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
b. Aerial photographs.
c. Surveys that use a scale of not more than 100 feet per inch.
d. Wetland delineations.
3. “Rare and high quality wetland” means a wetland that is directly adjacent 16
or contiguous to a class I or class II trout stream or that consists of 75 percent or more 17
of any of the following wetland types:
a. Alder thicket.
b. Calcareous fen.
c. Coniferous swamp.
d. Coniferous bog.
e. Floodplain forest.
f. Hardwood swamp.
g. Interdunal wetland.
i. Ridge and swail complex.
j. Deep marsh.
k. Sedge meadow.
4. “Sewerage system” has the meaning given in s. 281.01 (14).
5. “Urban area” means any of the following:
a. An incorporated area.
b. An area within one-half mile of an incorporated area.
c. An area in a town that is served by a sewerage system.
(b) Subject to par. (e), the permitting requirement under sub. (3b) does not 10
apply to any discharge into a nonfederal wetland that occurs in an urban area and 11
to which all of the following apply:
1. The discharge does not affect more than one acre of wetland per parcel.
2. The discharge does not affect a rare and high quality wetland.
3. The development related to the discharge is carried out in compliance with 15
any applicable storm water management zoning ordinance enacted under s. 59.693, 16
60.627, 61.354, or 62.234 or storm water discharge permit issued under s. 283.33.
(c) Subject to par. (e), the permitting requirement under sub. (3b) does not apply 18
to any discharge into a nonfederal wetland that occurs outside an urban area and to 19
which all of the following apply:
1. The discharge does not affect more than 3 acres of wetland per parcel.
2. The discharge does not affect a rare and high quality wetland.
3. The development related to the discharge is a structure, such as a building, 23
driveway, or road, with an agricultural purpose.
(d) Subject to par. (e), the permitting requirement under sub. (3b) does not 25
apply to any discharge into an artificial wetland.
(e) 1. A person who proposes a project that may affect a wetland or landscape 2
feature under par. (b), (c), or (d) shall notify the department no fewer than 15 working 3
days before initiating the project. The notice shall include one of the following to 4
show that the wetland or landscape feature is eligible for the relevant exemption:
a. A statement issued by a professional who has investigated the wetland and 6
who is qualified to give such an opinion.
b. A wetland delineation prepared by a qualified professional showing the exact 8
location and boundaries of the wetland.
2. Except as provided in subd. 3., if the department receives the notice and 10
information required under subd. 1., the department shall presume that the wetland 11
or landscape feature is eligible for the exemption unless the department, within 15 12
working days after receiving notification of the proposed project under subd. 1., 13
notifies the person that one of the following conditions applies:
a. The eligibility requirements are not met.
b. The location and boundaries of the wetland identified in a wetland 16
delineation included with the notification under subd. 1. are not accurate.
c. With respect to an exemption under par. (d) only, the department determines 18
that the landscape feature is providing significant functions that either protect 19
adjacent or downstream property or infrastructure from flooding or significantly 20
improve the water quality of an adjacent or downstream water body.
3. If the department receives the notice and information required under subd. 22
1. but is unable to determine based on that information whether the eligibility 23
requirements are met, the department may, within 15 working days after the 24
notification under subd. 1., notify the person one time to request additional 25
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 2
proceed with the project only upon notification that the department has determined 3
the landscape feature to be eligible for the exemption based on the definitive 4
4. If, within 15 working days after the notification is delivered to the 6
department, the department notifies the person that subd. 2. a., b., or c. applies, the 7
person may not proceed with the project unless authorized by, or otherwise exempted 8
from, a wetland general or individual permit under this section.
(a) (intro.) The department shall promulgate rules to interpret and 12
implement the provisions under subs. (4), (4n),
(4r), and (5). In promulgating these 13
rules, the department shall do all of the following:
(a) (intro.) For purposes of determining whether to issue a wetland 17
individual permit, whether authorization to proceed as authorized under a wetland 18
general permit is appropriate, or whether an exemption under sub. (4), (4n),
or (4r) 19
is appropriate, and for purposes of enforcing this section, any employee or other 20
representative of the department, upon presenting his or her credentials, may do any 21
of the following:
281.36 (12m) of the statutes is created to read:
281.36 (12m) Local regulation of nonfederal or artificial wetlands.
