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.
1An Act to repeal
281.36 (3r) (a) 4. and 281.36 (3s); to amend
20.370 (9) (bm), 2
281.36 (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) 5
of 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
Analysis by the Legislative Reference Bureau
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
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:
(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.
and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for 7
the restoration or creation of wetlands and for any other activities authorized under 8
the in lieu fee subprogram.
281.12 (2) of the statutes is created to read:
The department, on behalf of and at the direction of the governor, 11
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 13
individual and general permit program for the discharge of dredged or fill material 14
into the navigable waters of this state. If the federal environmental protection 15
agency delegates this authority to this state, the department may assume that 16
281.36 (1) (ad) of the statutes is created to read:
(ad) “Artificial wetland” means a wetland created by human 19
modifications to the landscape or hydrology and for which the department has no 20
definitive evidence showing a prior wetland or stream history. “Artificial wetland”
does not include a wetland that is subject to federal jurisdiction under 33 USC 1344 2
or a wetland created as a result of the mitigation program under sub. (3r).
281.36 (1) (e) of the statutes is created to read:
(e) “Wetland” has the meaning given in s. 23.32 (1) but does not 5
include an artificial wetland.
(b) No person may discharge dredged material or fill material into 9
a wetland unless the discharge is authorized by a wetland general permit or 10
individual permit issued by the department under this section or the discharge is 11
exempt under sub. (4) or,
, or (4n)
. No person may violate any condition 12
contained in a wetland general or individual permit issued by the department under 13
this section. The department may not issue a wetland general or individual permit 14
under this section unless it determines that the discharge authorized pursuant to the 15
wetland general or individual permit will comply with all applicable water quality 16
(a) When permit required.
Any person wishing to proceed with a 20
discharge into any wetland shall submit an application for a wetland individual 21
permit under this subsection unless the discharge has been authorized under a 22
wetland general permit as provided in sub. (3g) or is exempt under sub. (4) or,
(a), or (4n)
. Before submitting the application, the department shall hold a meeting 24
with the applicant to discuss the details of the proposed discharge and the 25
requirements for submitting the application and for delineating the wetland. An
applicant may include in the application a request for a public informational hearing. 2
The application shall be accompanied by the applicable fee specified in sub. (11) or 3
281.36 (3n) (d) of the statutes is amended to read:
(d) Mitigation required.
The department shall require mitigation 6
under the program established under sub. (3r) for wetland individual permits it 7
issues under this subsection and for any discharge exempt from permitting
8requirements under sub. (4n)
. This subsection does not entitle an applicant to a 9
wetland individual permit or any other approval in exchange for conducting 10
281.36 (3r) (a) (intro.) of the statutes is amended to read:
(a) (intro.) The department shall establish a mitigation program 13
that applies only to the issuance of wetland individual permits
and to discharges that
14are exempt from permitting requirements under sub. (4n)
and that allows mitigation 15
to be accomplished by any of the following methods:
281.36 (3r) (a) 4. of the statutes is repealed.
281.36 (3r) (e) of the statutes is amended to read:
(e) As part of the mitigation program established under par. (a), the 19
department may establish an in lieu fee subprogram, under which payments are 20
made to the department or another entity for the purposes of restoring, enhancing, 21
creating, or preserving wetlands or other water resource features. The subprogram 22
must be approved by the U.S. army corps of engineers. The department shall 23
establish requirements for calculating the in lieu fee payments. Under the in lieu 24
fee subprogram, the wetlands that benefit from the subprogram shall be open to the 25
public for hunting, fishing, trapping, cross-country skiing, or hiking or any
combination thereof, but the department may establish reasonable restrictions on 2
the use of the land by the public in order to protect public safety or to protect a unique 3
plant or animal community. The subprogram shall be consistent with federal 4
regulations and the department may not impose requirements or conditions under
5the subprogram that exceed the requirements and conditions established by the U.S.
6army corps of engineers under 33 CFR 332
281.36 (3r) (f) of the statutes is created to read:
(f) The department shall expend moneys received for the in lieu fee 9
subprogram under par. (e) within 24 months of being credited the moneys. No later 10
than the 3rd month of each legislative session, the department shall provide to the 11
governor and the appropriate standing committees of the legislature a report 12
explaining how the department expended the moneys and, if necessary, why the 13
department failed to expend all of the moneys.
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) Exemption; nonfederal wetlands.
The permitting requirement 19
under sub. (3b) does not apply to any discharge into a nonfederal wetland.
281.36 (6) (a) (intro.) of the statutes is amended to read:
(a) (intro.) The department shall promulgate rules to interpret and 22
implement the provisions under subs. (4), (4n),
and (5). In promulgating these rules, 23
the department shall do all of the following:
281.36 (9) (a) (intro.) of the statutes is amended to read:
(a) (intro.) For purposes of determining whether to issue a wetland 2
individual permit, whether authorization to proceed as authorized under a wetland 3
general permit is appropriate, or whether an exemption under sub. (4) or (4n)
appropriate, and for purposes of enforcing this section, any employee or other 5
representative of the department, upon presenting his or her credentials, may do any 6
of the following:
(1) Notwithstanding section 281.36 (3r) (f) of the statutes, no later than June 9
30, 2019, the department of natural resources shall expend all moneys received prior 10
to the effective date of this subsection for the in lieu fee subprogram under section 11
281.36 (3r) (e) of the statutes.
This act takes effect on the day after publication, 13
except as follows: