Amendment ASA1-AB322

2001 - 2002 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2001 ASSEMBLY BILL 322

April 24, 2001 - Offered by Representative Kedzie.

AB322-ASA1,1,7 An Act to repeal 23.321 (1) (c); to renumber 23.321 (title) and (1) (title), (a) and (b), 23.321 (1) (d) to (f) and 23.321 (2); to renumber and amend 23.321 (2m) to (5); to amend 281.22 (title), 281.22 (3), 281.69 (3) (b) 2., 281.98 (1) and 299.95; and to create 281.01 (21), 281.22 (4) and 281.36 of the statutes; relating to: water quality certification for nonfederal wetlands, time limits for processing applications for water quality certifications, granting rule-making authority, and providing a penalty.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB322-ASA1, s. 1 Section 1. 23.321 (title) and (1) (title), (a) and (b) of the statutes are renumbered 281.37 (title) and (1) (title), (a) and (b).

AB322-ASA1, s. 2 Section 2. 23.321 (1) (c) of the statutes is repealed.

AB322-ASA1, s. 3 Section 3. 23.321 (1) (d) to (f) of the statutes are renumbered 281.37 (1) (d) to (f).

AB322-ASA1, s. 4 Section 4. 23.321 (2) of the statutes, as created by 1999 Wisconsin Act 147, is renumbered 281.37 (2).

AB322-ASA1, s. 5 Section 5. 23.321 (2m) to (5) of the statutes are renumbered 281.37 (2m) to (5), and 281.37 (2m) (a) and (b) 3., as renumbered, are amended to read:

AB322-ASA1,2,11 281.37 (2m) (a) 1. A person who is the holder of a permit or other approval that authorizes a mitigation project shall grant a conservation easement under s. 700.40 to the department to ensure that a wetland that is being restored, enhanced, or created will not be destroyed or substantially degraded by any subsequent owner proprietor of or holder of interest in the property on which the wetland is located. The department shall revoke the permit or other approval if the holder of the permit or other approval fails to take these measures.

AB322-ASA1,2,16 2. A person who is restoring, enhancing, or creating a wetland to provide transferable credits as part of a wetlands mitigation bank shall grant a conservation easement under s. 700.40 to the department, to ensure that the wetland will not be destroyed or substantially degraded by any subsequent owner proprietor of or holder of interest in the property on which the wetland is located.

AB322-ASA1,2,19 (b) 3. Any subsequent owner proprietor of or holder of interest in the property on which the wetland specified in subd. 1. is located did not contribute to the loss of the wetland.

AB322-ASA1, s. 6 Section 6. 281.01 (21) of the statutes is created to read:

AB322-ASA1,2,21 281.01 (21) "Wetland" has the meaning given in s. 23.32 (1).

AB322-ASA1, s. 7 Section 7. 281.22 (title) of the statutes is amended to read:

AB322-ASA1,2,24 281.22 (title) Fees and time limits for water quality determinations for wetlands.

AB322-ASA1, s. 8 Section 8. 281.22 (3) of the statutes is amended to read:

AB322-ASA1,3,2 281.22 (3) Exemptions from fees. This section does Subsections (1), (2) and (2m) do not apply to any federal agency or state agency.

AB322-ASA1, s. 9 Section 9. 281.22 (4) of the statutes is created to read:

AB322-ASA1,3,12 281.22 (4) Time limits. The department shall promulgate a rule to establish time limits for the steps involved in processing, approving, and denying applications for water quality certifications under s. 281.36 and for other determinations that the department makes as to whether projects comply with the standards of water quality established by rules promulgated under s. 281.15 that are applicable to wetlands. Upon referral of any proposed rule under this subsection to the presiding officers of each house of the legislature under s. 227.19 (2), the presiding officers shall refer the proposed rule to a senate committee and an assembly committee concerned with the environment.

AB322-ASA1, s. 10 Section 10. 281.36 of the statutes is created to read:

AB322-ASA1,3,15 281.36 Water quality certification for nonfederal wetlands. (1) Definitions. In this section:

AB322-ASA1,3,16 (a) "Additional federal law or interpretation" means any of the following:

AB322-ASA1,3,18 1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.

AB322-ASA1,3,20 2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.

AB322-ASA1,3,25 3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.

AB322-ASA1,4,3 4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in subds. 1. to 3., that applies to wetlands located in this state, and that is issued after January 9, 2001.

AB322-ASA1,4,4 (b) "Existing federal law or interpretation" means any of the following:

AB322-ASA1,4,5 1. 33 USC 1344 (f), as amended to January 8, 2001.

AB322-ASA1,4,10 2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.

AB322-ASA1,4,14 3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in subd. 1. or 2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.

AB322-ASA1,4,16 (bn) "Governmental unit" means the federal government, the state, a city, a village, a county, or a town.

AB322-ASA1,4,18 (c) "Nonfederal wetland" means a wetland that is identified as such under sub. (1m).

AB322-ASA1,4,20 (d) "Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15.

AB322-ASA1,4,22 (1m) Determination of nonfederal wetlands. (a) A wetland is identified as a nonfederal wetland if either of the following applies:

AB322-ASA1,5,3 1. Any discharges of dredged or fill material into the wetland are determined not to be subject to regulation under 33 USC 1344 due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.

AB322-ASA1,5,8 2. The wetland is determined to be a nonnavigable, intrastate, and isolated wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.

AB322-ASA1,5,9 (b) For the purpose of identifying wetlands under par. (a):

AB322-ASA1,5,11 1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.

AB322-ASA1,5,14 2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.

AB322-ASA1,5,21 (2) Certification requirement. No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.

AB322-ASA1,6,12 (3) Delineation procedures. For purposes of delineating the boundary of a nonfederal wetland, the department and the person who is applying for or who holds a water quality certification under this section shall use the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department by rule designates that edition as the one to be used under this subsection. If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after the effective date of this paragraph .... [revisor inserts date], the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.

AB322-ASA1,6,15 (4) Exemptions. Except as provided in sub. (5), the certification requirement under sub. (2) does not apply to any discharge that is the result of any of the following activities:

AB322-ASA1,6,16 (a) Normal farming, silviculture, or ranching activities.

AB322-ASA1,6,18 (b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.

AB322-ASA1,6,20 (c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.

AB322-ASA1,6,21 (d) Maintenance of drainage ditches.

AB322-ASA1,6,24 (e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:

AB322-ASA1,7,2 1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

AB322-ASA1,7,3 2. That the reach of the affected nonfederal wetland is not reduced.

AB322-ASA1,7,5 3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.

AB322-ASA1,7,10 (5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification requirement under sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:

AB322-ASA1,7,11 (a) Impair the flow or circulation of any nonfederal wetland.

AB322-ASA1,7,12 (b) Reduce the reach of any nonfederal wetland.

AB322-ASA1,7,15 (6) Rules for exemptions. (a) The department shall promulgate rules to interpret and implement the provisions under subs. (4) and (5). In promulgating these rules, the department shall do all of the following:

AB322-ASA1,7,16 1. Make the rules consistent with existing federal law.

AB322-ASA1,7,17 2. Incorporate any additional federal law or interpretation into the rules.

AB322-ASA1,7,21 (b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.

AB322-ASA1,8,3 (7) Rules prohibition. The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if the area to be filled is less than one acre in size and a governmental unit has determined that the discharge is necessary for public safety.

AB322-ASA1,8,8 (8) General water quality certifications. (a) In lieu of issuing individual water quality certifications under this section, the department may issue a general water quality certification for types of discharges that the department determines are similar in nature or for the purpose of simplifying the certification process if the discharges meet all of the following standards:

AB322-ASA1,8,10 1. The discharges will cause only minimal adverse environmental effects, as determined by the department, if they are performed separately.

AB322-ASA1,8,12 2. The cumulative adverse effect on the environment by the discharges will be minimal, as determined by the department.

AB322-ASA1,8,14 (b) No general water quality certification issued under par. (a) may be effective for more than 5 years after the date of its issuance.

AB322-ASA1,8,17 (bn) 1. The department shall issue general water quality certifications that are consistent with all of the general permits issued under 33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state.

AB322-ASA1,8,21 2. If a general permit as specified in subd. 1. is amended or modified after January 8, 2001, the department shall incorporate the amendments or modifications into the general water quality certification issued under subd. 1. and may not otherwise amend or modify the general water quality certification.

AB322-ASA1,9,3 (c) If the department determines that any of the discharges under a general water quality certification issued under par. (a) fails to meet any of the standards in par. (a), the department shall modify the certification so that the discharges meet all of the standards. If the department cannot modify the certification so that all of the standards will be met or if the department determines that the discharges subject to the general certification are more appropriately certified by using individual water quality certifications, the department shall revoke the general certification.

AB322-ASA1,9,6 (d) Before issuing, modifying, or revoking a general water quality certification issued under par. (a), the department shall provide notice and a hearing under ss. 227.17 and 227.18.

AB322-ASA1,9,9 (9) Inspection authority. (a) For purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

AB322-ASA1,9,12 1. Enter and inspect any property on which is located a nonfederal wetland, or part of a nonfederal wetland, for which an application for a water quality certification has been submitted to the department.

AB322-ASA1,9,15 2. Enter and inspect any property on which is located a nonfederal wetland to investigate a discharge of dredged or fill material that the department has reason to believe is in violation of this section.

AB322-ASA1,9,17 3. Gain access to and inspect any records that the department requires a holder of a water quality certification to keep.

AB322-ASA1,9,24 (am) An employee or representative of the department may not exercise the authority granted under par. (a) 1. before the date on which the application is submitted. If the application is denied or withdrawn, an employee or representative of the department may not exercise this authority after the date on which the application is denied or withdrawn. If the application is approved, an employee or representative of the department may not exercise this authority after the 20th day immediately following the completion of the discharge of the dredged or fill material.

AB322-ASA1,10,2 (ar) 1. Before entering and inspecting a property under par. (a) 2., the department shall make at least one of the following requests:

AB322-ASA1,10,3 a. A request for consent from the proprietor to enter and inspect the property.

AB322-ASA1,10,6 b. A request, orally or in writing, that the proprietor provide an oral or written explanation, as elected by the department, concerning the activity that the department has reason to believe may constitute a violation of this section.

AB322-ASA1,10,10 2. a. If the proprietor grants consent for the entry on, and the inspection of, the property to investigate a discharge as authorized under par. (a) 2., the department, upon reasonable advance notice, may enter and inspect the property in compliance the terms of the consent granted by the proprietor.

AB322-ASA1,10,15 b. If the proprietor refuses to grant consent for the entry on, or the inspection of, the property or if the proprietor's explanation or terms of consent are not acceptable to the department of natural resources, the department of natural resources may refer the matter to the department of justice for enforcement under s. 299.95.

AB322-ASA1,10,19 c. If the proprietor fails to respond to all requests made under subd. 1., an agent of the department of natural resources may apply for, obtain, and execute a special inspection warrant under s. 66.0119. The department shall give the proprietor reasonable advance notice of its intent to apply for the warrant.

AB322-ASA1,10,22 3. Any employee or representative of the department may make the requests under subd. 1., enter or inspect property under subd. 2. a., or execute a warrant under subd. 2. c. only during reasonable hours.

AB322-ASA1,11,2 (b) Any employee or representative of the department may exercise the authority granted under par. (a) 1. or 3. only during reasonable hours and only after the department has provided reasonable advance notice to the proprietor of the property involved or to the holder of the water quality certification.

AB322-ASA1,11,6 (c) An employee or representative of the department may not gain access to or inspect any records as authorized under par. (a) 3. unless the holder of the water quality certification, or the holder's designee, is present or unless the holder of the certification waives this requirement.

AB322-ASA1,11,8 (10) Other requirements. This section does not affect the authority of the department to do any of the following:

AB322-ASA1,11,11 (a) Regulate the discharge of dredged or fill material in a nonfederal wetland under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.

AB322-ASA1,11,13 (b) Issue a water quality certification under rules promulgated under this chapter to implement 33 USC 1341 (a).