (3b) (b) and
24amended to read:
SB368,17,10
1281.36 (3b) (b) No person may discharge dredged material or fill material into
2a nonfederal wetland unless the discharge is authorized by a water quality
3certification
wetland general permit or individual permit issued by the department
4under this section or the discharge is exempt under sub. (4). No person may violate
5any condition imposed by the department in a water quality certification contained
6in a wetland general or individual permit issued by the department
under this
7section. The department may not issue a water quality certification wetland general
8or individual permit
under this section unless it determines that the discharge
9authorized pursuant to the wetland general or individual permit will comply with all
10applicable water quality standards.
SB368, s. 68 11Section 68. 281.36 (2) (b) of the statutes is repealed.
SB368, s. 69 12Section 69. 281.36 (3) of the statutes is renumbered 281.36 (2m) and amended
13to read:
SB368,18,514 281.36 (2m) Delineation procedures. For purposes of delineating the
15boundary of a nonfederal wetland, the department and the person who is applying
16for or who holds a water quality certification under this section shall use
under this
17section,
the procedures contained in the wetlands delineation manual published by
18the U.S. army corps of engineers shall be used. The edition of the manual that shall
19be used shall be the 1987 edition of the manual and any document that the U.S. army
20corps of engineers issues interpreting that manual, unless the U.S. army corps of
21engineers publishes an edition of the manual after January 9, 2001, and the
22department by rule designates that edition as the one to be used under this
23subsection. If the U.S. army corps of engineers issues a guidance document
24interpreting the edition of the wetlands delineation manual that the department is
25required to use under this subsection and if that guidance document is issued after

1May 8, 2001, the department shall notify the appropriate standing committee of each
2house of the legislature, as determined by the speaker of the assembly and the
3president of the senate, of the issuance of the guidance document and whether the
4department intends to promulgate a rule incorporating the provisions of the
5guidance document.
SB368, s. 70 6Section 70. 281.36 (3b) (title) of the statutes is created to read:
SB368,18,77 281.36 (3b) (title) Permit required.
SB368, s. 71 8Section 71. 281.36 (3b) (a) of the statutes is created to read:
SB368,18,119 281.36 (3b) (a) For purposes of this section, a wetland general or individual
10permit issued by the department constitutes water quality certification as required
11by 33 USC 1341 (a).
SB368, s. 72 12Section 72. 281.36 (3g) (title) of the statutes is created to read:
SB368,18,1313 281.36 (3g) (title) Wetland general permits.
SB368, s. 73 14Section 73. 281.36 (3g) (a) of the statutes is created to read:
SB368,18,1615 281.36 (3g) (a) Required permits. The department shall issue a wetland
16general permit for each of the following types of discharges:
SB368,18,1917 1. A discharge that is necessary for the treatment or disposal of hazardous
18waste or toxic pollutants, if the discharge does not contain hazardous waste or toxic
19pollutants and does not affect more than 2 acres of wetland.
SB368,18,2120 2. A discharge that is necessary for temporary access and dewatering, if the
21discharge does not affect more than 2 acres of wetland.
SB368,18,2322 3. A temporary or permanent discharge for routine utility construction and
23maintenance projects and activities.
SB368,19,224 4. A discharge that is part of a development for industrial purposes, if the
25discharge does not affect more than 10,000 square feet of wetland. For purposes of

1this subdivision, the development of a waste disposal site is considered to be a
2development for industrial purposes.
SB368,19,43 5. A discharge that is part of a development for commercial purposes, if the
4discharge does not affect more than 10,000 square feet of wetland.
SB368,19,65 6. A discharge that is part of a development for residential purposes, if the
6discharge does not affect more than 10,000 square feet of wetland.
SB368,19,87 7. A discharge that is part of a development for agricultural purposes, if the
8discharge does not affect more than 10,000 square feet of wetland.
SB368,19,109 8. A discharge that is part of a development for municipal purposes, if the
10discharge does not affect more than 10,000 square feet of wetland.
SB368,19,1211 9. A discharge that is part of a development for recreational purposes, if the
12discharge does not affect more than 10,000 square feet of wetland.
SB368,19,1613 10. A discharge that is necessary for the construction, reconstruction, or
14maintenance of a bridge or culvert that is part of a transportation project that is
15being carried out under the direction and supervision of a city, village, town, or
16county.
SB368, s. 74 17Section 74. 281.36 (3g) (c) of the statutes is created to read:
SB368,19,2018 281.36 (4) (3g) (c) Additional permits. The department may issue wetland
19general permits, in addition to those required under pars. (a) and (b), to regulate
20other discharges that affect wetlands located in this state.
SB368, s. 75 21Section 75. 281.36 (3g) (d) of the statutes is created to read:
SB368,20,222 281.36 (3g) (d) Requirements; conditions; restrictions. In issuing wetland
23general permits under this subsection, the department shall establish requirements,
24conditions, and exceptions to ensure that the discharges will cause only minimal
25adverse environmental effects. As part of a general permit, the department may

1prohibit discharges into wetlands that are identified by the department as being one
2of the following:
SB368,20,33 1. Great Lakes ridge and swale complexes.
SB368,20,44 2. Interdunal wetlands.
SB368,20,55 3. Coastal plain marshes.
SB368,20,66 4. Emergent marshes containing wild rice.
SB368,20,77 5. Ephemeral ponds in wooded settings.
SB368,20,88 6. Boreal rich fens.
SB368,20,99 7. Calcareous fens.
SB368, s. 76 10Section 76. 281.36 (3g) (e) of the statutes is created to read:
SB368,20,1411 281.36 (3g) (e) Period of validity; subsequent actions. A wetland general permit
12issued under this subsection is valid for a period of 5 years. Upon compliance with
13the requirements under pars. (f) to (g), the department may renew, modify, or revoke
14a wetland general permit issued under this subsection.
SB368, s. 77 15Section 77. 281.36 (3g) (f) of the statutes is created to read:
SB368,20,1916 281.36 (3g) (f) Public notice. The department shall provide to interested
17members of the public notices of its intention to issue, renew, modify, or revoke a
18wetland general permit under this subsection. Procedures for providing public
19notices shall include all of the following:
SB368,20,2020 1. Publication of a class 1 notice under ch. 985.
SB368,20,2221 2. Providing a copy of the notice to any person or group upon request of the
22person or group.
SB368,20,2323 3. Publication of the notice on the department's Internet Web site.
SB368, s. 78 24Section 78. 281.36 (3g) (fg) of the statutes is created to read:
SB368,21,4
1281.36 (3g) (fg) Date of notice. For the purpose of determining the date on
2which public notice is provided under this subsection, the date on which the
3department first publishes the notice on its Internet Web site shall be considered the
4date of public notice.
SB368, s. 79 5Section 79. 281.36 (3g) (fm) of the statutes is created to read:
SB368,21,116 281.36 (3g) (fm) Written comments. The department shall provide a period of
7not less than 30 days after the date of the public notice during which time interested
8persons may submit their written comments on the department's intention to issue,
9renew, modify, or revoke a wetland general permit under this subsection. All written
10comments submitted during the period for comment shall be retained by the
11department and considered by the department in acting on the general permit.
SB368, s. 80 12Section 80. 281.36 (3g) (fr) of the statutes is created to read:
SB368,21,1513 281.36 (3g) (fr) Description in notice. Every public notice provided by the
14department under par. (f) shall include a description of the discharges to be
15authorized under the wetland general permit.
SB368, s. 81 16Section 81. 281.36 (3g) (g) of the statutes is created to read:
SB368,21,2317 281.36 (3g) (g) Public informational hearing. 1. The department shall provide
18an opportunity for any interested state agency or federal agency or person or group
19of persons to request a public informational hearing with respect to the department's
20intention to issue, renew, modify, or revoke a wetland general permit under this
21subsection. The request for the hearing shall be filed with the department within 30
22days after the provision of the public notice under par. (f) and shall indicate the
23interest of the party filing the request and the reasons why the hearing is warranted.
SB368,22,224 2. The department shall hold a public informational hearing upon a request
25under subd. 1. if the department determines that there is a significant public interest