A local 24
government may not enact an ordinance or adopt a resolution regulating a matter 25
regulated under sub. (3n) (d) 1. or (3r) (a) (intro.) or (am), with respect to a discharge
exempt from permitting requirements under sub. (4n) (b) or (c), or a matter regulated 2
under sub. (4n). If a local government has in effect on the effective date of this 3
subsection .... [LRB inserts date], an ordinance or resolution regulating nonfederal 4
wetlands or artificial wetlands, the ordinance or resolution does not apply and may 5
not be enforced.
281.36 (13m) of the statutes is amended to read:
281.36 (13m) Report to legislature.
No later than January 31, 2003, and no 8
later than January 31 of each subsequent odd-numbered year, the department shall 9
submit to the legislature under s. 13.172 (2) a report that provides an analysis of the 10
impact of the implementation of mitigation on wetland resources and on the issuance 11
of permits or other approvals under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, 12
281.11 to 281.47 or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299. 13The department shall include in its report a discussion of proposals and projects
14under the property development grant program under s. 23.099.
281.37 of the statutes is created to read:
16281.37 Wetland mitigation grant program. (1)
In this subsection:
(a) “Department land” means land owned by or under easement to the state 18
that is under the jurisdiction of the department and used for one of the purposes 19
specified in s. 23.09 (2) (d).
(b) “Mitigation program” means the wetland mitigation grant program 21
established under sub. (2).
(c) “Nonprofit organization" means an organization that is described in section 23501
(c) (3) of the Internal Revenue Code and that is exempt from federal income tax 24
under section 501
(a) of the Internal Revenue Code.
The department shall establish a wetland mitigation grant program under 2
which it awards grants to nonprofit organizations to conduct projects to create, 3
restore, or enhance wetlands under the in lieu fee subprogram in s. 281.36 (3r) (e) 4
on department land as provided in this subsection.
No later than 6 months after the effective date of this subsection .... [LRB 6
inserts date], the department shall identify department land that is appropriate to 7
include in the mitigation program. The department shall identify no less than 25 8
percent of department land for this purpose. The land identified shall include land 9
in every watershed in the state.
(a) No later than 3 months after completion of the land identification stage 11
under sub. (3) or at the beginning of the following fiscal year, whichever is earlier, 12
and no later than July 1 of each subsequent year, the department shall issue a 13
request for proposals from nonprofit organizations for grants to conduct wetland 14
mitigation projects on department land identified under sub. (3). The issuance of 15
each new request for proposal begins a new grant cycle.
(b) The department shall require applications for grants under this section to 17
include all of the following:
1. The scope of the proposed project.
2. A project timeline.
3. If possible, a specification of the functional values or uses listed in s. NR 21
103.03 (1), Wis. Adm. Code, that the project area does not provide or only sparsely 22
4. A specification of the functional values or uses listed in s. NR 103.03 (1), Wis. 24
Adm. Code, that the proposed project would create, restore, or enhance.
5. All information required to be submitted for approval to the U.S. army corps 2
of engineers under 33 CFR part 332
and the Wisconsin Wetland Conservation Trust 3
(c) After issuing the request for proposals under par. (a), the department shall 5
accept grant applications on a rolling basis over the course of a fiscal year. The 6
department shall select and announce grant recipients under this subsection at the 7
end of each quarter as funds are available.
(a) If an application under sub. (4) is approved, the grantee and the 9
department, in consultation, shall identify all department permits required for the 10
grantee to conduct the project. The department shall waive all permit fees for the 11
grantee in relation to department permits required to conduct the project.
(b) Notwithstanding timelines otherwise established for individual permits, 13
within 60 days of receiving the grantee's application for an individual permit that is 14
required to conduct the project, the department shall render a decision issuing, 15
denying, or modifying the permit, and the department shall adjust all other 16
deadlines relating to the review of the application accordingly.
(a) The department shall pay out a grant under the mitigation program 18
quarterly unless the department determines that more frequent payments are 19
necessary to fulfill the objectives of the grant program. The department shall 20
withhold the final payment until the grantee certifies that the project is complete.