Amendment SSA1-SB600

LRBs0294/1

EHS:wlj&kjf

2017 - 2018 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 600

February 7, 2018 - Offered by Senators Roth and Cowles.

SB600-SSA1,1,8 An 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 (4) (a) 3., 281.36 (3b) (b), 281.36 (3m) (a), 281.36 (3n) (d) 1., 281.36 (3r) (a) (intro.), 281.36 (4) (title), 281.36 (6) (a) (intro.), 281.36 (9) (a) (intro.) and 281.36 (13m); and to create 15.347 (22), 23.099, 23.321 (1) (am), 23.321 (2) (d), 23.321 (4) (a) 4., 23.321 (5) (b), 281.12 (2), 281.36 (3r) (am), 281.36 (4n), 281.36 (12m) and 281.37 of the statutes; relating to: the regulation and study of wetlands; grants 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 that authority.

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 mitigation.

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 feet.

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 state.

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 features.

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 changes.

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:

SB600-SSA1,1 Section 1. 15.347 (22) of the statutes is created to read:

SB600-SSA1,5,4 15.347 (22) Wetland study council. (a) There is created in the department of natural resources a wetland study council consisting of the following members, appointed for staggered 6-year terms:

SB600-SSA1,6,2 1. One member who is a representative of a statewide organization representing the business community.

SB600-SSA1,6,4 2. One member who is a representative of a statewide organization representing waterfowl interests.

SB600-SSA1,6,6 3. One member who is a representative of a statewide organization representing real estate and development interests.

SB600-SSA1,6,8 4. One member who is a representative of a statewide organization representing municipal interests.

SB600-SSA1,6,10 5. One member who is a representative of a statewide organization representing rural and agricultural interests.

SB600-SSA1,6,12 6. One member who is a representative of a statewide organization representing a land conservation group with a specific interest in wetlands.

SB600-SSA1,6,13 7. One member who is a statewide wetland delineator.

SB600-SSA1,6,14 8. One member who is a statewide wetland consultant.

SB600-SSA1,6,17 9. One member who is a department of natural resources biologist or hydrologist and who is a wetland expert, appointed by the secretary of natural resources.

SB600-SSA1,6,19 (b) The wetland study council shall research and develop recommendations on all of the following:

SB600-SSA1,6,21 1. The implementation and effectiveness of statewide wetland mitigation programs.

SB600-SSA1,7,2 2. Program elements that would be necessary for the department of natural resources to implement if the department assumes from the federal government the 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 s. 281.12 (2).

SB600-SSA1,7,6 3. Issues related to the analysis of practicable alternatives that avoid and minimize the adverse impacts of a discharge into a wetland on wetland functional values and that will not result in any other significant adverse environmental consequences.

SB600-SSA1,7,8 4. Storm water management ponds and their potential to serve a role in wetland mitigation.

SB600-SSA1,7,10 5. Statewide incentive programs for creating, restoring, and enhancing wetlands.

SB600-SSA1,7,12 6. Statewide wetland trainings for department of natural resources staff, wetland consultants, and wetland delineators.

SB600-SSA1,7,14 7. The simplification of regulations associated with creating wetlands on farm drainage ditches for the purpose of phosphorus pollution retention.

SB600-SSA1,7,17 8. Ways to improve the in lieu fee subprogram of the wetland mitigation program, under s. 281.36 (3r) (e), including subcontracting the management of a program to a nonprofit organization.

SB600-SSA1,7,21 9. The possibility of a professional, whose wetland delineation work is assured under the department of natural resources' wetland delineation professional assurance initiative, performing a wetland delineation confirmation under s. 23.321 on behalf of the department.

SB600-SSA1,7,23 10. Methods of financing wetland mitigation requirements for local units of government.

SB600-SSA1,7,24 11. Any other item related to wetlands at the discretion of the council.

SB600-SSA1,2 Section 2. 20.370 (9) (bm) of the statutes, as affected by 2017 Wisconsin Act 59, is amended to read:

SB600-SSA1,8,9 20.370 (9) (bm) Wetland restoration — fees; payments. From the general fund, all moneys received as surcharge fees under s. 281.36 (11), all moneys received as transfers to the in lieu fee subprogram as provided in s. 281.36 (3s) (h), 2015 stats., and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for the restoration or creation of wetlands, for the wetland mitigation grant program under s. 281.37, and for any other activities authorized under the in lieu fee subprogram.