1in holding such a hearing. Hearings held under this subsection are not contested
2cases under s. 227.01 (3).
SB368,22,93 3. Public notice of any hearing held under this subsection shall be circulated
4in accordance with the requirements under par. (f). The public notice shall include
5the time, date, and location of the hearing, a summary of the subject matter of the
6wetland general permit, and information indicating where additional information
7about the general permit may be viewed on the department's Internet Web site. The
8summary shall contain a brief, precise, easily understandable, plain language
9description of the subject matter of the general permit.
SB368, s. 82 10Section 82. 281.36 (3g) (h) of the statutes is created to read:
SB368,23,211 281.36 (3g) (h) Authorizations for discharges under wetland general permits.
121. A person wishing to proceed with a discharge that may be authorized under a
13wetland general permit shall apply to the department, with written notification of
14the person's wish to proceed, not less than 30 days before commencing the discharge
15authorized by the general permit unless subd. 4. applies. The application shall
16provide information describing the discharge in order to allow the department to
17determine whether the discharge is authorized by the wetland general permit and
18shall give the department consent to enter and inspect the site, subject to sub. (9).
19The application shall identify all activities affecting wetlands that will be conducted
20as part of the total project. The application shall include a detailed explanation of
21why the impact to the wetland cannot be avoided and how the impact to the wetland
22will be minimized to the greatest extent practicable. The application shall be
23accompanied by the fee specified in sub. (12) (a) 1. If the application is for
24authorization to proceed under a wetland general permit that is issued under sub.
25(3g) (a) 4., 5., or 6., the application shall be accompanied by a surcharge fee, as

1calculated under sub. (11). The department may make a request for additional
2information one time during this 30-day period.
SB368,23,93 2. If, within 30 days after an application under subd. 1. is received by the
4department, the department does not either request additional information or
5inform the applicant that a wetland individual permit will be required as provided
6in par. (i), the discharge shall be considered to be authorized under the wetland
7general permit and the applicant may proceed without further notice, hearing,
8permit, or approval if the discharge is carried out in compliance with all of the
9conditions of the general permit.
SB368,23,1310 3. If the department requests additional information under subd. 1., the
1130-day period is tolled from the date the person applying for authorization to proceed
12receives the request until the date on which the department receives all of the
13additional information.
SB368,23,1814 4. As part of a wetland general permit issued under par. (b) or (c), the
15department may waive the requirement that a person wishing to proceed under the
16general permit apply to the department as required under this paragraph so that the
17person may proceed with the discharge without specific authorization from the
18department.
SB368,23,2019 5. Authorization to proceed under a wetland general permit is valid for 5 years
20after the date on which the discharge is considered to be authorized.
SB368, s. 83 21Section 83. 281.36 (3g) (i) of the statutes is created to read:
SB368,24,422 281.36 (3g) (i) Wetland individual permit in lieu of wetland general permit. For
23a proposed discharge for which an application has been received by the department
24under par. (h), the department may decide to require that a person who submitted
25the application apply for a wetland individual permit if the department has

1inspected the site as provided in par. (h) and has determined that conditions specific
2to the site require additional restrictions on the discharge in order to provide
3reasonable assurance that no significant adverse impacts to wetland functional
4values will occur.
SB368, s. 84 5Section 84. 281.36 (3m) of the statutes is created to read:
SB368,24,156 281.36 (3m) Wetland individual permits. (a) When permit required. Any
7person wishing to proceed with a discharge into any wetland shall submit an
8application for a wetland individual permit under this subsection unless the
9discharge has been authorized under a wetland general permit as provided in sub.
10(3g) or is exempt under sub. (4). Before submitting the application, the department
11shall hold a meeting with the applicant to discuss the details of the proposed
12discharge and the requirements for submitting the application and for delineating
13the wetland. An applicant may include in the application a request for a public
14informational hearing. The application shall be accompanied by the applicable fee
15specified in sub. (11) or (12) (a) 1.
SB368,24,2016 (b) Analysis of practicable alternatives. An applicant shall include in an
17application submitted under par. (a) an analysis of the practicable alternatives that
18will avoid and minimize the adverse impacts of the discharge on wetland functional
19values and that will not result in any other significant adverse environmental
20consequences.
SB368,25,321 (c) Review; no additional information required. In issuing wetland individual
22permits under this section, the department shall review an application, and within
2330 days after the application is submitted, the department shall determine that
24either the application is complete or that additional information is needed. If the
25department determines that the application is complete, the department shall notify

