Amendment ASA1-AB547

State administration of wetland permit program. 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. The substitute amendment 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.

Wetland mitigation grant program. Under the authority of current law, and in consultation with the U.S. Army Corps of Engineers (ACE), DNR has created the in lieu fee subprogram as one method by which wetland mitigation may be accomplished. Under this subprogram, payments are made to DNR or another entity for the purposes of improving or preserving wetlands or other water resource features.

This substitute amendment requires DNR to establish a wetland mitigation grant program (mitigation program) using in each fiscal year up to one-third of the moneys received under the in lieu fee subprogram and of the moneys received from surcharge fees charged for each application to proceed under a wetland general permit. Under the mitigation program, nonprofit organizations may apply to DNR on a rolling basis for grants to conduct projects to create, restore, or enhance wetlands on certain DNR lands.

The substitute amendment requires DNR to identify land under its jurisdiction that is appropriate to include in the mitigation program, but limits eligible land to that acquired by the state in whole or in part with funding from the Warren Knowles-Gaylord Nelson stewardship program or the Warren Knowles-Gaylord Nelson stewardship 2000 program (DNR stewardship land). The substitute amendment requires DNR to include in the mitigation program no less than 25 percent of all DNR stewardship land and, with some exceptions, to include land in every watershed located on DNR stewardship land.

The substitute amendment requires DNR to issue a request for proposals within three months after identifying appropriate lands or at the beginning of the next fiscal year, whichever is earlier, and no later than July 1 of each subsequent year. Under the substitute amendment, DNR must select and announce grant recipients at the end of each quarter, as funds are available.

The substitute amendment imposes requirements for what a wetland mitigation grant application must include, such as specifications of the wetland functional values that the project area does not provide or only sparsely provides and those that the proposed project would restore, enhance, or create. If an application is approved, the substitute amendment requires DNR and the grantee to identify all DNR permits that are required in order for the grantee to conduct the project, requires DNR to waive all permit fees for those permits, and limits the timelines for approval of those permits.

The substitute amendment also authorizes DNR to submit a request to ACE that ACE move up all deadlines relating to its review and approval of wetland mitigation project proposals under the in lieu fee subprogram.

The substitute amendment requires DNR to pay out a wetland mitigation grant in three phases, withholding the final payment until the grantee certifies that the project is complete. If the grantee fails to certify that the project is complete by the date indicated for completion in its application, the substitute amendment requires DNR to use the remaining unpaid grant amount to either complete the project or contract with or issue a grant to another nonprofit organization to complete the project, unless DNR agrees to modify the deadline because of unusual or unforeseen circumstances. Under the substitute amendment, an organization that fails to certify completion of a project by the date indicated in its application for completion, or another date agreed to by DNR, is not eligible for a new grant for two grant cycles.

The substitute amendment requires DNR to report to the legislature on the effectiveness of the mitigation program's first five years and any recommended changes.

Property development grants. The substitute amendment also requires DNR to establish a separate grant program under which it makes grants to nonprofit organizations for certain property development activities relating to wetlands affected by a project under a wetland mitigation grant. Property development activities that may be funded under this grant program include those that increase public access to, awareness about, or recreational use of the affected wetland, or that improve habitat in, on, or near the affected wetland. Under the substitute amendment, the property development grant program is funded from the property development and local assistance subprogram of the Warren Knowles-Gaylord Nelson stewardship 2000 program.

The substitute amendment requires an application for a property development grant, though it is separate from the wetland mitigation grant program, to be submitted at the same time as an application for a wetland mitigation grant, requires DNR to make a determination on both grants at the same time, and prohibits DNR from awarding a property development grant unless it also awards a wetland mitigation grant. The substitute amendment also restricts a property development grant to no more than 10 percent of the amount of the wetland mitigation grant and provides that a property development grant may not be paid until the grantee certifies that the project funded by the wetland mitigation grant is complete.

Wetland study council. The substitute amendment creates within DNR a wetland study council, consisting of nine members, appointed for staggered six-year terms by the governor and the secretary of natural resources, representing various interests and expertises, to research and provide recommendations on various issues relating to wetlands.

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

AB547-ASA1,1 Section 1. 15.347 (22) of the statutes is created to read:

AB547-ASA1,5,4 15.347 (22) Wetland study council. (a) There is created in the department of natural resources a wetland study council consisting of the following members, appointed for staggered 6-year terms:

AB547-ASA1,5,6 1. One member who is a representative of a statewide organization representing the business community.

AB547-ASA1,6,2 2. One member who is a representative of a statewide organization representing waterfowl interests.

AB547-ASA1,6,4 3. One member who is a representative of a statewide organization representing real estate and development interests.

AB547-ASA1,6,6 4. One member who is a representative of a statewide organization representing municipal interests.

AB547-ASA1,6,8 5. One member who is a representative of a statewide organization representing rural and agricultural interests.

AB547-ASA1,6,10 6. One member who is a representative of a statewide organization representing an outdoor sporting group with a specific interest in wetlands.

AB547-ASA1,6,11 7. One member who is a statewide wetland delineator.

AB547-ASA1,6,12 8. One member who is a statewide wetland consultant.

AB547-ASA1,6,15 9. One member who is a department of natural resources biologist or hydrologist and who is a wetland expert, appointed by the secretary of natural resources.

AB547-ASA1,6,17 (b) The wetland study council shall research and develop recommendations on all of the following:

AB547-ASA1,6,19 1. The implementation and effectiveness of statewide wetland mitigation programs.

AB547-ASA1,6,24 2. Program elements that would be necessary for the department of natural resources to implement if the department assumes from the federal government the authority to administer the state's own individual and general permit program for the discharge of dredged or fill material into the navigable waters of the state under s. 281.12 (2).

AB547-ASA1,7,4 3. Issues related to the analysis of practicable alternatives that avoid and minimize the adverse impacts of a discharge into a wetland on wetland functional values and that will not result in any other significant adverse environmental consequences.

AB547-ASA1,7,6 4. Storm water management ponds and their potential to serve a role in wetland mitigation.

AB547-ASA1,7,8 5. Statewide incentive programs for creating, restoring, and enhancing wetlands.

AB547-ASA1,7,10 6. Statewide wetland trainings for department of natural resources staff, wetland consultants, and wetland delineators.

AB547-ASA1,7,12 7. The simplification of regulations associated with creating wetlands on farm drainage ditches for the purpose of phosphorus pollution retention.

AB547-ASA1,7,15 8. Ways to improve the in-lieu fee subprogram of the wetland mitigation program, under s. 281.36 (3r) (e), including subcontracting the management of a program to a nonprofit organization.

AB547-ASA1,7,19 9. The possibility of a professional, whose wetland delineation work is assured under the department of natural resources' wetland delineation professional assurance initiative, performing a wetland delineation confirmation under s. 23.321 on behalf of the department.

AB547-ASA1,7,20 10. Any other item related to wetlands at the discretion of the council.

AB547-ASA1,2 Section 2 . 20.370 (9) (bm) of the statutes, as affected by 2017 Wisconsin Act 59, is amended to read:

AB547-ASA1,8,10 20.370 (9) (bm) Wetland restoration — fees; payments. From the general fund, all moneys received as surcharge fees under s. 281.36 (11), all moneys received as 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 the restoration or creation of wetlands, to transfer at the beginning of each fiscal year one-third of the unencumbered balance of moneys in this appropriation account received under the in lieu fee subprogram under s. 281.36 (3r) (e) to the appropriation account under par. (bn), and for any other activities authorized under the in lieu fee subprogram. If the transfer of moneys under this paragraph to the appropriation account under par. (bn) would cause the unencumbered balance in that appropriation account to exceed $10,000,000, the transfer shall be limited to an amount that causes the unencumbered balance in the appropriation account under par. (bn) to be equal to $10,000,000.

AB547-ASA1,3 Section 3 . 20.370 (9) (bn) of the statutes is created to read:

AB547-ASA1,8,14 20.370 (9) (bn) Wetland mitigation grants. All moneys transferred from the appropriation account under par. (bm) for the wetland mitigation grant program under s. 281.37.

AB547-ASA1,4 Section 4 . 23.0917 (4) (c) 3. of the statutes is amended to read:

AB547-ASA1,8,16 23.0917 (4) (c) 3. Grants under s. ss. 23.098 and 23.099.

AB547-ASA1,5 Section 5 . 23.099 of the statutes is created to read:

AB547-ASA1,8,19 23.099 Grants for property development relating to wetland mitigation. (1) In this section:

AB547-ASA1,8,21 (a) “Department stewardship land” has the meaning given under s. 281.37 (1) (a).

