State administration of wetland permit program. Under current federal
law, a state's governor may apply to the EPA requesting that the state be delegated
the authority to administer its own individual and general permit program for the
discharge of dredged or fill material into navigable waters, including federal
wetlands, in place of the federal regulatory program. The substitute amendment
authorizes DNR to submit such an application on behalf of and at the direction of the
governor and authorizes DNR to assume that authority if the EPA delegates it to the
Wetland mitigation grant program. Under the authority of current law,
with the approval of the U.S. Army Corps of Engineers (ACE), DNR has created the
in lieu fee subprogram as one method by which wetland mitigation may be
accomplished. Under this subprogram, payments are made to DNR or another entity
for the purposes of improving or preserving wetlands or other water resource
This substitute amendment requires DNR to establish a wetland mitigation
grant program (mitigation program) using moneys received under the in lieu fee
subprogram and from surcharge fees charged for each application to proceed under
a wetland general permit. Under the mitigation program, nonprofit organizations
may apply to DNR on a rolling basis for grants to conduct projects to create, restore,
or enhance wetlands on DNR land.
The substitute amendment requires DNR to identify land under its jurisdiction
that is appropriate to include in the mitigation program. The substitute amendment
requires DNR to include in the mitigation program no less than 25 percent of all DNR
land and to include land in every watershed in the state.
The substitute amendment requires DNR to issue a request for proposals
within three months after identifying appropriate lands or at the beginning of the
next fiscal year, whichever is earlier, and no later than July 1 of each subsequent
year. Under the substitute amendment, DNR must select and announce grant
recipients at the end of each quarter, as funds are available.
The substitute amendment imposes requirements for what a wetland
mitigation grant application must include, such as specifications of the wetland
functional values that the project area does not provide or only sparsely provides and
those that the proposed project would restore, enhance, or create. If an application
is approved, the substitute amendment requires DNR and the grantee to identify all
DNR permits that are required in order for the grantee to conduct the project,
requires DNR to waive all permit fees for those permits, and limits the timelines for
approval of those permits.
The substitute amendment also authorizes DNR to submit a request to ACE
that ACE move up all deadlines relating to its review and approval of wetland
mitigation project proposals under the in lieu fee subprogram and that ACE approve
a modification to the subprogram in order to implement the mitigation program.
The substitute amendment requires DNR to pay out a wetland mitigation grant
quarterly, or more frequently if necessary, withholding the final payment until the
grantee certifies that the project is complete. If the grantee fails to certify that the
project is complete by the date indicated for completion in its application, the
substitute amendment requires DNR to 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, unless DNR agrees to modify the deadline
because of unusual or unforeseen circumstances. Under the substitute amendment,
an organization that fails to certify completion of a project by the date indicated in
its application for completion, or another date agreed to by DNR, is not eligible for
a new grant for two grant cycles.
The substitute amendment requires DNR to report to the legislature on the
effectiveness of the mitigation program's first five years and any recommended
Property development grants. The substitute amendment also requires
DNR to establish a separate grant program under which it makes grants to nonprofit
organizations for certain property development activities relating to wetlands
affected by a project under a wetland mitigation grant. Property development
activities that may be funded under this grant program include those that increase
public access to, awareness about, or recreational use of the affected wetland, or that
improve habitat in, on, or near the affected wetland. Under the substitute
amendment, the property development grant program is funded from the property
development and local assistance subprogram of the Warren Knowles-Gaylord
Nelson stewardship 2000 program.
The substitute amendment requires an application for a property development
grant, though it is separate from the wetland mitigation grant program, to be
submitted at the same time as an application for a wetland mitigation grant, requires
DNR to make a determination on both grants at the same time, and prohibits DNR
from awarding a property development grant unless it also awards a wetland
mitigation grant. The substitute amendment also restricts a property development
grant to no more than 10 percent of the amount of the wetland mitigation grant and
provides that a property development grant may not be paid until the grantee
certifies that the project funded by the wetland mitigation grant is complete.
Wetland study council. The substitute amendment creates within DNR a
wetland study council, consisting of nine members, appointed for staggered six-year
terms by the governor and the secretary of natural resources, representing various
interests and expertises, to research and provide recommendations on various issues
relating to wetlands.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
15.347 (22) of the statutes is created to read:
15.347 (22) Wetland study council.
(a) There is created in the department 3
of natural resources a wetland study council consisting of the following members, 4
appointed for staggered 6-year terms:
1. One member who is a representative of a statewide organization 2
representing the business community.
2. One member who is a representative of a statewide organization 4
representing waterfowl interests.
3. One member who is a representative of a statewide organization 6
representing real estate and development interests.
4. One member who is a representative of a statewide organization 8
representing municipal interests.
5. One member who is a representative of a statewide organization 10
representing rural and agricultural interests.
6. One member who is a representative of a statewide organization 12
representing a land conservation group with a specific interest in wetlands.
7. One member who is a statewide wetland delineator.
8. One member who is a statewide wetland consultant.
9. One member who is a department of natural resources biologist or 16
hydrologist and who is a wetland expert, appointed by the secretary of natural 17
The wetland study council shall research and develop recommendations on 19
all of the following:
1. The implementation and effectiveness of statewide wetland mitigation 21
2. Program elements that would be necessary for the department of natural 23
resources to implement if the department assumes from the federal government the 24
authority to administer the state's own individual and general permit program for
the discharge of dredged or fill material into the navigable waters of the state under 2
s. 281.12 (2).
3. Issues related to the analysis of practicable alternatives that avoid and 4
minimize the adverse impacts of a discharge into a wetland on wetland functional 5
values and that will not result in any other significant adverse environmental 6
4. Storm water management ponds and their potential to serve a role in 8
5. Statewide incentive programs for creating, restoring, and enhancing 10
6. Statewide wetland trainings for department of natural resources staff, 12
wetland consultants, and wetland delineators.
7. The simplification of regulations associated with creating wetlands on farm 14
drainage ditches for the purpose of phosphorus pollution retention.
8. Ways to improve the in lieu fee subprogram of the wetland mitigation 16
program, under s. 281.36 (3r) (e), including subcontracting the management of a 17
program to a nonprofit organization.
9. The possibility of a professional, whose wetland delineation work is assured 19
under the department of natural resources' wetland delineation professional 20
assurance initiative, performing a wetland delineation confirmation under s. 23.321 21
on behalf of the department.
10. Methods of financing wetland mitigation requirements for local units of 23
11. Any other item related to wetlands at the discretion of the council.
(bm) Wetland restoration — fees; payments.
From the general fund, 4
all moneys received as surcharge fees under s. 281.36 (11), all moneys received as 5
transfers to the in lieu fee subprogram as provided in s. 281.36 (3s) (h), 2015 stats., 6
and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for 7
the restoration or creation of wetlands, for the wetland mitigation grant program
8under s. 281.37,
and for any other activities authorized under the in lieu fee 9
23.0917 (4) (c) 3. of the statutes is amended to read:
(c) 3. Grants under s.
23.098 and 23.099
23.099 of the statutes is created to read:
1323.099 Grants for property development relating to wetland
In this section:
“Department land” has the meaning given under s. 281.37 (1) (a).
(b) “Nonprofit organization" means an organization that is described in section 17501
(c) (3) of the Internal Revenue Code and that is exempt from federal income tax 18
under section 501
(a) of the Internal Revenue Code.
The department shall establish a program to make grants from the 20
appropriation under s. 20.866 (2) (ta) to nonprofit organizations for property 21
development activities relating to wetlands created, restored, or enhanced under a 22
wetland mitigation grant under s. 281.37 on department land. Property 23
development activities for which a grant under this section may be awarded include 24
those that increase public access to, awareness about, or recreational use of the new,
restored, or enhanced wetland, or that improve habitat in, on, or near, the new, 2
restored, or enhanced wetland.
A nonprofit organization that applies for a grant under this section shall 4
submit the application at the same time that it submits an application for a grant 5
under s. 281.37. The department shall make its determination with respect to both 6
grants at the same time, and may only award a grant under this section if it also 7
awards a grant under s. 281.37.
A grant awarded under this section may not exceed 10 percent of the 9
amount of the related grant awarded under s. 281.37. The department may not issue 10
the grant funding under this section to the grantee until the grantee has certified 11
that the project funded by the grant under s. 281.37 is complete.
23.321 (1) of the statutes is renumbered 23.321 (1) (intro.) and 13
amended to read:
23.321 (1) Definition.
(intro.) In this section, “wetland":
has the meaning given in s. 23.32 (1).
23.321 (1) (am) of the statutes is created to read:
(am) “Nonfederal wetland” has the meaning given in s. 281.36 (1) 18
23.321 (2) (d) of the statutes is created to read:
(d) 1. In this paragraph, “qualified 3rd person” means an individual 21
who has completed basic and advanced wetland training and has a minimum of one 22
year of field experience in wetland delineation.
2. A wetland confirmation that consists of a written statement, based upon the 24
department's review of the boundaries of a wetland as delineated by a qualified 3rd 25
person and not based upon an on-site inspection of the land by the department, of
whether the department concurs with the delineation. The delineation prepared by 2
the qualified 3rd person shall include the exact location and boundaries of the 3
wetland. The department shall concur with the boundaries of a wetland delineated 4
by a qualified 3rd person unless the department determines that the location and 5
boundaries of the wetland identified in the delineation are not accurate based on 6
maps, aerial photographs, surveys, wetland delineations, or hydrophitic soil 7
conditions. If the department concurs with the boundaries of a wetland delineated 8
by a qualified 3rd person, the department's statement under this paragraph shall 9
also include the exact location and boundaries of the wetland. A wetland 10
confirmation under this paragraph is available only with respect to a nonfederal 11
23.321 (4) (a) 3. of the statutes is amended to read:
(a) 3. Provide a wetland confirmation not later than 60 days after 14
a person files a request, in the manner and form required by the department, for a 15
wetland confirmation under sub. (2) (c)
23.321 (4) (a) 4. of the statutes is created to read:
(a) 4. Provide a wetland confirmation not later than 15 days after 18
a person files a request, in the manner and form required by the department, for a 19
wetland confirmation under sub. (2) (d).
23.321 (5) of the statutes is renumbered 23.321 (5) (a) and 21
amended to read:
(a) A Except as provided in par. (b), a
wetland identification 23
provided by the department under sub. (2) (b) and a wetland confirmation provided 24
by the department under sub. (2) (c) remain effective for 5 years from the date 25
provided by the department.
23.321 (5) (b) of the statutes is created to read:
(b) 1. A wetland identification provided by the department under 3
sub. (2) (b) and a wetland confirmation provided by the department under sub. (2) 4
(c) or (d) remain effective for 15 years from the date provided by the department if 5
all of the following conditions are met:
a. The wetland is a nonfederal wetland.
b. The parcel of land is subject to a storm water management zoning ordinance 8
enacted under s. 59.693, 60.627, 61.354, or 62.234 or a storm water discharge permit 9
issued under s. 283.33.
2. The department may not invalidate or amend an existing wetland 11
delineation, or require a new wetland delineation, for a parcel to which subd. 1. 12
applies until the wetland identification or confirmation expires.
281.12 (2) of the statutes is created to read:
The department, on behalf of and at the direction of the governor, 15
may submit an application to the federal environmental protection agency under 33
(g) seeking the delegation of authority to this state to administer its own 17
individual and general permit program for the discharge of dredged or fill material 18
into the navigable waters of this state. If the federal environmental protection 19
agency delegates this authority to this state, the department may assume that 20
(b) No person may discharge dredged material or fill material into 24
a wetland unless the discharge is authorized by a wetland general permit or 25
individual permit issued by the department under this section or the discharge is
exempt under sub. (4), (4m) (a), (4n)
, or (4r). No person may violate any condition 2
contained in a wetland general or individual permit issued by the department under 3
this section. The department may not issue a wetland general or individual permit 4
under this section unless it determines that the discharge authorized pursuant to the 5
wetland general or individual permit will comply with all applicable water quality 6
(a) When permit required.
Any person wishing to proceed with a 10
discharge into any wetland shall submit an application for a wetland individual 11
permit under this subsection unless the discharge has been authorized under a 12
wetland general permit as provided in sub. (3g) or is exempt under sub. (4), (4m) (a),
, or (4r). Before submitting the application, the department shall hold a meeting 14
with the applicant to discuss the details of the proposed discharge and the 15
requirements for submitting the application and for delineating the wetland. An 16
applicant may include in the application a request for a public informational hearing. 17
The application shall be accompanied by the applicable fee specified in sub. (11) or 18
(d) 1. Except as provided in subd. 2., the department shall require 22
mitigation under the program established under sub. (3r) for wetland individual 23
permits it issues under this subsection and for a discharge that is exempt from
24permitting requirements under sub. (4n) (b) that affects more than 10,000 square
25feet of wetland or under sub. (4n) (c) that affects more than 1.5 acres of wetland
subsection does not entitle an applicant to a wetland individual permit or any other 2
approval in exchange for conducting mitigation.
281.36 (3r) (a) (intro.) of the statutes is amended to read:
(a) (intro.) The department shall establish a mitigation program 5
that applies only to the issuance of wetland individual permits
and that allows and,
6with respect to a discharge that is exempt from permitting requirements under sub.
7(4n) (b) that affects more than 10,000 square feet of wetland or under sub. (4n) (c) that
8affects more than 1.5 acres of wetland, the portion of the affected wetland that
9exceeds 10,000 square feet or 1.5 acres, respectively. Under the mitigation program,
10subject to par. (am), the department shall allow
mitigation to be accomplished by any 11
of the following methods:
281.36 (3r) (a) 4. of the statutes is repealed.
281.36 (3r) (am) of the statutes is created to read:
(am) For a discharge that is exempt from permitting requirements 15
under sub. (4n) (b) or (c), any off-site mitigation, including any mitigation conducted 16
by a mitigation bank or under the in lieu fee subprogram, shall be completed within 17
the same compensation search area, as defined by the department by rule, as the 18
281.36 (3s) of the statutes is repealed.
281.36 (4) (title) of the statutes is amended to read:
; certain activities.
281.36 (4n) of the statutes is created to read:
281.36 (4n) Exemptions; certain nonfederal wetlands and artificial
(a) In this subsection:
1. “Artificial wetland" means a landscape feature where hydrophitic vegetation 2
may be present as a result of human modification to the landscape or hydrology and 3
for which the department has no definitive evidence showing a prior wetland or 4
stream history that existed before August 1, 1991, but does not include any of the 5
a. A wetland that serves as a fish spawning area or a passage to a fish spawning 7
b. A wetland created as a result of a mitigation requirement under sub. (3r).
2. “Definitive evidence” means documentary evidence such as any of the 10