Amendment ASA1-SB368

SB368-ASA1, s. 71 Section 71. 281.36 (3b) (title) of the statutes is created to read:

SB368-ASA1,14,7 281.36 (3b) (title) Permit required.

SB368-ASA1, s. 72 Section 72. 281.36 (3b) (a) of the statutes is created to read:

SB368-ASA1,14,11 281.36 (3b) (a) For purposes of this section, a wetland general or individual permit issued by the department constitutes water quality certification as required by 33 USC 1341 (a).

SB368-ASA1, s. 73 Section 73. 281.36 (3g) (title) of the statutes is created to read:

SB368-ASA1,14,13 281.36 (3g) (title) Wetland general permits.

SB368-ASA1, s. 74 Section 74. 281.36 (3g) (a) of the statutes is created to read:

SB368-ASA1,14,16 281.36 (3g) (a) Required permits. The department shall issue a wetland general permit for each of the following types of discharges:

SB368-ASA1,14,19 1. A discharge that is necessary for the treatment or disposal of hazardous waste or toxic pollutants, if the discharge does not contain hazardous waste or toxic pollutants and does not affect more than 2 acres of wetland.

SB368-ASA1,14,21 2. A discharge that is necessary for temporary access and dewatering, if the discharge does not affect more than 2 acres of wetland.

SB368-ASA1,14,23 3. A temporary or permanent discharge for routine utility construction and maintenance projects and activities.

SB368-ASA1,15,2 4. A discharge that is part of a development for industrial purposes, if the discharge does not affect more than 10,000 square feet of wetland. For purposes of this subdivision, the development of a waste disposal site is considered to be a development for industrial purposes.

SB368-ASA1,15,4 5. A discharge that is part of a development for commercial purposes, if the discharge does not affect more than 10,000 square feet of wetland.

SB368-ASA1,15,6 6. A discharge that is part of a development for residential purposes, if the discharge does not affect more than 10,000 square feet of wetland.

SB368-ASA1,15,8 7. A discharge that is part of a development for agricultural purposes, if the discharge does not affect more than 10,000 square feet of wetland.

SB368-ASA1,15,10 8. A discharge that is part of a development for municipal purposes, if the discharge does not affect more than 10,000 square feet of wetland.

SB368-ASA1,15,12 9. A discharge that is part of a development for recreational purposes, if the discharge does not affect more than 10,000 square feet of wetland.

SB368-ASA1,15,16 10. A discharge that is necessary for the construction, reconstruction, or maintenance of a bridge or culvert that is part of a transportation project that is being carried out under the direction and supervision of a city, village, town, or county.

SB368-ASA1, s. 75 Section 75. 281.36 (3g) (c) of the statutes is created to read:

SB368-ASA1,15,20 281.36 (3g) (c) Additional permits. The department may issue wetland general permits, in addition to those required under pars. (a) and (b), to regulate other discharges that affect wetlands located in this state.

SB368-ASA1, s. 76 Section 76. 281.36 (3g) (d) of the statutes is created to read:

SB368-ASA1,16,3 281.36 (3g) (d) Requirements; conditions; restrictions. In issuing wetland general permits under this subsection, the department shall establish requirements, conditions, and exceptions to ensure that the discharges will cause only minimal adverse environmental effects, and a general permit may apply only to a single and complete project. As part of a general permit, the department may prohibit discharges into wetlands that are identified by the department as being one of the following:

SB368-ASA1,16,4 1. Great Lakes ridge and swale complexes.

SB368-ASA1,16,5 2. Interdunal wetlands.

SB368-ASA1,16,6 3. Coastal plain marshes.

SB368-ASA1,16,7 4. Emergent marshes containing wild rice.

SB368-ASA1,16,10 5m. Sphagnum bogs that are located in the area located south of a horizontal line drawn across the state based on the routes of STH 16 and STH 21 west of Lake Winnebago and on USH 151 east of Lake Winnebago.

SB368-ASA1,16,11 6. Boreal rich fens.

SB368-ASA1,16,12 7. Calcareous fens.

SB368-ASA1, s. 77 Section 77. 281.36 (3g) (e) of the statutes is created to read:

SB368-ASA1,16,17 281.36 (3g) (e) Period of validity; subsequent actions. A wetland general permit issued under this subsection is valid for a period of 5 years. Upon compliance with the requirements under pars. (f) to (g), the department may renew, modify, or revoke a wetland general permit issued under this subsection.

SB368-ASA1, s. 78 Section 78. 281.36 (3g) (f) of the statutes is created to read:

SB368-ASA1,16,22 281.36 (3g) (f) Public notice. The department shall provide to interested members of the public notices of its intention to issue, renew, modify, or revoke a wetland general permit under this subsection. Procedures for providing public notices shall include all of the following:

SB368-ASA1,16,23 1. Publication of a class 1 notice under ch. 985.

