(i) Wetland individual permit in lieu of wetland general permit.
a proposed discharge for which an application has been received by the department 24
under par. (h), the department may decide to require that a person who submitted 25
the application apply for a wetland individual permit if the department has
inspected the site as provided in par. (h) and has determined that conditions specific 2
to the site require additional restrictions on the discharge in order to provide 3
reasonable assurance that no significant adverse impacts to wetland functional 4
values will occur.
SB368, s. 84
281.36 (3m) of the statutes is created to read:
281.36 (3m) Wetland individual permits.
(a) When permit required.
person wishing to proceed with a discharge into any wetland shall submit an 8
application for a wetland individual permit under this subsection unless the 9
discharge 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 11
shall hold a meeting with the applicant to discuss the details of the proposed 12
discharge and the requirements for submitting the application and for delineating 13
the wetland. An applicant may include in the application a request for a public 14
informational hearing. The application shall be accompanied by the applicable fee 15
specified in sub. (11) or (12) (a) 1.
(b) Analysis of practicable alternatives.
An applicant shall include in an 17
application submitted under par. (a) an analysis of the practicable alternatives that 18
will avoid and minimize the adverse impacts of the discharge on wetland functional 19
values and that will not result in any other significant adverse environmental 20
(c) Review; no additional information required.
In issuing wetland individual 22
permits under this section, the department shall review an application, and within 23
30 days after the application is submitted, the department shall determine that 24
either the application is complete or that additional information is needed. If the 25
department determines that the application is complete, the department shall notify
the applicant in writing of that fact within the 30-day period, and the date on which 2
the notice under this paragraph is sent shall be considered the date of closure for 3
purposes of par. (g) 1.
(d) Additional information requested.
If the department determines that the 5
application is incomplete, the department shall notify the applicant in writing and 6
may make only one request for additional information during the 30-day period 7
specified in par. (c). Within 10 days after receiving all of the requested information 8
from the applicant, the department shall notify the applicant in writing as to 9
whether the application is complete. The date on which the 2nd notice under this 10
paragraph is sent shall be set as the date of closure for purposes of par. (g) 1. The 11
department may request additional information from the applicant to supplement 12
the application, but the department may not request items of information that are 13
outside the scope of the original request unless the applicant and the department 14
both agree. A request for any such additional information may not affect the date 15
(e) Specificity of notice; limits on information.
Any notice stating that an 17
application has been determined to be incomplete or any other request for 18
information that is sent under par. (d) shall state the reason for the determination 19
or request and the specific items of information that are still needed.
(f) Failure to meet time limits.
If the department fails to meet the 30-day time 21
limit under par. (c) or 10-day time limit under par. (d), the application shall be 22
considered to have a date of closure that is the last day of that 30-day or 10-day time 23
period for purposes of par. (g) 1.
(g) Notice of application.
1. Within 15 days after the date of closure, as 25
determined under par. (c) or (d), the department shall provide notice of pending
application to interested members of the public. If the applicant has requested a 2
public informational hearing as part of the submitted application, a notice of the 3
public hearing shall be part of the notice of pending application.
2. If the notice of pending application does not contain a notice of public 5
informational hearing, any person may request a public informational hearing in 6
writing or the department may decide to hold a public informational hearing with 7
or without a request being submitted if the department determines that there is a 8
significant public interest in holding a hearing.
(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 11
public informational hearing must occur within 20 days after the department 12
provides the notice of pending application. The department shall provide notice of 13
public informational hearing within 15 days after the request for the public hearing 14
is submitted or the department makes its decision to hold a public informational 15
Within 20 days after the period for public comment under par. (j) 17
has ended or if no public informational hearing is held, within 30 days after the 18
30-day comment period under par. (j) has ended, the department shall render a 19
decision issuing or denying the wetland individual permit that is the subject of the 20
application submitted under par. (a). If the decision issued by the department under 21
this paragraph is a denial, the department shall include in the decision the specific 22
grounds and reasons as to how the applicable provisions of this section were not met. 23
If the denial is based on an incomplete application, the department shall inform the 24
applicant of the areas of the application that were incomplete.
(j) Public comment.
1. The department shall provide a period for public 2
comment after the department has provided a notice of pending application under 3
par. (g) during which time any person may submit written comments with respect 4
to the application for a wetland individual permit. The department shall retain all 5
of the written comments submitted during this period and shall consider all of the 6
comments in rendering a decision on the application. The period for public comment 7
shall end on the 30th day following the date on which the department provides the 8
notice of pending application except as provided in subd. 2.
2. If a public informational hearing is held, the period for public comment shall 10
end on the 10th day following the date on which the hearing is completed.