AB547-ASA1,8,24 (b) “Nonprofit organization" means an organization that is described in section 501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

AB547-ASA1,9,8 (2) The department shall establish a program to make grants from the appropriation under s. 20.866 (2) (ta) to nonprofit organizations for property development activities relating to wetlands created, restored, or enhanced under a wetland mitigation grant under s. 281.37 on department stewardship land. Property development activities for which a grant under this section may be awarded include those that increase public access to, awareness about, or recreational use of the new, restored, or enhanced wetland, or that improve habitat in, on, or near, the new, restored, or enhanced wetland.

AB547-ASA1,9,13 (3) A nonprofit organization that applies for a grant under this section shall submit the application at the same time that it submits an application for a grant under s. 281.37. The department shall make its determination with respect to both grants at the same time, and may only award a grant under this section if it also awards a grant under s. 281.37.

AB547-ASA1,9,17 (4) A grant awarded under this section may not exceed 10 percent of the amount of the related grant awarded under s. 281.37. The department may not issue the grant funding under this section to the grantee until the grantee has certified that the project funded by the grant under s. 281.37 is complete.

AB547-ASA1,6 Section 6 . 23.321 (1) of the statutes is renumbered 23.321 (1) (intro.) and amended to read:

AB547-ASA1,9,20 23.321 (1) Definition. (intro.) In this section, “wetland":

AB547-ASA1,9,21 (b) “Wetland” has the meaning given in s. 23.32 (1).

AB547-ASA1,7 Section 7 . 23.321 (1) (am) of the statutes is created to read:

AB547-ASA1,9,24 23.321 (1) (am) “Nonfederal wetland” has the meaning given in s. 281.36 (1) (br).

AB547-ASA1,8 Section 8 . 23.321 (2) (d) of the statutes is created to read:

AB547-ASA1,10,3 23.321 (2) (d) 1. In this paragraph, “qualified 3rd person” means an individual who has completed basic and advanced wetland training and has a minimum of one year of field experience in wetland delineation.

AB547-ASA1,10,17 2. A wetland confirmation that consists of a written statement, based upon the department's review of the boundaries of a wetland as delineated by a qualified 3rd person and not based upon an on-site inspection of the land by the department, of whether the department concurs with the delineation. The delineation prepared by the qualified 3rd person shall include the exact location and boundaries of the wetland. The department shall concur with the boundaries of a wetland delineated by a qualified 3rd person unless the department determines that the location and boundaries of the wetland identified in the delineation are not accurate based on maps, aerial photographs, surveys, wetland delineations, or hydrophitic soil conditions. If the department concurs with the boundaries of a wetland delineated by a qualified 3rd person, the department's statement under this paragraph shall also include the exact location and boundaries of the wetland. A wetland confirmation under this paragraph is available only with respect to a nonfederal wetland.

AB547-ASA1,9 Section 9 . 23.321 (4) (a) 3. of the statutes is amended to read:

AB547-ASA1,10,21 23.321 (4) (a) 3. Provide a wetland confirmation not later than 60 days after a person files a request, in the manner and form required by the department, for a wetland confirmation under sub. (2) (c).

AB547-ASA1,10 Section 10 . 23.321 (4) (a) 4. of the statutes is created to read:

AB547-ASA1,10,25 23.321 (4) (a) 4. Provide a wetland confirmation not later than 15 days after a person files a request, in the manner and form required by the department, for a wetland confirmation under sub. (2) (d).

AB547-ASA1,11 Section 11. 23.321 (5) of the statutes is renumbered 23.321 (5) (a) and amended to read:

AB547-ASA1,11,6 23.321 (5) (a) A Except as provided in par. (b), a wetland identification provided by the department under sub. (2) (b) and a wetland confirmation provided by the department under sub. (2) (c) remain effective for 5 years from the date provided by the department.

AB547-ASA1,12 Section 12 . 23.321 (5) (b) of the statutes is created to read:

AB547-ASA1,11,11 23.321 (5) (b) 1. A wetland identification provided by the department under sub. (2) (b) and a wetland confirmation provided by the department under sub. (2) (c) or (d) remain effective for 15 years from the date provided by the department if all of the following conditions are met:

AB547-ASA1,11,12 a. The wetland is a nonfederal wetland.

