Amendment ASA1-SB368

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.

SB368-ASA1,26,21 2. A brief description of the discharge that requires the permit and the project that includes the discharge.

SB368-ASA1,26,23 3. For a notice of a public informational hearing, the time, date, and location of the hearing.

SB368-ASA1,27,2 4. For a notice of pending application and a notice of a public informational hearing, a brief, precise, easily understandable, plain-language description of the discharge and information indicating where the pending application may be viewed on the department's Internet Web site.

SB368-ASA1,27,4 5. For a notice of complete application and a notice of a public informational hearing, a statement of the tentative determination of the department on the permit.

SB368-ASA1,27,8 6. For a notice of complete application and a notice of public informational hearing, a brief description of the procedures for the formulation of final determinations, including a description of the comment period required under sub. (3m) (j).

SB368-ASA1,27,16 (c) For the purpose of determining the date on which notice is provided under this subsection, the date of the notice shall be the date on which the department first publishes the notice on its Internet Web site, unless the department delegates to the applicant under par. (d) the requirement to provide notice. If the department delegates to the applicant the requirement to provide notice, the date of the notice shall be the date on which the department first publishes the notice on its Internet Web site or 10 days after the date on which the department receives satisfactory proof of publication of a class 1 notice from the applicant, whichever is later.

SB368-ASA1,27,19 (d) The department may delegate the department's requirement to provide notice under sub. (3m) in the manner specified in par. (a) 1. and 2. by doing any of the following:

SB368-ASA1,27,21 1. Requiring that the applicant for the permit provide by publication, mailing, or other distribution one or more of the notices.

SB368-ASA1,27,23 2. Requiring that the applicant for the permit pay for the publication, mailing, or any other distribution costs of providing one or more of the notices.

SB368-ASA1, s. 88 Section 88. 281.36 (3q) of the statutes is created to read:

SB368-ASA1,28,4 281.36 (3q) Administrative and judicial review. (a) Definition. In this subsection, "applicant" means any person applying for a wetland individual permit under this section or any person who has been issued such a permit under this section.

SB368-ASA1,28,7 (b) Request for administrative review. Any interested person may file a petition with the department for administrative review within 30 days after any of the following decisions given by the department:

SB368-ASA1,28,9 1. The issuance, denial, or modification of any wetland individual permit issued under this section

SB368-ASA1,28,11 2. The imposition of, or failure to impose, a condition on any wetland individual permit issued under this section.

SB368-ASA1,28,14 (c) Content of the petition. If the petitioner is not the applicant, the petition shall describe the petitioner's objection to the wetland individual permit and shall contain all of the following:

SB368-ASA1,28,17 1. A description of the objection that is sufficiently specific to allow the department to determine which provisions of this section may be violated if the proposed discharge under the wetland individual permit is allowed to proceed.

SB368-ASA1,28,20 2. A description of the facts supporting the petition that is sufficiently specific to determine how the petitioner believes the discharge, as proposed, may result in a violation of the provisions of this section.

SB368-ASA1,28,22 3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner's objection.

SB368-ASA1,29,2 (d) Stays. 1. The discharge shall be stayed pending an administrative hearing under this subsection if the petition contains a request for the stay showing that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment.

SB368-ASA1,29,5 2. If a stay is requested under subd. 1., the stay shall be in effect until either the department denies the request for an administrative hearing or the hearing examiner determines that the stay is not necessary.

SB368-ASA1,29,10 (e) Filings. The petitioner shall file a copy of the petition with the department. If the petitioner is not the applicant, the petitioner shall simultaneously provide a copy of the petition to the applicant. The applicant may file a response to the petition with the department. If the applicant files a response under this paragraph, it shall be filed within 15 days after the petition is filed.

SB368-ASA1,29,14 (f) Action on petition. The department shall grant or deny the petition within 30 days after the petition is filed. The failure of the department to dispose of the petition within this 30-day period is a denial. The department shall deny the petition if any of the following applies:

SB368-ASA1,29,16 1. The petitioner is not the applicant, and the petition does not comply with the requirements of par. (c).

SB368-ASA1,29,21 2. The objection contained in the petition is not substantive. The department shall determine that an objection is substantive if the supporting facts contained in the objection appear to be substantially true and raise reasonable grounds to believe that the provisions of this section may be violated if the activity or project is undertaken.

SB368-ASA1,29,23 3. If the department denies the petition, the department shall send the petitioner the denial in writing, stating the reasons for the denial.

SB368-ASA1,30,2 4. If the department grants a petition under this subsection, the department shall refer the matter to the division of hearings and appeals in the department of administration within 15 days after granting the petition unless the petitioner and the applicant agree to an extension.