SB368, s. 85
281.36 (3n) of the statutes is created to read:
281.36 (3n) Review by department.
For the purpose of 13
issuing a wetland individual permit, during the period between the date on which 14
the application under sub. (3m) (a) is submitted and the date on which a decision 15
under sub. (3m) (i) is rendered, the department shall conduct its review under this 16
subsection. The department shall review the analysis of practicable alternatives 17
presented in the application under sub. (3m) (b). The department shall limit its 18
review to those practicable alternatives that are located at the site of the discharge 19
and that are located adjacent to that site if the applicant has demonstrated that the 20
proposed project causing the discharge will result in a demonstrable economic 21
benefit, that the proposed project is necessary for the expansion of an existing 22
industrial or commercial facility that is in existence at the time the application is 23
submitted, or that the proposed project will occur in an industrial park that is in 24
existence at the time the application is submitted.
(b) Factors used in review.
In its review under par. (a), the department shall 2
consider all of the following factors when it assesses the impacts to wetland 3
1. The direct impacts of the proposed project to wetland functional values.
2. The cumulative impacts attributable to the proposed project that may occur 6
to wetland functional values based on past impacts or reasonably anticipated 7
impacts caused by similar projects in the area affected by the project.
3. Potential secondary impacts of the proposed project to wetland functional 9
4. The impact on functional values resulting from the mitigation that is 11
required under sub. (3r).
5. The net positive or negative environmental impact of the proposed project.
(c) Standards for issuing permits.
The department shall make a finding that 14
a proposed project causing a discharge is in compliance with water quality standards 15
and that a wetland individual permit may be issued if the department determines 16
that all of the following apply:
1. The proposed project represents the least environmentally damaging 18
practicable alternative taking into consideration practicable alternatives that avoid 19
2. All practicable measures to minimize the adverse impacts to wetland 21
functional values will be taken.
3. The proposed project will not result in significant adverse impact to wetland 23
functional values, in significant adverse impact to water quality, or in other 24
significant adverse environmental consequences.
(d) Mitigation required.
The department shall require mitigation under the 2
program established under sub. (3r) for wetland individual permits it issues under 3
SB368, s. 86
281.36 (3p) of the statutes is created to read:
281.36 (3p) Notice requirements; wetland individual permits.
(a) The 6
department shall establish procedures for providing notices of pending applications 7
and notices of public informational hearings to be provided under sub. (3m). The 8
procedures shall require all of the following:
1. That the notice be published as a class 1 notice under ch. 985.
2. That the notice be mailed to any person or group upon request of the person 11
3. That the notice be published on the department's Internet Web site.
(b) The department shall prescribe the form and content of notices of pending 14
applications and notices of public informational hearings to be provided under sub. 15
(3m). Each notice shall include all of the following information:
1. The name and address of the applicant.
2. A brief description of the discharge that requires the permit and the project 18
that includes the discharge.
3. For a notice of a public informational hearing, the time, date, and location 20
of the hearing.
4. For a notice of pending application and a notice of a public informational 22
hearing, a brief, precise, easily understandable, plain-language description of the 23
discharge and information indicating where the pending application may be viewed 24
on the department's Internet Web site.
5. For a notice of complete application and a notice of a public informational 2
hearing, a statement of the tentative determination of the department on the permit.
6. For a notice of complete application and a notice of public informational 4
hearing, a brief description of the procedures for the formulation of final 5
determinations, including a description of the comment period required under sub. 6
(c) For the purpose of determining the date on which notice is provided under 8
this subsection, the date of the notice shall be the date on which the department first 9
publishes the notice on its Internet Web site, unless the department delegates to the 10
applicant under par. (d) the requirement to provide notice. If the department 11
delegates to the applicant the requirement to provide notice, the date of the notice 12
shall be the date on which the department first publishes the notice on its Internet 13
Web site or 10 days after the date on which the department receives satisfactory proof 14
of publication of a class 1 notice from the applicant, whichever is later.
(d) The department may delegate the department's requirement to provide 16
notice under sub. (3m) in the manner specified in par. (a) 1. and 2. by doing any of 17
1. Requiring that the applicant for the permit provide by publication, mailing, 19
or other distribution one or more of the notices.
2. Requiring that the applicant for the permit pay for the publication, mailing, 21
or any other distribution costs of providing one or more of the notices.
SB368, s. 87
281.36 (3r) of the statutes is created to read:
281.36 (3r) Mitigation; in lieu fee subprogram.
(a) The department shall 24
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 2
1. Purchasing credits from a mitigation bank located in this state.
2. Participating in the in lieu fee subprogram, if such a subprogram is 5
established under par. (e).
