LRB-4659/2
MGG&RCT:cmh&cjs:km
1999 - 2000 LEGISLATURE
March 8, 2000 - Introduced by Representatives Kedzie, Ainsworth, Reynolds,
Hundertmark, Handrick, Musser, Stone, Kestell, Pettis, Klusman, Urban,
Meyer, Vrakas, Gundrum, Gunderson, Walker, Bock, Kreuser, Powers,
Sykora
and Steinbrink, cosponsored by Senators Cowles, Grobschmidt,
Rude, Clausing, Huelsman, Erpenbach, Roessler, Plache, Drzewiecki,
Farrow, Rosenzweig
and Baumgart. Referred to Committee on Environment.
AB859,1,3 1An Act to amend 23.32 (2) (b); and to create 23.321, 281.17 (10) and 281.98 (3)
2of the statutes; relating to: wetlands mitigation and granting rule-making
3authority.
Analysis by the Legislative Reference Bureau
Under federal law, projects involving the discharge of dredge or fill material
into any body of water, including wetlands, must comply with certain guidelines
contained in regulations promulgated by the federal environmental protection
agency (EPA) in order for a permit to be issued by the U.S. Army Corps of Engineers
(ACE). Under a memorandum of understanding entered into by EPA and ACE
interpreting these guidelines, a project may comply with the guidelines, although it
involves an adverse impact on an existing wetland, if compensatory action is taken,
such as restoring another wetland that has already been degraded. However, before
ACE may issue a permit, the department of natural resources (DNR) must determine
that the project complies with state water quality standards, including those for
wetlands.
Under current law, DNR has no specific authority to allow compensatory
mitigation of wetlands under its statutory authority to promulgate state water
quality standards. The department of transportation (DOT) may engage in
compensatory mitigation of wetlands for highway construction and repair activities
under procedures jointly established by DNR and DOT.
This bill creates a process and requirements for DNR to use in allowing wetland
mitigation. The bill allows DNR to consider wetland mitigation in determining

whether to grant a permit or other approval (approval) for an activity that will have
an adverse affect on the wetland.
Under the bill, a wetland mitigation project is a project that restores, enhances
or creates a wetland to compensate for adverse impacts to other wetlands or that uses
credits from a "wetlands mitigation bank". A wetlands mitigation bank is a system
of accounting for wetland loss and compensation that includes one or more sites
where wetlands are restored, enhanced or created to provide transferable credits to
be subsequently applied to compensate for adverse impacts to other wetlands.
The bill prohibits DNR from considering wetlands mitigation in reviewing
whether to grant a permit or other approval for a project that adversely affects "an
area of special natural resource interest" or a wetland that is in such an area. The
bill defines "an area of special natural resource interest" as being an area that has
significant ecological, cultural, aesthetic, educational, recreational or scientific
values and specifically lists certain areas. The areas listed include Lake Superior,
Lake Michigan, the Mississippi River, the Lower Wisconsin State Riverway, fish and
wildlife refuges and state parks and forests. DNR may not consider wetland
mitigation unless the applicant for the approval demonstrates that all appropriate
and practicable measures will be used to avoid and minimize the adverse impact on
the wetland to be affected.
The bill requires a permit holder or person engaged in mitigation to grant a
conservation easement to DNR to ensure that a restored, enhanced or created
wetland is not destroyed or substantially degraded by subsequent owners.
The bill requires also that DNR initiate negotiations with ACE to establish
guidelines for mitigation projects and banking. The bill specifically authorizes DNR
to impose additional conditions on an approval it issues so that the approval complies
with any guidelines that are established if ACE has not already required such
compliance. Also, the bill specifically prohibits DNR from requiring that a mitigation
project be larger in acreage than the minimum acreage required by the guidelines.
The draft requires that DNR promulgate rules to regulate mitigation projects.
The rules must address several topics, including the comparability in size and
location of the wetland to be improved and the wetland adversely affected and
standards for measuring the success of mitigation projects. The rules must also
establish an expedited decision-making process for granting approvals involving
wetland mitigation. The rules must contain a provision that if the wetland that will
be adversely affected is not located in a floodplain and if the activity for which the
approval is sought does not involve the issuance of a permit required by DNR for a
navigable water, DNR must issue the approval within 60 working days after a
complete application is submitted, unless weather conditions prevent DNR from
doing so. The bill also requires DNR to submit a biennial report to the legislature
regarding the impact of wetland mitigation.
Under the Federal Water Pollution Control Act, a person who applies for a
federal license or permit for an activity that may result in a discharge into water is
required to obtain a state certification that the discharge will comply with water
quality standards. If the state issues the certification, it may include conditions
necessary to ensure compliance with water quality standards. DNR has

promulgated rules for making water quality certification decisions. This bill
prohibits a person from conducting an activity for which DNR denies a water quality
certification required under the Water Pollution Control Act. The bill prohibits also
a person from violating a condition that DNR includes in a water quality certification
required under the Water Pollution Control Act.
Current law provides civil monetary penalties (forfeitures) for violating certain
laws related to water quality. Under this bill, in addition to imposing forfeitures, a
court may require a person who violates these laws, including the prohibitions
created in the bill, to take any action necessary to eliminate or minimize any
environmental damage caused by the person.
For further information see the state and local 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:
AB859, s. 1 1Section 1. 23.32 (2) (b) of the statutes is amended to read:
AB859,3,62 23.32 (2) (b) Mapping priorities, technical methods and standards to be used
3in delineating wetlands and a long-term schedule which will result in completion of
4the mapping effort at the earliest possible date, but not later than July 1, 1984, shall
5be developed by the department in cooperation with those other state agencies
6having mapping, aerial photography and comprehensive planning responsibilities.
AB859, s. 2 7Section 2. 23.321 of the statutes is created to read:
AB859,3,9 823.321 Wetlands; compensatory mitigation. (1) Definitions. In this
9section:
AB859,3,1210 (a) "Area of special natural resource interest" means an area that possesses
11significant ecological, cultural, aesthetic, educational, recreational or scientific
12values, including any of the following:
AB859,3,1413 1. A cold water community, as defined by the department, including a trout
14stream or its tributary or a trout lake.
AB859,3,1515 2. Lake Michigan, Lake Superior or the Mississippi River.
AB859,4,3
13. A wild and scenic river designated under 16 USC 1271 to 1287, a wild river
2designated under s. 30.26, the Lower Wisconsin State Riverway or a scenic urban
3waterway designated under s. 30.275.
AB859,4,74 4. A unique and significant wetland identified in a special area management
5plan, as defined in 16 USC 1453 (17), a special wetland inventory study or advanced
6delineation and identification study under 40 CFR 230.80 or an area designated by
7the U.S. environmental protection agency under 33 USC 1344 (c).
AB859,4,88 5. A calcareous fen.
AB859,4,109 6. A habitat used by state or federally designated threatened or endangered
10species.
AB859,4,1111 7. A state park, forest, trail or recreation area.
AB859,4,1312 8. A state or federal fish and wildlife refuge or fish and wildlife management
13area.
AB859,4,1414 9. A state or federal designated wilderness area.
AB859,4,1515 10. A state natural area designated or dedicated under ss. 23.27 to 23.29.
AB859,4,1616 11. Wild rice waters.
AB859,4,1817 12. Surface waters identified by the department as outstanding or exceptional
18resource waters under s. 281.15.
AB859,4,1919 13. Any other area identified by the department by rule.
AB859,4,2220 (b) "Mitigation project" means the restoration, enhancement or creation of
21wetlands to compensate for adverse impacts to other wetlands. "Mitigation project"
22includes using credits from a wetlands mitigation bank.
AB859,4,2323 (c) "Wetland" has the meaning given in s. 23.32 (1).
AB859,5,224 (d) "Wetlands mitigation bank" means a system of accounting for wetland loss
25and compensation that includes one or more sites where wetlands are restored,

1enhanced or created to provide transferable credits to be subsequently applied to
2compensate for adverse impacts to other wetlands.
AB859,5,43 (e) "Wetland water quality standards" means water quality standards
4promulgated under s. 281.15 (1) that affect wetlands.
AB859,5,55 (f) "Working day" has the meaning given in s. 227.01 (14).
AB859,5,12 6(2) Issuing permits. (a) The department may consider a mitigation project as
7part of an application, in combination with the requirements under par. (b), for
8complying with any wetland water quality standards in determining whether to
9issue a permit for, or to otherwise approve, an activity that affects a wetland under
10ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.47 or 281.49 to 281.85 or ch. 30, 31,
11283, 289, 291, 292, 293, 295 or 299. This subsection does not entitle an applicant to
12a permit or other approval in exchange for conducting a mitigation project.
AB859,5,1613 (b) The department may not consider a mitigation project in reviewing an
14application under par. (a) unless the applicant demonstrates that all appropriate and
15practicable measures will be taken to avoid and minimize adverse impacts on the
16wetland.
AB859,5,2017 (c) The department may not consider a mitigation project in reviewing an
18application under par. (a) for an activity that adversely affects a wetland in an area
19of special natural resource interest or for an activity that adversely affects an area
20of special natural resource interest.
AB859,6,321 (d) If the department determines that the conditions of a permit or other
22authorization issued by the U.S. Army Corps of Engineers for an activity that affects
23a wetland do not meet the requirements of any guidelines established in the
24memorandum of agreement under sub. (4), the department may impose additional
25conditions to ensure that the requirements are met. The department may not

1require that the acreage of a mitigation project considered under par. (a) exceed the
2acreage that is required for the project under the guidelines established in the
3memorandum of agreement under sub. (4).
AB859,6,10 4(2m) Subsequent protection for wetlands. (a) 1. A person who is the holder
5of a permit or other approval that authorizes a mitigation project shall grant a
6conservation easement under s. 700.40 to the department to ensure that a wetland
7that is being restored, enhanced or created will not be destroyed or substantially
8degraded by any subsequent owner of or holder of interest in the property on which
9the wetland is located. The department shall revoke the permit or other approval
10if the holder of the permit or other approval fails to take these measures.
AB859,6,1511 2. A person who is restoring, enhancing or creating a wetland to provide
12transferable credits as part of a wetlands mitigation bank shall grant a conservation
13easement under s. 700.40 to the department, to ensure that the wetland will not be
14destroyed or substantially degraded by any subsequent owner of or holder of interest
15in the property on which the wetland is located.
AB859,6,1716 (b) Notwithstanding par. (a), the department shall modify or release a
17conservation easement granted under par. (a) if all of the following apply:
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