1the applicant in writing of that fact within the 30-day period, and the date on which
2the notice under this paragraph is sent shall be considered the date of closure for
3purposes of par. (g) 1.
SB368,25,154 (d) Additional information requested. If the department determines that the
5application is incomplete, the department shall notify the applicant in writing and
6may make only one request for additional information during the 30-day period
7specified in par. (c). Within 10 days after receiving all of the requested information
8from the applicant, the department shall notify the applicant in writing as to
9whether the application is complete. The date on which the 2nd notice under this
10paragraph is sent shall be set as the date of closure for purposes of par. (g) 1. The
11department may request additional information from the applicant to supplement
12the application, but the department may not request items of information that are
13outside the scope of the original request unless the applicant and the department
14both agree. A request for any such additional information may not affect the date
15of closure.
SB368,25,1916 (e) Specificity of notice; limits on information. Any notice stating that an
17application has been determined to be incomplete or any other request for
18information that is sent under par. (d) shall state the reason for the determination
19or request and the specific items of information that are still needed.
SB368,25,2320 (f) Failure to meet time limits. If the department fails to meet the 30-day time
21limit under par. (c) or 10-day time limit under par. (d), the application shall be
22considered to have a date of closure that is the last day of that 30-day or 10-day time
23period for purposes of par. (g) 1.
SB368,26,324 (g) Notice of application. 1. Within 15 days after the date of closure, as
25determined under par. (c) or (d), the department shall provide notice of pending

1application to interested members of the public. If the applicant has requested a
2public informational hearing as part of the submitted application, a notice of the
3public hearing shall be part of the notice of pending application.
SB368,26,84 2. If the notice of pending application does not contain a notice of public
5informational hearing, any person may request a public informational hearing in
6writing or the department may decide to hold a public informational hearing with
7or without a request being submitted if the department determines that there is a
8significant public interest in holding a hearing.
SB368,26,159 (h) Request for hearing. A request for a public informational hearing under par.
10(g) 2. must be submitted to the department or the department's decision to hold a
11public informational hearing must occur within 20 days after the department
12provides the notice of pending application. The department shall provide notice of
13public informational hearing within 15 days after the request for the public hearing
14is submitted or the department makes its decision to hold a public informational
15hearing.
SB368,26,2416 (i) Decision. Within 20 days after the period for public comment under par. (j)
17has ended or if no public informational hearing is held, within 30 days after the
1830-day comment period under par. (j) has ended, the department shall render a
19decision issuing or denying the wetland individual permit that is the subject of the
20application submitted under par. (a). If the decision issued by the department under
21this paragraph is a denial, the department shall include in the decision the specific
22grounds and reasons as to how the applicable provisions of this section were not met.
23If the denial is based on an incomplete application, the department shall inform the
24applicant of the areas of the application that were incomplete.
SB368,27,8
1(j) Public comment. 1. The department shall provide a period for public
2comment after the department has provided a notice of pending application under
3par. (g) during which time any person may submit written comments with respect
4to the application for a wetland individual permit. The department shall retain all
5of the written comments submitted during this period and shall consider all of the
6comments in rendering a decision on the application. The period for public comment
7shall end on the 30th day following the date on which the department provides the
8notice of pending application except as provided in subd. 2.
SB368,27,109 2. If a public informational hearing is held, the period for public comment shall
10end on the 10th day following the date on which the hearing is completed.
SB368, s. 85 11Section 85. 281.36 (3n) of the statutes is created to read:
SB368,27,2412 281.36 (3n) Review by department. (a) Review limits. For the purpose of
13issuing a wetland individual permit, during the period between the date on which
14the application under sub. (3m) (a) is submitted and the date on which a decision
15under sub. (3m) (i) is rendered, the department shall conduct its review under this
16subsection. The department shall review the analysis of practicable alternatives
17presented in the application under sub. (3m) (b). The department shall limit its
18review to those practicable alternatives that are located at the site of the discharge
19and that are located adjacent to that site if the applicant has demonstrated that the
20proposed project causing the discharge will result in a demonstrable economic
21benefit, that the proposed project is necessary for the expansion of an existing
22industrial or commercial facility that is in existence at the time the application is
23submitted, or that the proposed project will occur in an industrial park that is in
24existence at the time the application is submitted.
SB368,28,3
1(b) Factors used in review. In its review under par. (a), the department shall
2consider all of the following factors when it assesses the impacts to wetland
3functional values:
SB368,28,44 1. The direct impacts of the proposed project to wetland functional values.
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