3. Completing mitigation within the same watershed or within one-half mile 7
of the site of the discharge.
(b) Under the mitigation program, mitigation as specified in par. (a) 1. and 9
participation in the in lieu fee subprogram, if established under par. (a) 2. shall be 10
the preferred types of mitigation.
(c) The department shall establish a system of service areas for the mitigation 12
banks under the mitigation program that is geographically based on the locations of 13
the major watersheds in the state. The system shall be consistent with federal 14
(d) The department shall establish under the mitigation program mitigation 16
ratios that are consistent with the federal regulations that apply to mitigation and 17
mitigation banks but the minimum ratio shall be at least 1.2 acres for each acre 18
affected by the discharge.
(e) As part of the mitigation program established under par. (a), the department 20
may establish an in lieu fee subprogram, in consultation with the army corps of 21
engineers, under which payments are made to the department or another entity for 22
the purposes of restoring, enhancing, creating, or preserving wetlands or other water 23
resource features. The department shall establish requirements for calculating the 24
in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit 25
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 2
establish reasonable restrictions on the use of the land by the public in order to 3
protect public safety or to protect a unique plant or animal community. The 4
subprogram shall be consistent with federal regulations.
SB368, s. 88
281.36 (4) (intro.) of the statutes is amended to read:
281.36 (4) Exemptions.
(intro.) Except as provided in sub. (5), the certification 7permitting
requirement under sub. (2)
does not apply to any discharge that is 8
the result of any of the following activities:
SB368, s. 89
281.36 (4) (b) of the statutes is amended to read:
(b) Maintenance, emergency repair, or reconstruction of damaged 11
parts of structures that are in use in a nonfederal
SB368, s. 90
281.36 (4) (e) 1. of the statutes is amended to read:
(e) 1. That the flow and circulation patterns and chemical and 14
biological characteristics of the affected nonfederal
wetland are not impaired.
SB368, s. 91
281.36 (4) (e) 2. of the statutes is amended to read:
(e) 2. That the reach of the affected nonfedera
l wetland is not 17
SB368, s. 92
281.36 (4) (e) 3. of the statutes is amended to read:
(e) 3. That any adverse effect on the aquatic environment of the 20
wetland is minimized to the degree required by the department.
SB368, s. 93
281.36 (5) (intro.) of the statutes is amended to read:
281.36 (5) Inapplicability of exemptions.
(intro.) Notwithstanding sub. (4), 23
a discharge that would be exempt under sub. (4) is subject to the
requirement under sub. (2)
if the discharge is incidental to an activity 25
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 2
any of the following:
SB368, s. 94
281.36 (5) (a) of the statutes is amended to read:
(a) Impair the flow or circulation of any
SB368, s. 95
281.36 (5) (b) of the statutes is amended to read:
(b) Reduce the reach of any nonfederal
SB368, s. 96
281.36 (6) (a) 1. of the statutes is amended to read:
(a) 1. Make the rules consistent with existing federal law or
SB368, s. 97
281.36 (7) of the statutes is repealed.
SB368, s. 98
281.36 (8) (title) of the statutes is repealed.
SB368, s. 99
281.36 (8) (a) of the statutes is repealed.
SB368, s. 100
281.36 (8) (b) of the statutes is repealed.
SB368, s. 101
281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and 15
amended to read:
(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
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, s. 102
281.36 (8) (bn) 2. of the statutes is repealed.
SB368, s. 103
281.36 (8) (c) of the statutes is repealed.
SB368, s. 104
281.36 (8) (d) of the statutes is repealed.
SB368, s. 105
281.36 (8) (e) of the statutes is repealed.
SB368, s. 106
281.36 (9) (a) (intro.) of the statutes is amended to read:
(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 7
representative of the department, upon presenting his or her credentials, may do any 8
of the following:
SB368, s. 107
281.36 (9) (a) 1. of the statutes is amended to read:
(a) 1. Enter and inspect any property on which is located a nonfederal 11
or part of a nonfederal
wetland, for which an application for a water quality
has been submitted to the department
under sub. (3g) or (3m)
SB368, s. 108
281.36 (9) (a) 2. of the statutes is amended to read:
(a) 2. Enter and inspect any property on which is located a nonfederal 15
wetland to investigate a discharge of dredged or fill material
that the department has 16
reason to believe is in violation of this section.
SB368, s. 109
281.36 (9) (a) 3. of the statutes is amended to read:
(a) 3. Gain access to and inspect any records that the department
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
SB368, s. 110
281.36 (9) (am) to (c) of the statutes are repealed.