Amendment ASA1-AB547

AB547-ASA1,13,8 281.36 (3n) (d) 1. Except as provided in subd. 2., the department shall require mitigation under the program established under sub. (3r) for wetland individual permits it issues under this subsection and for a discharge that is exempt from permitting requirements under sub. (4n) (c) that affects more than 1.5 acres of wetland. This subsection does not entitle an applicant to a wetland individual permit or any other approval in exchange for conducting mitigation.

AB547-ASA1,17 Section 17 . 281.36 (3r) (a) (intro.) of the statutes is amended to read:

AB547-ASA1,13,16 281.36 (3r) (a) (intro.) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows and, with respect to a discharge that is exempt from permitting requirements under sub. (4n) (c) that affects more than 1.5 acres of wetland, the portion of the affected wetland that exceeds 1.5 acres. Under the mitigation program, subject to par. (am), the department shall allow mitigation to be accomplished by any of the following methods:

AB547-ASA1,18 Section 18 . 281.36 (3r) (a) 4. of the statutes is repealed.

AB547-ASA1,19 Section 19 . 281.36 (3r) (am) of the statutes is created to read:

AB547-ASA1,13,23 281.36 (3r) (am) For a discharge that is exempt from permitting requirements under sub. (4n) (c), any off-site mitigation, including any mitigation conducted by a mitigation bank or under the in-lieu fee program, shall be completed within the same compensation search area, as defined by the department by rule, as the discharge.

AB547-ASA1,20 Section 20. 281.36 (3s) of the statutes is repealed.

AB547-ASA1,21 Section 21 . 281.36 (4) (title) of the statutes is amended to read:

AB547-ASA1,14,1 281.36 (4) (title) Exemptions ; certain activities.

AB547-ASA1,22 Section 22 . 281.36 (4n) of the statutes is created to read:

AB547-ASA1,14,4 281.36 (4n) Exemptions; certain nonfederal wetlands and artificial wetlands. (a) In this subsection:

AB547-ASA1,14,9 1. “Artificial wetland" means a landscape feature where hydrophitic vegetation may be present as a result of human modification to the landscape or hydrology and for which the department has no definitive evidence showing a prior wetland or stream history that existed before August 1, 1991, but does not include any of the following:

AB547-ASA1,14,11 a. A wetland that serves as a fish spawning area or a passage to a fish spawning area.

AB547-ASA1,14,12 b. A wetland created as a result of a mitigation requirement under sub. (3r).

AB547-ASA1,14,14 2. “Definitive evidence” means documentary evidence such as any of the following:

AB547-ASA1,14,15 a. Maps.

AB547-ASA1,14,16 b. Aerial photographs.

AB547-ASA1,14,17 c. Surveys that use a scale of not more than 10 feet per inch.

AB547-ASA1,14,18 d. Wetland delineations.

AB547-ASA1,14,21 3. “Rare and high quality wetland” means a wetland that is directly adjacent and contiguous to a class I or class II trout stream or that consists of 75 percent or more of any of the following wetland types:

AB547-ASA1,14,22 a. Alder thicket.

AB547-ASA1,14,23 b. Calcareous fen.

AB547-ASA1,14,24 c. Coniferous swamp.

AB547-ASA1,14,25 d. Coniferous bog.

AB547-ASA1,15,1 e. Floodplain forest.

AB547-ASA1,15,2 f. Hardwood swamp.

AB547-ASA1,15,3 g. Interdunal wetland.

AB547-ASA1,15,4 h. Open bog.

AB547-ASA1,15,5 i. Ridge and swail complex.

AB547-ASA1,15,6 j. Deep marsh.

AB547-ASA1,15,7 4. “Sewerage system” has the meaning given in s. 281.01 (14).

AB547-ASA1,15,8 5. “Urban area” means any of the following:

AB547-ASA1,15,9 a. An incorporated area.

AB547-ASA1,15,10 b. An area within one mile of an incorporated area.

AB547-ASA1,15,12 c. An area in a town that is served by a sewerage system or is in a town sanitary district.

AB547-ASA1,15,15 (b) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into a nonfederal wetland that occurs in an urban area and to which all of the following apply:

AB547-ASA1,15,16 1. The discharge does not affect more than one acre of wetland per parcel.

AB547-ASA1,15,17 2. The discharge does not affect a rare and high quality wetland.

AB547-ASA1,15,20 3. The development related to the discharge is carried out in compliance with any applicable storm water management zoning ordinance enacted under s. 59.693, 60.627, 61.354, or 62.234 or storm water discharge permit issued under s. 283.33.

AB547-ASA1,15,23 (c) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into a nonfederal wetland that occurs outside an urban area and to which all of the following apply:

AB547-ASA1,15,24 1. The discharge does not affect more than 3 acres of wetland per parcel.

AB547-ASA1,15,25 2. The discharge does not affect a rare and high quality wetland.