SB600-SSA1,3 Section 3 . 23.0917 (4) (c) 3. of the statutes is amended to read:

SB600-SSA1,8,11 23.0917 (4) (c) 3. Grants under s. ss. 23.098 and 23.099.

SB600-SSA1,4 Section 4 . 23.099 of the statutes is created to read:

SB600-SSA1,8,14 23.099 Grants for property development relating to wetland mitigation. (1) In this section:

SB600-SSA1,8,15 (a) “Department land” has the meaning given under s. 281.37 (1) (a).

SB600-SSA1,8,18 (b) “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.

SB600-SSA1,9,2 (2) The department shall establish a program to make grants from the appropriation under s. 20.866 (2) (ta) to nonprofit organizations for property development activities relating to wetlands created, restored, or enhanced under a wetland mitigation grant under s. 281.37 on department land. Property development activities for which a grant under this section may be awarded include 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, restored, or enhanced wetland.

SB600-SSA1,9,7 (3) A nonprofit organization that applies for a grant under this section shall submit the application at the same time that it submits an application for a grant under s. 281.37. The department shall make its determination with respect to both grants at the same time, and may only award a grant under this section if it also awards a grant under s. 281.37.

SB600-SSA1,9,11 (4) A grant awarded under this section may not exceed 10 percent of the amount of the related grant awarded under s. 281.37. The department may not issue the grant funding under this section to the grantee until the grantee has certified that the project funded by the grant under s. 281.37 is complete.

SB600-SSA1,5 Section 5 . 23.321 (1) of the statutes is renumbered 23.321 (1) (intro.) and amended to read:

SB600-SSA1,9,14 23.321 (1) Definition. (intro.) In this section, “wetland":

SB600-SSA1,9,15 (b) “Wetland” has the meaning given in s. 23.32 (1).

SB600-SSA1,6 Section 6 . 23.321 (1) (am) of the statutes is created to read:

SB600-SSA1,9,18 23.321 (1) (am) “Nonfederal wetland” has the meaning given in s. 281.36 (1) (br).

SB600-SSA1,7 Section 7 . 23.321 (2) (d) of the statutes is created to read:

SB600-SSA1,9,22 23.321 (2) (d) 1. In this paragraph, “qualified 3rd person” means an individual who has completed basic and advanced wetland training and has a minimum of one year of field experience in wetland delineation.

SB600-SSA1,9,25 2. A wetland confirmation that consists of a written statement, based upon the department's review of the boundaries of a wetland as delineated by a qualified 3rd 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 the qualified 3rd person shall include the exact location and boundaries of the wetland. The department shall concur with the boundaries of a wetland delineated by a qualified 3rd person unless the department determines that the location and boundaries of the wetland identified in the delineation are not accurate based on maps, aerial photographs, surveys, wetland delineations, or hydrophitic soil conditions. If the department concurs with the boundaries of a wetland delineated by a qualified 3rd person, the department's statement under this paragraph shall also include the exact location and boundaries of the wetland. A wetland confirmation under this paragraph is available only with respect to a nonfederal wetland.

SB600-SSA1,8 Section 8 . 23.321 (4) (a) 3. of the statutes is amended to read:

SB600-SSA1,10,15 23.321 (4) (a) 3. Provide a wetland confirmation not later than 60 days after a person files a request, in the manner and form required by the department, for a wetland confirmation under sub. (2) (c).

SB600-SSA1,9 Section 9 . 23.321 (4) (a) 4. of the statutes is created to read:

SB600-SSA1,10,19 23.321 (4) (a) 4. Provide a wetland confirmation not later than 15 days after a person files a request, in the manner and form required by the department, for a wetland confirmation under sub. (2) (d).

SB600-SSA1,10 Section 10 . 23.321 (5) of the statutes is renumbered 23.321 (5) (a) and amended to read:

SB600-SSA1,10,25 23.321 (5) (a) A Except as provided in par. (b), a wetland identification provided by the department under sub. (2) (b) and a wetland confirmation provided by the department under sub. (2) (c) remain effective for 5 years from the date provided by the department.

SB600-SSA1,11 Section 11. 23.321 (5) (b) of the statutes is created to read: