LRB-4115/1
EHS&ZDW:kjf&amn
2017 - 2018 LEGISLATURE
November 30, 2017 - Introduced by Senators Roth, Craig, Feyen, Kapenga, Lasee
and LeMahieu, cosponsored by Representatives Steineke, Stafsholt, Allen,
E. Brooks, R. Brooks, Felzkowski, Horlacher, Hutton, Jagler, Jarchow,
Knodl, Kremer, Kuglitsch, Rodriguez and Weatherston. Referred to
Committee on Natural Resources and Energy.
SB600,1,8 1An Act to repeal 281.36 (3r) (a) 4. and 281.36 (3s); to amend 20.370 (9) (bm),
2281.36 (3b) (b), 281.36 (3m) (a), 281.36 (3n) (d), 281.36 (3r) (a) (intro.), 281.36
3(3r) (e), 281.36 (4) (title), 281.36 (6) (a) (intro.) and 281.36 (9) (a) (intro.); and
4to create 281.12 (2), 281.36 (1) (ad), 281.36 (1) (e), 281.36 (3r) (f) and 281.36 (4n)
5of the statutes; relating to: permitting and mitigation requirements for
6nonfederal and artificial wetlands and state assumption of the federal
7regulatory program governing the discharge of dredged or fill material into
8navigable waters.
This bill exempts nonfederal and artificial wetlands from certain Department
of Natural Resources wetland permitting requirements 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.
Under current federal law, generally, a person must obtain a permit from the
federal government for discharges to wetlands that are under the jurisdiction of the
federal government. 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.
The bill exempts wetlands that are not subject to federal jurisdiction
(nonfederal wetlands) from state wetland permitting requirements. Generally
speaking, only wetlands that are adjacent to navigable waters are subject to federal
jurisdiction. The bill continues to require the mitigation of impacts from a discharge
to a nonfederal wetland, which under current law is required before DNR may issue
a wetland individual permit.
The bill also excludes artificial wetlands from the definition of a wetland,
thereby exempting these wetlands from the permitting and mitigation requirements
that apply to the discharge of dredged or fill material into a wetland. Under the bill,
an artificial wetland is a nonfederal wetland created by human modifications to the
landscape or hydrology and for which DNR has no definitive evidence showing a prior
wetland or stream history, but does not include a wetland created under a mitigation
requirement. Under current rules promulgated by DNR, only certain artificial
wetlands are exempt from the wetland permitting requirements and only if DNR
determines that significant functional values are not present.
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. This
bill 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.
The bill also requires DNR to expend all moneys received prior to the effective
date of this bill for the in lieu fee subprogram no later than June 30, 2019, and,
effective January 7, 2019, to expend moneys received for the in lieu fee subprogram
within 24 months of being credited the moneys. The bill provides that, no later than
the third month of each legislative session, DNR is required to provide a report to the
governor and the appropriate standing committees of the legislature explaining how
the department expended the moneys and, if necessary, why the department failed
to expend all of the moneys. Under current law, as part of the mitigation program,
DNR may establish an in lieu fee subprogram, under which payments are made to
DNR for the purposes of restoring, enhancing, creating, or preserving wetlands or
other water resource features.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB600,1
1Section 1. 20.370 (9) (bm) of the statutes, as affected by 2017 Wisconsin Act
259
, is amended to read:
SB600,3,83 20.370 (9) (bm) Wetland restoration — fees; payments. From the general fund,
4all moneys received as surcharge fees under s. 281.36 (11), all moneys received as
5transfers to the in lieu fee subprogram as provided in s. 281.36 (3s) (h), 2015 stats.,
6and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for
7the restoration or creation of wetlands and for any other activities authorized under
8the in lieu fee subprogram.
SB600,2 9Section 2. 281.12 (2) of the statutes is created to read:
SB600,3,1610 281.12 (2) The department, on behalf of and at the direction of the governor,
11may submit an application to the federal environmental protection agency under 33
12USC 1344
(g) seeking the delegation of authority to this state to administer its own
13individual and general permit program for the discharge of dredged or fill material
14into the navigable waters of this state. If the federal environmental protection
15agency delegates this authority to this state, the department may assume that
16authority.
SB600,3 17Section 3. 281.36 (1) (ad) of the statutes is created to read:
SB600,3,2218 281.36 (1) (ad) “Artificial wetland” means a wetland created by human
19modifications to the landscape or hydrology and for which the department has no
20definitive evidence showing a prior wetland or stream history. “Artificial wetland”
21does not include a wetland that is subject to federal jurisdiction under 33 USC 1344
22or a wetland created as a result of the mitigation program under sub. (3r).
SB600,4 23Section 4. 281.36 (1) (e) of the statutes is created to read:
SB600,3,2524 281.36 (1) (e) “Wetland” has the meaning given in s. 23.32 (1) but does not
25include an artificial wetland.
SB600,5
1Section 5. 281.36 (3b) (b) of the statutes, as affected by 2017 Wisconsin Act 58,
2is amended to read:
SB600,4,113 281.36 (3b) (b) No person may discharge dredged material or fill material into
4a wetland unless the discharge is authorized by a wetland general permit or
5individual permit issued by the department under this section or the discharge is
6exempt under sub. (4) or, (4m) (a) , or (4n). No person may violate any condition
7contained in a wetland general or individual permit issued by the department under
8this section. The department may not issue a wetland general or individual permit
9under this section unless it determines that the discharge authorized pursuant to the
10wetland general or individual permit will comply with all applicable water quality
11standards.