AB547-ASA1,16,2 3. The development related to the discharge is a structure, such as a building, driveway, or road, with an agricultural purpose.

AB547-ASA1,16,4 (d) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into an artificial wetland.

AB547-ASA1,16,8 (e) 1. A person who proposes a project that may affect a wetland or landscape feature under par. (b), (c), or (d) shall notify the department no fewer than 15 working days before initiating the project. The notice shall include one of the following to show that the wetland or landscape feature is eligible for the relevant exemption:

AB547-ASA1,16,10 a. A statement issued by a professional who has investigated the wetland and who is qualified to give such an opinion.

AB547-ASA1,16,12 b. A wetland delineation prepared by a qualified professional showing the exact location and boundaries of the wetland.

AB547-ASA1,16,17 2. Except as provided in subd. 3., if the department receives the notice and information required under subd. 1., the department shall presume that the wetland or landscape feature is eligible for the exemption unless the department, within 15 working days after receiving notification of the proposed project under subd. 1., notifies the person that one of the following conditions applies:

AB547-ASA1,16,18 a. The eligibility requirements are not met.

AB547-ASA1,16,20 b. The location and boundaries of the wetland identified in a wetland delineation included with the notification under subd. 1. are not accurate.

AB547-ASA1,16,24 c. With respect to an exemption under par. (d) only, the department determines that the landscape feature is providing significant functions that either protect adjacent or downstream property or infrastructure from flooding or significantly improve the water quality of an adjacent or downstream water body.

AB547-ASA1,17,9 3. If the department receives the notice and information required under subd. 1. but is unable to determine based on that information whether the eligibility requirements are met, the department may, within 15 working days after the notification under subd. 1., notify the person one time to request additional information about the parcel of land. The person shall cooperate with the department's efforts to obtain information about the relevant parcel of land and may proceed with the project only upon notification that the department has determined the landscape feature to be eligible for the exemption based on the definitive evidence.

AB547-ASA1,17,13 4. If, within 15 working days after the notification is delivered to the department, the department notifies the person that subd. 2. a., b., or c. applies, the person may not proceed with the project unless authorized by, or otherwise exempted from, a wetland general or individual permit under this section.

AB547-ASA1,23 Section 23. 281.36 (6) (a) (intro.) of the statutes, as affected by 2017 Wisconsin Act 115, is amended to read:

AB547-ASA1,17,18 281.36 (6) (a) (intro.) The department shall promulgate rules to interpret and implement the provisions under subs. (4), (4n), (4r), and (5). In promulgating these rules, the department shall do all of the following:

AB547-ASA1,24 Section 24. 281.36 (9) (a) (intro.) of the statutes, as affected by 2017 Wisconsin Act 115, is amended to read:

AB547-ASA1,18,2 281.36 (9) (a) (intro.) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under sub. (4), (4n), or (4r) is appropriate, and for purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

AB547-ASA1,25 Section 25 . 281.36 (12m) of the statutes is created to read:

AB547-ASA1,18,11 281.36 (12m) Local regulation of nonfederal or artificial wetlands. A local government may not enact an ordinance or adopt a resolution regulating a matter regulated under sub. (3n) (d) 1. or (3r) (a) (intro.) or (am), with respect to a discharge exempt from permitting requirements under sub. (4n) (c), or a matter regulated under sub. (4n). If a local government has in effect on the effective date of this subsection .... [LRB inserts date], an ordinance or resolution regulating nonfederal wetlands or artificial wetlands, the ordinance or resolution does not apply and may not be enforced.

AB547-ASA1,26 Section 26 . 281.36 (13m) of the statutes is amended to read:

AB547-ASA1,18,21 281.36 (13m) Report to legislature. No later than January 31, 2003, and no later than January 31 of each subsequent odd-numbered year, the department shall submit to the legislature under s. 13.172 (2) a report that provides an analysis of the impact of the implementation of mitigation on wetland resources and on the issuance of permits or other approvals under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, 281.11 to 281.47 or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299. The department shall include in its report a discussion of proposals and projects under the wetland mitigation grant program under s. 281.37 and the property development grant program under s. 23.099.

AB547-ASA1,27 Section 27 . 281.37 of the statutes is created to read:

AB547-ASA1,18,23 281.37 Wetland mitigation grant program. (1) In this subsection:

AB547-ASA1,19,2 (a) “Department stewardship land” means an area of land that is acquired by the state in whole or in part with funding from the stewardship program and that is under the jurisdiction of the department and used for one of the purposes specified in s. 23.09 (2) (d).

AB547-ASA1,19,4 (b) “Mitigation program” means the wetland mitigation grant program established under sub. (2).

AB547-ASA1,19,7 (c) “Nonprofit organization" means an organization that is described in section 501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

AB547-ASA1,19,9 (d) “Stewardship program" means the stewardship program under s. 23.0915 or 23.0917.

AB547-ASA1,19,13 (2) The department shall establish a wetland mitigation grant program under which it awards grants to nonprofit organizations to conduct projects to create, restore, or enhance wetlands under the in lieu fee subprogram in s. 281.36 (3r) (e) on department stewardship land as provided in this subsection.

AB547-ASA1,19,20 (3) No later than 6 months after the effective date of this subsection .... [LRB inserts date], the department shall identify department stewardship land that is appropriate to include in the mitigation program. The department shall identify no less than 25 percent of department stewardship land for this purpose. The land identified shall include land in every watershed located on department stewardship land, except that if land in one watershed is not appropriate to include in the program, it is sufficient to include land in an adjacent watershed.

AB547-ASA1,20,2 (4) (a) No later than 3 months after completion of the land identification stage under sub. (3) or at the beginning of the following fiscal year, whichever is earlier, and no later than July 1 of each subsequent year, the department shall issue a request for proposals from nonprofit organizations for grants to conduct wetland mitigation projects on department stewardship land identified under sub. (3). The issuance of each new request for proposal begins a new grant cycle.

AB547-ASA1,20,4 (b) The department shall require applications for grants under this section to include all of the following:

AB547-ASA1,20,5 1. The scope of the proposed project.

AB547-ASA1,20,6 2. A project timeline.

AB547-ASA1,20,9 3. If possible, a specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the project area does not provide or only sparsely provides.

AB547-ASA1,20,11 4. A specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the proposed project would create, restore, or enhance.

AB547-ASA1,20,14 (c) The department shall accept grant applications on a rolling basis over the course of a fiscal year. The department shall select and announce grant recipients at the end of each quarter as funds are available.

AB547-ASA1,20,18 (5) (a) If an application under sub. (4) is approved, the grantee and the department, in consultation, shall identify all department permits required for the grantee to conduct the project. The department shall waive all permit fees for the grantee in relation to department permits required to conduct the project.

AB547-ASA1,20,23 (b) Notwithstanding timelines otherwise established for individual permits, within 60 days of receiving the grantee's application for an individual permit that is required to conduct the project, the department shall render a decision issuing, denying, or modifying the permit, and the department shall adjust all other deadlines relating to the review of the application accordingly.

AB547-ASA1,21,3 (7) (a) The department shall pay out a grant under the mitigation program in 3 phases, withholding the final payment until the grantee certifies that the project is complete.

AB547-ASA1,21,10 (b) If the grantee fails to certify that the project is complete by the date indicated for completion in its application, the department shall use the remaining unpaid grant amount to either complete the project or contract with or issue a grant to another nonprofit organization to complete the project. An organization that fails to certify completion of a project by the date indicated in its application for completion is not eligible for a new grant under the mitigation program for 2 grant cycles.

AB547-ASA1,21,14 (c) The department may agree to a modified deadline for the project if unusual or unforeseen circumstances cause a delay. If the department agrees to a modified deadline, the consequences under par. (b) apply only if the grantee fails to certify that a project is complete by the date indicated in that agreement.

AB547-ASA1,21,19 (8) Before 6 months have elapsed after the 5th anniversary of the department's first issuance of a request for proposals under sub. (4), the department shall submit to the legislature under s. 13.172 (2) a report analyzing the effectiveness of the first 5 years of the mitigation program and making recommendations for changes to the program.

AB547-ASA1,28 Section 28 . Nonstatutory provisions.

AB547-ASA1,22,2 (1) Federal review of mitigation projects. The department of natural resources may submit a request to the U.S. army corps of engineers that the U.S. army corps of engineers move up all deadlines relating to its review and approval of wetland mitigation project proposals under the in lieu fee subprogram under section 281.36 (3r) of the statutes so that the time it takes for the U.S. army corps of engineers to approve such a proposal is shortened.

AB547-ASA1,22,7 (2) Appointment of members of wetland study council. The governor shall appoint the members of the wetland study council under section 15.347 (22) (a) 1. to 8. of the statutes and the secretary of natural resources shall appoint the member of the wetland study council under section 15.347 (22) (a) 9. of the statutes no later than 6 months after the effective date of this subsection.

AB547-ASA1,22,11 (3) Initial terms for wetland study council members. Notwithstanding section 15.347 (22) of the statutes, of the members of the wetland study council who are appointed as initial members, 3 members shall serve for a 2-year term and 3 members shall serve for a 4-year term.

AB547-ASA1,29 Section 29 . Initial applicability.

AB547-ASA1,22,13 (1) Nonfederal wetland delineations.

AB547-ASA1,22,19 (a) Except as provided in paragraph (b), the renumbering and amendment of section 23.321 (1) and (5) of the statutes and the creation of section 23.321 (1) (am) and (5) (b) of the statutes first apply to a wetland identification provided by the department of natural resources under section 23.321 (2) (b) of the statutes and a wetland confirmation provided by the department of natural resources under section 23.321 (2) (c) of the statutes for a nonfederal wetland on January 1, 2003.