2017 - 2018 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 3,
TO ASSEMBLY BILL 547
February 9, 2018 - Offered by Representative Steineke.
1An Act to repeal
281.36 (3r) (a) 4. and 281.36 (3s); to renumber and amend
23.321 (1) and 23.321 (5); to amend
20.370 (9) (bm), 23.0917 (4) (c) 3., 23.321 3
(4) (a) 3., 281.36 (3b) (b), 281.36 (3m) (a), 281.36 (3n) (d) 1., 281.36 (3r) (a) 4
(intro.), 281.36 (4) (title), 281.36 (6) (a) (intro.), 281.36 (9) (a) (intro.) and 281.36 5
(13m); and to create
15.347 (22), 23.099, 23.321 (1) (am), 23.321 (2) (d), 23.321 6
(4) (a) 4., 23.321 (5) (b), 281.12 (2), 281.36 (3r) (am), 281.36 (4n), 281.36 (12m) 7
and 281.37 of the statutes; relating to: the regulation and study of wetlands;
8grants for wetland projects; and making an appropriation.
This substitute amendment exempts artificial wetlands and certain nonfederal
wetlands from Department of Natural Resources wetland permitting requirements;
changes some requirements relating to wetland boundary delineations; creates
wetland-related grant programs; and, if the Environmental Protection Agency
delegates to the state the authority to administer its own permit program for the
discharge of dredge or fill material into navigable waters, authorizes DNR to assume
Nonfederal wetlands. Under current federal law, generally, a person must
obtain a permit from the federal government for a discharge into a wetland that is
under the jurisdiction of the federal government. Generally speaking, only wetlands
that are adjacent to navigable waters are subject to federal jurisdiction. Federal law
requires an applicant to submit with a permit application a certification from the
state that the proposed discharge will comply with state water quality standards or
that the state has waived such certification. In this state, DNR grants this
certification by issuing a state wetland permit. Under current law, DNR must issue
wetland general permits for discharges of dredged or fill material into certain
wetlands and may 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 occur. Under current
law, before DNR may issue a wetland individual permit, it must require the
restoration, enhancement, creation, or preservation of other wetlands to compensate
for adverse impacts to a wetland resulting from the discharge, also known as
This substitute amendment exempts from wetland permitting requirements a
discharge into a wetland that is not subject to federal jurisdiction (nonfederal
wetland) that occurs in an urban area if it does not affect more than one acre of
wetland per parcel, it does not affect a rare and high quality wetland, and if the
development related to the discharge is carried out in compliance with any applicable
storm water management zoning ordinance or storm water discharge permit. Under
the substitute amendment, an urban area is an incorporated area, an area within
one-half mile of an incorporated area, or an area that is served by a sewerage system.
The substitute amendment defines a “rare and high quality wetland” as one that is
directly adjacent or contiguous to a class I or class II trout stream or that consists of
at least 75 percent of certain rare wetland types. If the discharge into such a wetland
affects more than 10,000 square feet, the substitute amendment requires the
mitigation of impacts from the discharge to the portion that exceeds 10,000 square
The substitute amendment also exempts from wetland permitting
requirements a discharge into a nonfederal wetland that occurs outside an urban
area if it does not affect more than three acres of wetland per parcel, it does not affect
a rare and high quality wetland, and if the development related to the discharge is
a structure with an agricultural purpose. If the discharge into such a wetland affects
more than 1.5 acres, the substitute amendment requires the mitigation of impacts
from the discharge to the portion that exceeds 1.5 acres.
For any discharge to one of these wetlands that is exempt from permitting
requirements under the substitute amendment but that requires mitigation, the
substitute amendment requires the mitigation to be conducted in the same
compensation search area as the discharge. Under current DNR administrative
rule, a compensation search area is an area that includes the statewide management
unit of the impacted wetland, the county of the impacted wetland, and a circle with
a 20-mile radius from the impacted wetland. DNR has defined 22 statewide
management units based on the major river basins of the state.
Under current law, upon request and for a fee, DNR may provide to a landowner
or tenant either a wetland identification that consists of a written evaluation, based
upon an on-site inspection of the land by DNR, of whether a parcel of land contains
a wetland, or a wetland confirmation that consists of a written statement, based
upon an on-site inspection of the land by DNR, of whether DNR concurs with the
boundaries of a wetland as delineated by a third person. Under current law, DNR
must provide either service within 60 days of receiving a request, and a wetland
identification or confirmation remains effective for five years.
The substitute amendment adds another type of wetland confirmation that
consists of a written statement, based upon DNR's review of the boundaries of a
wetland as delineated by a qualified third person and not based upon an on-site
inspection of the land by DNR, of whether DNR concurs with the delineation and
requires DNR to provide this service within 15 days of receiving a request. Under
the substitute amendment, a “qualified third person” is an individual who has
completed basic and advanced wetland training and has a minimum of one year of
field experience in wetland delineation. The substitute amendment extends the
effectiveness of a wetland identification or confirmation to 15 years for a nonfederal
wetland if the parcel of land is subject to a storm water management zoning
ordinance or a storm water discharge permit, and prohibits DNR from requiring a
new delineation for such a parcel until the wetland identification or confirmation
expires. This extension to 15 years of validity applies first to a wetland identification
or confirmation provided on January 1, 2003.
Artificial wetlands. Under current rules promulgated by DNR, discharges
to certain artificial wetlands are exempt from the wetland permitting requirements
unless DNR determines that significant functional values are present. This
substitute amendment exempts from wetland permitting requirements a discharge
to any artificial wetland. The substitute amendment defines an artificial wetland
as a landscape feature where hydrophitic vegetation may be present as a result of
human modification to the landscape or hydrology and for which DNR has no
definitive evidence showing a prior wetland or stream history that existed before
August 1, 1991, but excludes from the definition a wetland that serves as a fish
spawning area or a passage to a fish spawning area or that was created as a result
of a wetland mitigation requirement.
With respect to the exemptions created for nonfederal wetlands and for
artificial wetlands, the substitute amendment establishes a process under which
DNR must be notified of any project that may affect a wetland or landscape feature
that is eligible for such an exemption and then must issue a determination of
whether the eligibility requirements are met or not.
The substitute amendment also prohibits local governments from regulating a
discharge into nonfederal wetlands and artificial wetlands exempt from permitting
requirements under this substitute amendment and from regulating mitigation
requirements for such a discharge.
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.