SB368-ASA1,30,4 (g) Administrative hearing. 1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.

SB368-ASA1,30,11 2. If a stay under par. (d) 1. is in effect, the hearing examiner shall, within 30 days after receipt of the referral under par. (f) 4., determine whether continuation of the stay is necessary to prevent significant adverse impacts or irreversible harm to the environment pending completion of the administrative hearing. The hearing examiner shall make the determination based on the request under par. (d) 1., any response from the applicant under par. (e), and any testimony at a public hearing or any public comments. The determination shall be made without a hearing.

SB368-ASA1,30,17 3. An administrative hearing under this subsection shall be completed within 90 days after receipt of the referral of the petition under par. (f) 4., unless all parties agree to an extension of that period. In addition, a hearing examiner may grant a one-time extension for the completion of the hearing of up to 60 days on the motion of any party and a showing of good cause demonstrating extraordinary circumstances justifying an extension.

SB368-ASA1,30,20 4. Notwithstanding s. 227.44 (1), the department shall provide a notice of the administrative hearing at least 30 days before the date of the hearing to all of the following:

SB368-ASA1,30,21 a. The applicant.

SB368-ASA1,30,22 b. Each petitioner, if other than the applicant.

SB368-ASA1,30,23 c. Any other persons required to receive notice as provided under sub. (3p).

SB368-ASA1,30,25 5. In an administrative hearing under this subsection, the petitioner shall proceed first with the presentation of evidence and shall have the burden of proof.

SB368-ASA1,31,3 (h) Judicial review. 1. Any person whose substantial interest is affected by a decision of the department under par. (b) 1. or 2. may commence an action in circuit court to review that decision.

SB368-ASA1,31,5 2. Any party aggrieved by a decision of the hearing examiner under par. (g) may commence an action in circuit court to review that decision.

SB368-ASA1, s. 89 Section 89. 281.36 (3r) of the statutes is created to read:

SB368-ASA1,31,10 281.36 (3r) Mitigation; in lieu fee subprogram. (a) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows mitigation to be accomplished by any of the following methods:

SB368-ASA1,31,11 1. Purchasing credits from a mitigation bank located in this state.

SB368-ASA1,31,13 2. Participating in the in lieu fee subprogram, if such a subprogram is established under par. (e).

SB368-ASA1,31,15 3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.

SB368-ASA1,31,18 (b) Under the mitigation program, mitigation as specified in par. (a) 1. and participation in the in lieu fee subprogram, if established under par. (a) 2. shall be the preferred types of mitigation.

SB368-ASA1,31,22 (c) The department shall establish a system of service areas for the mitigation banks under the mitigation program that is geographically based on the locations of the major watersheds in the state. The system shall be consistent with federal regulations.

SB368-ASA1,32,5 (cm) Before entering into an agreement with a sponsor of a mitigation bank to establish such a bank or before otherwise approving a mitigation bank, the department shall provide written notice that a mitigation bank may be established. The notice shall be given to each city, village, town, and county in which each proposed mitigation bank site will be located. Each city, village, town, and county receiving the notice shall be given an opportunity to submit comments regarding the establishment of the mitigation bank. The notice shall contain all of the following information:

SB368-ASA1,32,6 1. The name of the sponsor of the proposed mitigation bank.

SB368-ASA1,32,7 2. A brief description of the mitigation bank and all of its bank sites.

SB368-ASA1,32,9 3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.

SB368-ASA1,32,10 4. An address to which any comments shall be submitted.

SB368-ASA1,32,17 (d) The department shall establish under the mitigation program mitigation ratios that are consistent with the federal regulations that apply to mitigation and mitigation banks but the minimum ratio shall be at least 1.2 acres for each acre affected by the discharge. The ratios shall include incentives for mitigation that will be located in the same watershed in which the discharge will occur or that will replace the wetland types and functions that are most needed in the watershed in which the discharge will occur.

SB368-ASA1,33,3 (e) As part of the mitigation program established under par. (a), the department may establish an in lieu fee subprogram, in consultation with the army corps of engineers, under which payments are made to the department or another entity for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the program shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community. The subprogram shall be consistent with federal regulations.

SB368-ASA1, s. 90 Section 90. 281.36 (4) (intro.) of the statutes is amended to read:

SB368-ASA1,33,7 281.36 (4) Exemptions. (intro.) Except as provided in sub. (5), the certification permitting requirement under sub. (2) (3b) does not apply to any discharge that is the result of any of the following activities:

SB368-ASA1, s. 91 Section 91. 281.36 (4) (b) of the statutes is amended to read: