2015 - 2016 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 3,
TO SENATE BILL 459
February 12, 2016 - Offered by Senator Cowles.
1An Act to repeal
30.01 (1am) (c) and 30.12 (3) (a) 6. a., b. and c.; to renumber
281.16 (2) (am) 1. a.; to renumber and amend
30.12 (3) (a) 6. (intro.), 30.121 3
(3c), 30.121 (3w) (c) and 281.36 (3n) (a); to amend
30.01 (1am) (a), (b) and (bm), 4
30.01 (1d), 30.025 (5), 30.12 (1k) (f), 30.12 (3) (a) 13., 30.12 (3) (c), 30.121 (1), 5
30.121 (3), 30.19 (1b) (a), 30.19 (1g) (a), 30.19 (1g) (am), 31.02 (1), 31.185 (5) and 6
281.36 (3m) (b); and to create
30.01 (1am) (d), (e), (f), (g) and (h), 30.01 (3c), 7
30.01 (6b), 30.053, 30.12 (3m) (cr), 30.121 (3c) (c), 30.121 (3w) (c) 3., 30.19 (1m) 8
(dm), 30.19 (4) (d), 281.16 (1) (bg), 281.16 (2) (c), 281.36 (1) (am), 281.36 (1) (ct), 9
281.36 (3n) (a) 2. and 3., 281.36 (3n) (am) and 281.36 (4) (f) of the statutes; 10relating to: the regulation of navigable waters and wetlands.
Analysis by the Legislative Reference Bureau
This substitute amendment makes various changes to the regulation of
navigable waters, artificial water bodies, wetlands, and nonpoint source pollution.
Applicability of navigable water law to artificial water bodies
Under this substitute amendment, except in the laws that govern boating and
unless specifically provided otherwise, the statutes that regulate navigable waters
and harbors do not apply to an artificial water body that is not hydrologically
connected to a natural navigable waterway and that does not discharge into a
natural navigable waterway except as a result of storm events. An artificial water
body is a body of water that does not have a history of being a lake or stream or of
being part of a lake or stream.
The level and flow of water
Under the substitute amendment, the Department of Natural Resources may
regulate and control the level and flow of water in all navigable waters in the interest
of public rights in navigable waters; to promote safety; and to protect life, health,
property, property values, and economic values.
Navigable water permits
Under current law, a person must obtain one or more permits from DNR in
order to conduct certain activities in or near navigable waterways, including placing
structures or deposits in navigable waters; constructing or maintaining bridges and
culverts; enlarging or connecting waterways; altering the courses of streams and
rivers; removing material from the bed of a navigable waterway; and constructing,
dredging, or enlarging an artificial water body that connects with a navigable
waterway or that is located within 500 feet of the ordinary high-water mark of an
existing navigable waterway. The bed of a navigable water includes the area
between the water's edge and the ordinary high-water mark (shoreline area).
Under current law, some activities are exempt from these permitting
requirements, some activities require that the person be issued an individual permit
for the activity, and some activities are authorized under statewide general permits.
If a general permit covers an activity, the person proposing to conduct the activity
must notify DNR that the person wishes to proceed with the activity. If DNR does
not request additional information or notify the person that an individual permit will
be required within 30 days after receipt of the notification, the person may proceed
with the activity.
This substitute amendment does the following with respect to general permits
and individual permits to conduct activities in navigable waters:
1. Exempts from the permit requirements the dredging of an artificial water
body that does not connect with a navigable waterway.
2. Establishes that a permit is required to construct or enlarge an artificial
water body that is within 500 feet of the ordinary high-water mark of an existing
navigable waterway but that does not or will not connect with the existing navigable
3. Limits the types of areas that DNR may identify as areas of special natural
resource interest (ASNRI). Under current law, a riparian owner is exempt from the
permit requirement for depositing material or placing a structure on the bed of
certain navigable waters if the structure or material is located in an area other than
an ASNRI, does not interfere with riparian rights of other riparian owners, and is
a certain type of structure or material.
Structures in navigable waters
Under this substitute amendment, a DNR decision that a riparian owner does
not fall under an exemption to the prohibition on placing a pier or wharf on the bed
of a navigable water may be challenged only through a declaratory judgment
proceeding in the circuit court for the county in which the riparian property is located
and is not subject to a contested case hearing or judicial review under the statutory
administrative review procedures. Under current law, a DNR decision against the
riparian owner is subject to a new trial.
This substitute amendment changes the definition of a "boathouse" to specify
that a boathouse is a structure used for one or more years for the storage of watercraft
and associated materials regardless of its current use. The substitute amendment
also makes various changes to the regulation of boathouses, including:
1. Adds as a condition to the repair and maintenance of a boathouse or fixed
houseboat extending beyond the ordinary high-water mark that is allowed if within
certain cost limits under current law that the repair or maintenance may not involve
the placement of a floor over a wet bay.
2. Adds foundations to the list of structural elements of a boathouse or fixed
houseboat that may be replaced within the current cost limit on repairing and
maintaining a boathouse or fixed houseboat.
3. Allows the repair or maintenance of a boathouse in existence on December
16, 1979, to affect the configuration of the boathouse and still fall under the exception
to the cost limit on repairing and maintaining such a boathouse, but adds a condition
that the repair or maintenance may not involve the placement of a floor over a wet
bay in the boathouse.
Under current law, a boat shelter is a structure used for the storage of
watercraft and associated materials that has no walls or sides. This substitute
amendment prohibits DNR from placing, on a general permit authorizing a riparian
owner to place a boat shelter, conditions relating to the location of the shelter and
other existing structures. Under the substitute amendment, DNR may impose
conditions on the general permit governing the architectural features of boat
shelters and the number of boat shelters that may be placed adjacent to a parcel of
land, but those conditions may not govern the distance that a boat shelter will extend
from the shore, except to prohibit the boat shelter from extending beyond the line of
navigation, and may not be based on the degree to which adjacent land is developed.
Also under the substitute amendment, in determining whether to issue an
individual permit to the owner of a proposed permanent boat shelter, DNR may not
deny the permit on the basis of the distance at which a boat shelter will extend from
the shore or the degree to which adjacent land is developed, except that DNR may
deny the permit on the basis that the boat shelter will extend beyond the line of
This substitute amendment requires DNR, in the general permit authorizing
a riparian owner to replace an existing seawall for which DNR has issued a permit,
to authorize a seawall for which DNR granted an exemption from a permit
requirement or for which no permit was required when the seawall was built. The
substitute amendment also provides that DNR may impose conditions on the
replacement of a seawall located in an ASNRI only if those conditions do not prohibit
the replacement of a seawall located in an ASNRI.
Current law requires DNR to issue certain wetland general permits for
discharges to wetlands 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. Current law allows DNR to establish
different requirements, conditions, and exceptions in general permits to ensure that
the discharges will cause only minimal adverse environmental effects. Current law
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 navigable
waters. Current law also authorizes DNR to require a person to apply for 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
This substitute amendment exempts from the permitting requirement any
discharge that is the result of maintaining a sedimentation or stormwater detention
basin and associated conveyance features.
Practicable alternatives review
Under current law, DNR reviews the practicable alternatives presented in an
application for a individual permit and must find that the project complies with
wetland quality standards if it 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 result 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.
Current law requires DNR to limit its review of practicable alternatives to those
that are located at the site of the discharge or adjacent to that site if the applicant
has demonstrated that the proposed project causing the discharge will result in a
demonstrable economic public benefit, that the proposed project is necessary for the
expansion of an existing industrial, commercial, or agricultural facility that is in
existence at the time the application is submitted, or that the proposed project will
occur in an industrial park that is in existence at the time the application is
submitted. This substitute amendment instead requires DNR to limit its review of
practicable alternatives to those that are located at the site of the discharge or
adjacent to that site if only one of those conditions is met.
This substitute amendment also requires DNR to limit its review of practicable
alternatives to those located on the property owned by the applicant for projects
involving fewer than two acres of wetland if the project is limited to either the
construction or expansion of a single-family home and attendant features, the
construction or expansion of a barn or farm buildings, or the expansion of a small
business project. However, the substitute amendment provides that a lot created as
part of a subdivision, land division, or other development initiated after July 1, 2012,
is not eligible for this limited review.
The substitute amendment requires DNR to limit its review of practicable
alternatives to those that are consistent with the overall purpose and scope of the
project. The substitute amendment also requires DNR to impose a level of scrutiny
and to require an applicant to provide an amount of information that is
commensurate with the severity of the environmental impact of the project, as
determined by DNR.
Utility permit procedure
Under current law, with certain exceptions, a public utility may not begin
construction on a utility project, and no person, including a public utility, may
construct a large electric generating facility or a high-voltage transmission line,
unless the Public Service Commission has issued a certificate for the project. A
public utility is a company or municipality that produces or delivers heat, light,
water, or power to or for the public.
Generally, under current law, a person must submit an application to DNR for
each required permit, including an individual permit to conduct an activity in a
navigable water or a discharge in a wetland. If the applicant is a utility that is
required to obtain a certificate from the PSC, however, the utility must submit a
single application to DNR requesting all of the DNR permits that the utility is
required to obtain for a given project affecting navigable waters and wetlands and
must follow a different procedure for obtaining these DNR permits (utility
This substitute amendment removes the exemption in current law that
provides that the permit application procedures that would normally apply to an
application for an individual permit do not apply to an application for an individual
permit submitted under the utility application procedure. This substitute
amendment also removes the exemption in current law that provides that the
procedures that would normally apply to administrative and judicial review of a
DNR decision on an individual permit do not apply to decisions on an individual
permit submitted under the utility application procedure. Instead, the substitute
amendment specifies that the utility permit procedures are exclusive and apply in
lieu of any other procedures that would otherwise apply to permits applied for under
the utility permit procedure.
Nonpoint water pollution
This substitute amendment provides that, if a covered municipality has
obtained all permits required for the construction of a stormwater management pond
in an artificial water body, whether navigable or nonnavigable, DNR may not
prohibit the construction of the stormwater management pond as a method by which
the covered municipality may achieve compliance with DNR's prescribed
performance standards for sources of nonpoint water pollution, which is water
pollution from diffuse sources, or with an approved total maximum daily load
(TMDL) requirement. A covered municipality is a municipality that has been issued
an individual municipal separate storm sewer permit or that is covered by a general
municipal separate storm sewer permit. A TMDL is the maximum amount of a
pollutant that a body of water can receive and still meet water quality standards.
DNR's current rules provide that, for the purpose of determining compliance
with performance standards, DNR may give credit for the use of practices, measures,
or techniques (best management practices) that minimize pollutants carried in
runoff. The rules prohibit DNR from giving credit for a best management practice
that is located in a navigable water. The substitute amendment provides that DNR
must give credit for any pollutant reduction achieved by a pond constructed by a
covered municipality in determining compliance with performance standards
specified in a stormwater discharge permit or with an approved TMDL requirement.
The substitute amendment also provides that, if a covered municipality applies
for an individual permit for the construction of a stormwater management pond in
an artificial water body, whether navigable or nonnavigable, for the purpose of
achieving compliance with performance standards specified in a stormwater
discharge permit or with an approved TMDL requirement, in making its
determination DNR is required to take into consideration the sediment control in
and water quality improvements to the watershed as a whole that result from the
stormwater management pond.