SB600,6 12Section 6. 281.36 (3m) (a) of the statutes, as affected by 2017 Wisconsin Act
1358
, is amended to read:
SB600,4,2314 281.36 (3m) (a) When permit required. Any person wishing to proceed with a
15discharge into any wetland shall submit an application for a wetland individual
16permit under this subsection unless the discharge has been authorized under a
17wetland general permit as provided in sub. (3g) or is exempt under sub. (4) or, (4m)
18(a), or (4n). Before submitting the application, the department shall hold a meeting
19with the applicant to discuss the details of the proposed discharge and the
20requirements for submitting the application and for delineating the wetland. An
21applicant may include in the application a request for a public informational hearing.
22The application shall be accompanied by the applicable fee specified in sub. (11) or
23(12) (a).
SB600,7 24Section 7. 281.36 (3n) (d) of the statutes is amended to read:
SB600,5,6
1281.36 (3n) (d) Mitigation required. The department shall require mitigation
2under the program established under sub. (3r) for wetland individual permits it
3issues under this subsection and for any discharge exempt from permitting
4requirements under sub. (4n)
. This subsection does not entitle an applicant to a
5wetland individual permit or any other approval in exchange for conducting
6mitigation.
SB600,8 7Section 8. 281.36 (3r) (a) (intro.) of the statutes is amended to read:
SB600,5,118 281.36 (3r) (a) (intro.) The department shall establish a mitigation program
9that applies only to the issuance of wetland individual permits and to discharges that
10are exempt from permitting requirements under sub. (4n)
and that allows mitigation
11to be accomplished by any of the following methods:
SB600,9 12Section 9. 281.36 (3r) (a) 4. of the statutes is repealed.
SB600,10 13Section 10. 281.36 (3r) (e) of the statutes is amended to read:
SB600,6,214 281.36 (3r) (e) As part of the mitigation program established under par. (a), the
15department may establish an in lieu fee subprogram, under which payments are
16made to the department or another entity for the purposes of restoring, enhancing,
17creating, or preserving wetlands or other water resource features. The subprogram
18must be approved by the U.S. army corps of engineers. The department shall
19establish requirements for calculating the in lieu fee payments. Under the in lieu
20fee subprogram, the wetlands that benefit from the subprogram shall be open to the
21public for hunting, fishing, trapping, cross-country skiing, or hiking or any
22combination thereof, but the department may establish reasonable restrictions on
23the use of the land by the public in order to protect public safety or to protect a unique
24plant or animal community. The subprogram shall be consistent with federal
25regulations and the department may not impose requirements or conditions under

1the subprogram that exceed the requirements and conditions established by the U.S.
2army corps of engineers under 33 CFR 332
.
SB600,11 3Section 11. 281.36 (3r) (f) of the statutes is created to read:
SB600,6,94 281.36 (3r) (f) The department shall expend moneys received for the in lieu fee
5subprogram under par. (e) within 24 months of being credited the moneys. No later
6than the 3rd month of each legislative session, the department shall provide to the
7governor and the appropriate standing committees of the legislature a report
8explaining how the department expended the moneys and, if necessary, why the
9department failed to expend all of the moneys.
SB600,12 10Section 12. 281.36 (3s) of the statutes is repealed.
SB600,13 11Section 13. 281.36 (4) (title) of the statutes is amended to read:
SB600,6,1212 281.36 (4) (title) Exemptions ; certain activities.
SB600,14 13Section 14. 281.36 (4n) of the statutes is created to read:
SB600,6,1514 281.36 (4n) Exemption; nonfederal wetlands. The permitting requirement
15under sub. (3b) does not apply to any discharge into a nonfederal wetland.
SB600,15 16Section 15. 281.36 (6) (a) (intro.) of the statutes is amended to read:
SB600,6,1917 281.36 (6) (a) (intro.) The department shall promulgate rules to interpret and
18implement the provisions under subs. (4), (4n), and (5). In promulgating these rules,
19the department shall do all of the following:
SB600,16 20Section 16. 281.36 (9) (a) (intro.) of the statutes is amended to read:
SB600,7,221 281.36 (9) (a) (intro.) For purposes of determining whether to issue a wetland
22individual permit, whether authorization to proceed as authorized under a wetland
23general permit is appropriate, or whether an exemption under sub. (4) or (4n) is
24appropriate, and for purposes of enforcing this section, any employee or other

1representative of the department, upon presenting his or her credentials, may do any
2of the following:
SB600,17 3Section 17. Nonstatutory provisions.
SB600,7,74 (1) Notwithstanding section 281.36 (3r) (f) of the statutes, no later than June
530, 2019, the department of natural resources shall expend all moneys received prior
6to the effective date of this subsection .... [LRB inserts date], for the in lieu fee
7subprogram under section 281.36 (3r) (e) of the statutes.
SB600,18 8Section 18. Effective dates. This act takes effect on the day after publication,
9except as follows:
SB600,7,1110 (1) The treatment of section 281.36 (3r) (f) of the statutes takes effect on
11January 7, 2019.
SB600,7,1212 (End)
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