AB547-ASA1,11,15 b. The parcel of land is subject to a storm water management zoning ordinance enacted under s. 59.693, 60.627, 61.354, or 62.234 or a storm water discharge permit issued under s. 283.33.

AB547-ASA1,11,18 2. The department may not invalidate or amend an existing wetland delineation, or require a new wetland delineation, for a parcel to which subd. 1. applies until the wetland identification or confirmation expires.

AB547-ASA1,13 Section 13 . 281.12 (2) of the statutes is created to read:

AB547-ASA1,12,2 281.12 (2) The department, on behalf of and at the direction of the governor, may submit an application to the federal environmental protection agency under 33 USC 1344 (g) seeking the delegation of authority to this state to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters of this state. If the federal environmental protection agency delegates this authority to this state, the department may assume that authority.

AB547-ASA1,14 Section 14. 281.36 (3b) (b) of the statutes, as affected by 2017 Wisconsin Acts 58 and 115, is amended to read:

AB547-ASA1,12,13 281.36 (3b) (b) No person may discharge dredged material or fill material into a wetland unless the discharge is authorized by a wetland general permit or individual permit issued by the department under this section or the discharge is exempt under sub. (4), (4m) (a), (4n), or (4r). No person may violate any condition contained in a wetland general or individual permit issued by the department under this section. The department may not issue a wetland general or individual permit under this section unless it determines that the discharge authorized pursuant to the wetland general or individual permit will comply with all applicable water quality standards.

AB547-ASA1,15 Section 15. 281.36 (3m) (a) of the statutes, as affected by 2017 Wisconsin Acts 58 and 115, is amended to read:

AB547-ASA1,12,25 281.36 (3m) (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), (4m) (a), (4n), or (4r). Before submitting the application, the department shall hold a meeting with the applicant to discuss the details of the proposed discharge and the requirements for submitting the application and for delineating the wetland. 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).

AB547-ASA1,16 Section 16. 281.36 (3n) (d) 1. of the statutes, as affected by 2017 Wisconsin Act 118, is amended to read:

AB547-ASA1,13,8 281.36 (3n) (d) 1. Except as provided in subd. 2., the department shall require mitigation under the program established under sub. (3r) for wetland individual permits it issues under this subsection and for a discharge that is exempt from permitting requirements under sub. (4n) (c) that affects more than 1.5 acres of wetland. This subsection does not entitle an applicant to a wetland individual permit or any other approval in exchange for conducting mitigation.

AB547-ASA1,17 Section 17 . 281.36 (3r) (a) (intro.) of the statutes is amended to read:

AB547-ASA1,13,16 281.36 (3r) (a) (intro.) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows and, with respect to a discharge that is exempt from permitting requirements under sub. (4n) (c) that affects more than 1.5 acres of wetland, the portion of the affected wetland that exceeds 1.5 acres. Under the mitigation program, subject to par. (am), the department shall allow mitigation to be accomplished by any of the following methods:

AB547-ASA1,18 Section 18 . 281.36 (3r) (a) 4. of the statutes is repealed.

AB547-ASA1,19 Section 19 . 281.36 (3r) (am) of the statutes is created to read:

AB547-ASA1,13,23 281.36 (3r) (am) For a discharge that is exempt from permitting requirements under sub. (4n) (c), any off-site mitigation, including any mitigation conducted by a mitigation bank or under the in-lieu fee program, shall be completed within the same compensation search area, as defined by the department by rule, as the discharge.

AB547-ASA1,20 Section 20. 281.36 (3s) of the statutes is repealed.

AB547-ASA1,21 Section 21 . 281.36 (4) (title) of the statutes is amended to read:

AB547-ASA1,14,1 281.36 (4) (title) Exemptions ; certain activities.

AB547-ASA1,22 Section 22 . 281.36 (4n) of the statutes is created to read:

AB547-ASA1,14,4 281.36 (4n) Exemptions; certain nonfederal wetlands and artificial wetlands. (a) In this subsection:

AB547-ASA1,14,9 1. “Artificial wetland" means a landscape feature where hydrophitic vegetation may be present as a result of human modification to the landscape or hydrology and for which the department has no definitive evidence showing a prior wetland or stream history that existed before August 1, 1991, but does not include any of the following:

AB547-ASA1,14,11 a. A wetland that serves as a fish spawning area or a passage to a fish spawning area.

AB547-ASA1,14,12 b. A wetland created as a result of a mitigation requirement under sub. (3r).