SB368-ASA1,16,25 2. Providing a copy of the notice to any person or group upon request of the person or group.

SB368-ASA1,17,1 3. Publication of the notice on the department's Internet Web site.

SB368-ASA1, s. 79 Section 79. 281.36 (3g) (fg) of the statutes is created to read:

SB368-ASA1,17,6 281.36 (3g) (fg) Date of notice. For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet Web site shall be considered the date of public notice.

SB368-ASA1, s. 80 Section 80. 281.36 (3g) (fm) of the statutes is created to read:

SB368-ASA1,17,13 281.36 (3g) (fm) Written comments. The department shall provide a period of not less than 30 days after the date of the public notice during which time interested persons may submit their written comments on the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. All written comments submitted during the period for comment shall be retained by the department and considered by the department in acting on the general permit.

SB368-ASA1, s. 81 Section 81. 281.36 (3g) (fr) of the statutes is created to read:

SB368-ASA1,17,17 281.36 (3g) (fr) Description in notice. Every public notice provided by the department under par. (f) shall include a description of the discharges to be authorized under the wetland general permit.

SB368-ASA1, s. 82 Section 82. 281.36 (3g) (g) of the statutes is created to read:

SB368-ASA1,17,25 281.36 (3g) (g) Public informational hearing. 1. The department shall provide an opportunity for any interested state agency or federal agency or person or group of persons to request a public informational hearing with respect to the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. The request for the hearing shall be filed with the department within 30 days after the provision of the public notice under par. (f) and shall indicate the interest of the party filing the request and the reasons why the hearing is warranted.

SB368-ASA1,18,4 2. The department shall hold a public informational hearing upon a request under subd. 1. if the department determines that there is a significant public interest in holding such a hearing. Hearings held under this subsection are not contested cases under s. 227.01 (3).

SB368-ASA1,18,11 3. Public notice of any hearing held under this subsection shall be circulated in accordance with the requirements under par. (f). The public notice shall include the time, date, and location of the hearing, a summary of the subject matter of the wetland general permit, and information indicating where additional information about the general permit may be viewed on the department's Internet Web site. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the general permit.

SB368-ASA1, s. 83 Section 83. 281.36 (3g) (h) of the statutes is created to read:

SB368-ASA1,19,4 281.36 (3g) (h) Authorizations for discharges under wetland general permits. 1. A person wishing to proceed with a discharge that may be authorized under a wetland general permit shall apply to the department, with written notification of the person's wish to proceed, not less than 30 days before commencing the discharge authorized by the general permit unless subd. 4. applies. The application shall provide information describing the discharge in order to allow the department to determine whether the discharge is authorized by the wetland general permit and shall give the department consent to enter and inspect the site, subject to sub. (9). The application shall identify all activities affecting wetlands that will be conducted as part of the single and complete project. The application shall include a detailed explanation of why the impact to the wetland cannot be avoided and how the impact to the wetland will be minimized to the greatest extent practicable. The application shall be accompanied by the fee specified in sub. (12) (a). If the application is for authorization to proceed under a wetland general permit that is issued under sub. (3g) (a) 4., 5., or 6., the application shall be accompanied by a surcharge fee, as calculated under sub. (11). The department may make a request for additional information one time during this 30-day period.

SB368-ASA1,19,11 2. If, within 30 days after an application under subd. 1. is received by the department, the department does not either request additional information or inform the applicant that a wetland individual permit will be required as provided in par. (i), the discharge shall be considered to be authorized under the wetland general permit and the applicant may proceed without further notice, hearing, permit, or approval if the discharge is carried out in compliance with all of the conditions of the general permit.

SB368-ASA1,19,17 2m. If adverse weather conditions prevent the department from conducting an accurate on-site inspection during this 30-day period specified in subd. 1., the department shall give notice to the person wishing to proceed with the discharge that adverse weather conditions will prevent the department from complying with the 30-day deadline and shall complete the inspection as soon as weather conditions permit.

SB368-ASA1,19,21 3. If the department requests additional information under subd. 1., the 30-day period is tolled from the date the person applying for authorization to proceed receives the request until the date on which the department receives all of the additional information.

SB368-ASA1,20,2 4. As part of a wetland general permit issued under par. (b) or (c), the department may waive the requirement that a person wishing to proceed under the general permit apply to the department as required under this paragraph so that the person may proceed with the discharge without specific authorization from the department.

SB368-ASA1,20,5 5. Authorization to proceed under a wetland general permit is valid for 5 years after the date on which the discharge is considered to be authorized or until the discharge is completed, whichever occurs first.

SB368-ASA1, s. 84 Section 84. 281.36 (3g) (i) of the statutes is created to read:

SB368-ASA1,20,14 281.36 (3g) (i) Wetland individual permit in lieu of wetland general permit. For a proposed discharge for which an application has been received by the department under par. (h), the department may decide to require that a person who submitted the application apply for a wetland individual permit if the department has inspected the site as provided in par. (h) and has determined 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.

SB368-ASA1, s. 85 Section 85. 281.36 (3m) of the statutes is created to read:

SB368-ASA1,21,2 281.36 (3m) Wetland individual permits. (a) When permit required. Any person wishing to proceed with a discharge into any wetland shall submit an application for a wetland individual permit under this subsection unless the discharge has been authorized under a wetland general permit as provided in sub. (3g) or is exempt under sub. (4). The department shall hold a preapplication meeting with the potential applicants to discuss the details of the proposed discharge and the requirements for submitting the application and for delineating the wetland. As part of the preapplication meeting, the department shall identify and establish the scope of the analysis of practicable alternatives that will be required. An applicant may include in the application a request for a public informational hearing. The application shall be accompanied by the applicable fee specified in sub. (11) or (12) (a).

SB368-ASA1,21,8 (b) Analysis of practicable alternatives. An applicant shall include in an application submitted under par. (a) a proposed analysis explaining the practicable alternatives that were considered to first avoid and then minimize the adverse impacts of the discharge on wetland functional values and that will not result in any other significant adverse environmental consequences. The application shall also include a description of the proposed mitigation method as required under sub. (3r).

SB368-ASA1,21,16 (c) Review; no additional information required. In issuing wetland individual permits under this section, the department shall review an application, and within 30 days after the application is submitted, the department shall determine that either the application is complete or that additional information is needed. If the department determines that the application is complete, the department shall notify the applicant in writing of that fact within the 30-day period, and the date on which the notice under this paragraph is sent shall be considered the date of closure for purposes of par. (g) 1.

SB368-ASA1,22,3 (d) Additional information requested. If the department determines that the application is incomplete, the department shall notify the applicant in writing and may make only one request for additional information during the 30-day period specified in par. (c). Within 10 days after receiving all of the requested information from the applicant, the department shall notify the applicant in writing as to whether the application is complete. The date on which the 2nd notice under this paragraph is sent shall be set as the date of closure for purposes of par. (g) 1. The department may request additional information from the applicant to supplement the application, but the department may not request items of information that are outside the scope of the original request unless the applicant and the department both agree. A request for any such additional information may not affect the date of closure.

SB368-ASA1,22,7 (e) Specificity of notice; limits on information. Any notice stating that an application has been determined to be incomplete or any other request for information that is sent under par. (d) shall state the reason for the determination or request and the specific items of information that are still needed.

SB368-ASA1,22,11 (f) Failure to meet time limits. If the department fails to meet the 30-day time limit under par. (c) or 10-day time limit under par. (d), the application shall be considered to have a date of closure that is the last day of that 30-day or 10-day time period for purposes of par. (g) 1.

SB368-ASA1,22,16 (g) Notice of application. 1. Within 15 days after the date of closure, as determined under par. (c) or (d), the department shall provide notice of pending application to interested members of the public. If the applicant has requested a public informational hearing as part of the submitted application, a notice of the public hearing shall be part of the notice of pending application.

SB368-ASA1,22,21 2. If the notice of pending application does not contain a notice of public informational hearing, any person may request a public informational hearing in writing or the department may decide to hold a public informational hearing with or without a request being submitted if the department determines that there is a significant public interest in holding a hearing.

SB368-ASA1,23,3 (h) Request for hearing. A request for a public informational hearing under par. (g) 2. must be submitted to the department or the department's decision to hold a public informational hearing must occur within 20 days after the department provides the notice of pending application. The department shall provide notice of public informational hearing within 15 days after the request for the public hearing is submitted or the department makes its decision to hold a public informational hearing.

SB368-ASA1,23,12 (i) Decision. Within 20 days after the period for public comment under par. (j) has ended or if no public informational hearing is held, within 30 days after the 30-day comment period under par. (j) has ended, the department shall render a decision issuing or denying the wetland individual permit that is the subject of the application submitted under par. (a). If the decision issued by the department under this paragraph is a denial, the department shall include in the decision the specific grounds and reasons as to how the applicable provisions of this section were not met. If the denial is based on an incomplete application, the department shall inform the applicant of the areas of the application that were incomplete.

SB368-ASA1,23,20 (j) Public comment. 1. The department shall provide a period for public comment after the department has provided a notice of pending application under par. (g) during which time any person may submit written comments with respect to the application for a wetland individual permit. The department shall retain all of the written comments submitted during this period and shall consider all of the comments in rendering a decision on the application. The period for public comment shall end on the 30th day following the date on which the department provides the notice of pending application except as provided in subd. 2.

SB368-ASA1,23,22 2. If a public informational hearing is held, the period for public comment shall end on the 10th day following the date on which the hearing is completed.

SB368-ASA1, s. 86 Section 86. 281.36 (3n) of the statutes is created to read:

SB368-ASA1,24,22 281.36 (3n) Review by department. (a) Review limits. For the purpose of issuing a wetland individual permit, during the period between the date on which the application under sub. (3m) (a) is submitted and the date on which a decision under sub. (3m) (i) is rendered, the department shall conduct its review under this subsection. The department shall review the analysis of practicable alternatives presented in the application under sub. (3m) (b). The department shall limit the scope of the practicable alternatives that will be considered and shall determine which possible alternatives are practicable in a manner that is consistent with the memorandum of understanding entered into between the U.S. environmental protection agency and the U.S. army corps of engineers relating to the level of analysis required for evaluating compliance with 1333 USC 1344b that is in effect on the effective date of this paragraph .... [LRB inserts date]. In order for an alternative that would be implemented at a site that is not owned by the applicant at the time the application is submitted and that would be located more than one-half mile from the discharge to be considered practicable, the applicant must be reasonably able to acquire, expand into, or otherwise manage the site in a manner that will fulfill the basic purpose of the proposed discharge or the proposed project of which the proposed discharge would be a part. The department also shall limit its review to those practicable alternatives that are located at the site of the discharge and that are located adjacent to that site if the applicant has demonstrated that the proposed project is necessary for the expansion of an existing industrial, commercial, or agricultural facility that is in existence at the time the application is submitted, or that the proposed project will occur in an industrial park that is in existence at the time the application is submitted.

SB368-ASA1,25,2 (am) Standards for issuing permits. The department shall make a finding that a proposed project causing a discharge is in compliance with water quality standards and that a wetland individual permit may be issued if the department determines that all of the following requirements are met:

SB368-ASA1,25,5 1. The proposed project represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

SB368-ASA1,25,7 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

SB368-ASA1,25,10 3. The proposed project will not result in significant adverse impact to wetland functional values, in significant adverse impact to water quality, or in other significant adverse environmental consequences.

SB368-ASA1,25,12 (b) Factors to be used. In making a determination that the requirement under par. (am) 3. is met, the department shall consider all of the following factors:

SB368-ASA1,25,13 1. The direct impacts of the proposed project to wetland functional values.

SB368-ASA1,25,16 2. The cumulative impacts attributable to the proposed project that may occur to wetland functional values based on past impacts or reasonably anticipated impacts caused by similar projects in the area affected by the project.

SB368-ASA1,25,18 3. Potential secondary impacts of the proposed project to wetland functional values.

SB368-ASA1,25,21 4m. The impact that any mitigation required under sub. (3r) will cause to the functional values of the wetlands that are located in the watershed in which the discharge will occur.

SB368-ASA1,25,23 5m. The net positive or negative environmental impact of the proposed project on the watershed in which the discharge will occur.

SB368-ASA1,25,25 6. Whether there will be more than a minimal impact from the proposed project on flood control or wildlife habitat.

SB368-ASA1,26,4 (d) Mitigation required. The department shall require mitigation under the program established under sub. (3r) for wetland individual permits it issues under this subsection. This subsection does not entitle an applicant to a wetland individual permit or any other approval in exchange for conducting mitigation.

SB368-ASA1, s. 87 Section 87. 281.36 (3p) of the statutes is created to read:

SB368-ASA1,26,10 281.36 (3p) Notice requirements; wetland individual permits. (a) The department shall establish procedures for providing notices of pending applications and notices of public informational hearings to be provided under sub. (3m) and notices of administrative hearings under sub. (3q). The procedures shall require all of the following:

SB368-ASA1,26,11 1. That the notice be published as a class 1 notice under ch. 985.

SB368-ASA1,26,13 2. That the notice be provided to any person or group upon request of the person or group.

SB368-ASA1,26,14 3. That the notice be published on the department's Internet Web site.

SB368-ASA1,26,18 (b) The department shall prescribe the form and content of notices of pending applications and notices of public informational hearings to be provided under sub. (3m) and notices of administrative hearings under sub. (3q). Each notice shall include all of the following information:

SB368-ASA1,26,19 1. The name and address of the applicant.