SB368: Bill Text

LRB-2803/1

MGG:wlj:md

2011 - 2012 LEGISLATURE

2011 Senate BILL 368

January 6, 2012 - Introduced by Senators Kedzie and Schultz, cosponsored by Representatives Mursau, Rivard, Brooks, Honadel and Stone. Referred to Committee on Natural Resources and Environment.

SB368,2,21 An Act to repeal 23.321 (2) (a), 23.321 (3) (a), 23.321 (4) (a) 1., 30.28 (2) (title), 30.28 (2) (a) (intro.), 30.28 (2) (a) 1., 30.28 (2) (a) 2., 30.28 (2) (a) 3., 30.28 (2m) (c), 31.39 (2m) (c), 281.22 (1), 281.22 (2) (c), 281.22 (4), 281.36 (1) (am), 281.36 (1) (bg), 281.36 (1) (c) and (cm), 281.36 (1) (cr), 281.36 (1m), 281.36 (2) (title), 281.36 (2) (b), 281.36 (7), 281.36 (8) (title), 281.36 (8) (a), 281.36 (8) (b), 281.36 (8) (bn) 2., 281.36 (8) (c), 281.36 (8) (d), 281.36 (8) (e), 281.36 (9) (am) to (c), 281.36 (10) (b), 281.37 (title), 281.37 (1) (intro.), 281.37 (1) (a), 281.37 (1) (e), 281.37 (1) (f), 281.37 (2), 281.37 (3) (g), 281.37 (3) (j), 281.37 (3m) and 281.37 (4); to renumber 30.28 (2) (b) 1., 30.28 (2) (b) 2., 281.22 (2) (title), 281.22 (2m) (title) and 281.22 (2m) (a) 2.; to renumber and amend 30.28 (1), 281.22 (title), 281.22 (2) (a), 281.22 (2) (b), 281.22 (2) (d), 281.22 (2m) (a) (intro.), 281.22 (2m) (a) 1., 281.22 (2m) (b), 281.22 (3), 281.36 (2) (a), 281.36 (3), 281.36 (8) (bn) 1., 281.37 (1) (b), 281.37 (1) (d), 281.37 (2m), 281.37 (3) (intro.), 281.37 (3) (a), 281.37 (3) (b), 281.37 (3) (c), 281.37 (3) (d), 281.37 (3) (e), 281.37 (3) (f), 281.37 (3) (h), 281.37 (3) (i) and 281.37 (5); to consolidate, renumber and amend 281.36 (10) (intro.) and (a); to amend 20.370 (4) (bi), 23.321 (title), 30.025 (1b) (b), 30.03 (4) (a), 30.2022 (2), 30.207 (7) (a), 30.28 (title), 30.28 (2m) (a), 30.28 (2m) (am), 30.28 (2m) (b), 30.28 (2m) (d), 30.28 (2r) (a) (intro.), 30.28 (2r) (a) 1., 30.28 (2r) (b), 281.165 (4) (a) 1m., 281.36 (4) (intro.), 281.36 (4) (b), 281.36 (4) (e) 1., 281.36 (4) (e) 2., 281.36 (4) (e) 3., 281.36 (5) (intro.), 281.36 (5) (a), 281.36 (5) (b), 281.36 (6) (a) 1., 281.36 (9) (a) (intro.), 281.36 (9) (a) 1., 281.36 (9) (a) 2., 281.36 (9) (a) 3., 281.98 (1) and 814.04 (intro.); to repeal and recreate 281.36 (title); and to create 20.370 (4) (bm), 23.321 (1) (title), 23.321 (2) (title), 23.321 (2m) (title), 23.321 (3) (title), 23.321 (3m), 23.321 (4) (title), 23.321 (5) (title), 23.321 (6) (title), 30.28 (1) (a), 30.28 (1) (b), 30.28 (1m), 227.01 (13) (ru), 281.17 (10) (c), 281.36 (1) (bd), 281.36 (1) (bj), 281.36 (1) (cp), 281.36 (3b) (title), 281.36 (3b) (a), 281.36 (3g) (title), 281.36 (3g) (a), 281.36 (3g) (c), 281.36 (3g) (d), 281.36 (3g) (e), 281.36 (3g) (f), 281.36 (3g) (fg), 281.36 (3g) (fm), 281.36 (3g) (fr), 281.36 (3g) (g), 281.36 (3g) (h), 281.36 (3g) (i), 281.36 (3m), 281.36 (3n), 281.36 (3p), 281.36 (3r), 281.36 (9) (d) and (e), 281.36 (11), 281.36 (12) (a), 281.36 (12) (b), 281.36 (13) and 281.36 (14) of the statutes; relating to: permits for discharges into wetlands; wetland mitigation; wetland mapping and delineation; fees for permits and other authorizations or determinations by the Department of Natural Resources relating to structures, deposits, and other activities in or near navigable waters; making appropriations; and providing penalties.

Analysis by the Legislative Reference Bureau

Wetland permitting and mitigation

Under current law, there are two permitting procedures for discharging dredged or fill material into a wetland depending on whether the wetland is subject to federal jurisdiction. Under federal law, activities involving the discharge of dredged or fill material into wetlands subject to federal jurisdiction (federal wetlands) must comply with certain guidelines contained in regulations promulgated by the U.S. Army Corps of Engineers (ACE). Wetlands that are exempt from federal jurisdiction are those that are nonnavigable and that are isolated, intrastate wetlands. Current state law regulates discharges in these wetlands (nonfederal wetlands).

Current law makes a distinction between wetlands that are in, or that are in proximity to, an area of special natural resource interest (ASNRI) wetlands and those wetlands that are outside these areas. Current law defines ASNRI as being an area that has significant ecological, cultural, aesthetic, educational, recreational, or scientific value and specifically lists certain areas.

Under current law, a discharge into a federal or nonfederal wetland will be authorized under an individual or general water quality certification only if the discharge complies with all of the water quality standards that apply to wetlands. These standards are promulgated as rules by the Department of Natural Resources (DNR) and require that various functional values of wetlands be protected from adverse impacts. These functional values include providing protection from flooding, recharging groundwater, and providing habitat for wildlife.

Under current law, before ACE may issue a federal permit applicable to a federal wetland, or authorize an activity pursuant to a general federal permit, DNR must issue a water quality certification. For a nonfederal wetland, the discharge must be authorized by a water quality certification issued by DNR but no federal permit is required. For a nonfederal wetland, the discharge may be authorized by an individual certification or a general certification. Under current law, DNR may issue a general water quality certification for types of discharges that are similar in nature and will cause minimal adverse environmental effects. Under current law, DNR must issue general water quality certifications that are consistent with all of the general permits issued under federal law.

Under rules promulgated by DNR, in order for DNR to issue an individual wetland water quality certification DNR must first find that no practicable alternative exists which would avoid causing adverse impacts to the wetland and that all practicable measures will be taken to minimize the adverse impacts to the functional value of the affected wetlands. DNR then considers any proposed mitigation and various other factors to determine whether there will be an adverse impact to wetland functional values or to water quality that is significant or other environmental consequences that are significant. The factors used in this step of the analysis include whether the project is wetland dependent, consideration of any practicable alternatives for the project, potential impacts to ASNRI wetlands, and other cumulative and potential secondary impacts. If DNR finds that there will be no significant adverse impacts or other significant environmental consequences, DNR must find that the project complies with wetland quality standards and must issue the wetland water quality certification. For certain projects that are wetland dependent, that involve impacts to not more that 0.10 acres, or that are not a wetland that merits special consideration, DNR may limit the scope of the analysis of practicable alternatives.

Under current law, DNR is authorized, but is not required, to consider mitigation in determining whether to issue a water quality certification. Under current law, wetland mitigation consists of a project that restores, enhances, or creates (improves) a wetland in order to offset the adverse impacts to other wetlands or a project that involves the purchase of credits from a wetlands mitigation bank. A wetlands mitigation bank is a system of accounting for wetland loss that includes one or more sites where wetlands are improved to provide transferable credits to be subsequently applied to offset adverse impact to other wetlands. Mitigation is based on a ratio of acres improved compared to the number of acres that will suffer an adverse impact.

Current law requires that the ratio of acres for purposes of mitigation be 1.5 acres of improved wetlands for each acre that will suffer an adverse impact, with a limited exception allowing the ratio to be one acre to one acre. Current law prohibits DNR from considering wetland mitigation in deciding whether to authorize an activity that would adversely affect an ASNRI wetland or an ASNRI in general. Current law requires that mitigation occur within one-half mile of the wetland that will suffer an impact unless DNR determines that it is not practicable or ecologically preferable that the mitigation occur within the one-half mile limitation.

This bill makes various changes to the current law described above. These changes include the following:

1. The bill substitutes the term "wetland permit" for "water quality certification," and specifies that the issuance of a wetland permit by DNR takes the place of a water quality certification required by federal law.

2. The bill requires that DNR issue certain wetland general permits (project permits) that are in addition to the required general certifications under current law. These include general permits for discharges that are necessary for the treatment or disposal of hazardous waste or toxic pollutants if not more than two acres of wetlands are affected, and discharges for commercial, residential, or agricultural purposes if not more than 10,000 square feet of wetland are affected. The bill authorizes DNR to issue additional wetland general permits. The bill authorizes DNR to establish different requirements, conditions, and exceptions in general permits to ensure that the discharges will cause only minimal adverse environmental effects. The bill also authorizes DNR to prohibit discharges into certain types of wetlands identified by DNR. These include coastal plain marshes and calcareous fens.

3. The bill creates requirements for giving public notice of DNR's intent to issue general permits.

4. The bill establishes a procedure for obtaining authorization to proceed under a wetland general permit that is similar to the procedure for obtaining authorization under general permits that authorize structures and other activities in or near general waters. Under this procedure, a person must file an application to proceed under the general permit not less than 30 days before commencing the discharge. If, within 30 days after the application, DNR does not inform the applicant that a wetland individual permit will be required, the discharge is considered to be authorized under the wetland general permit. The bill authorizes DNR to require a person to apply and obtain a wetland individual permit if DNR determines 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. Under the bill, a general permit, other than a project permit, may include a waiver of the requirement that specific authorization be obtained for a wetland discharge.

5. The bill changes the standards for reviewing applications for wetland individual permits.

Under the bill, DNR reviews the practicable alternatives presented in the application for the wetland individual permit. DNR must limit its review of these alternatives to those that are located at the site of the discharge and those adjacent to the site if the applicant has demonstrated that the proposed project that will cause the discharge will have a demonstrable economic benefit, that the proposed project is necessary for the expansion of an existing industrial or commercial facility, or that the proposed project will occur in an existing industrial park. Under the bill, the factors to be used in the review include direct impacts, potential secondary impacts, certain cumulative impacts, impacts from proposed mitigation, and the net positive or negative environmental impact of the project. Under the bill, DNR must find that the project complies with wetland quality standards if DNR determines that the proposed project represents the least environmentally damaging practicable alternative, all practicable measures to minimize the adverse impact to wetland functional values will be taken, and the discharge will not result in significant adverse impacts to wetland functional values or to water quality or in any other significant adverse environmental consequences. Upon making such a finding, DNR is authorized, but is not required, to issue a wetland individual permit.

6. The bill creates specific procedures and time limits for issuing wetland individual permits. Under the bill, DNR must hold a meeting with the applicant to discuss the details of the proposed discharge before the application is actually submitted. DNR must then review an application and within 30 days after submission shall determine either that the application is complete or that additional information is needed. The applicant may include in the application a request for a public informational hearing. If the application is incomplete, DNR may make only one additional request for information. Upon receipt of the information, DNR has ten days to notify the applicant whether the application is complete. The date on which the 30-day or ten-day notice is or should be sent triggers the time limits for the public hearing process and for receiving public comments. Under the bill, the term used for such a date that triggers the time limits is "date of closure." DNR may ask for information to supplement the one-time request for information, but such a request may not affect the date of closure.

Within 15 days after the date of closure, DNR must provide notice of the application to interested members of the public. If the application does not already contain a request for a public informational hearing, any person may request such a hearing. DNR on its own may decide to hold a hearing if it determines that there is significant public interest. The bill authorizes any person to submit public comments in addition to any public hearing. Under the bill, if no hearing is held, DNR must render a decision on the application within 30 days after the period for public comment has ended. If a hearing is held, the period for public comment ends ten days after the date the hearing is completed, and DNR must render its decision within 20 days after the period for public comment ends.

The bill also creates requirements for giving public notice of pending applications and informational hearings.

7. The bill requires that mitigation be performed under each wetland individual permit that DNR issues, and removes the restriction that mitigation may not be considered in issuing permits for discharges into ASNRI wetlands or into ASNRI in general. Mitigation may be accomplished by completing a mitigation project within the same watershed or within one-half mile of the discharge site or by participating in the in lieu fee subprogram, if DNR establishes such a subprogram. The bill authorizes DNR to create the in lieu fee subprogram, in consultation with ACE. Under the subprogram, payments would be made to DNR or another entity for the purposes of improving or preserving wetlands or other water resource features. Under the subprogram, a wetland that benefits from the subprogram must be open to the public for hunting, fishing, trapping, cross-country skiing, and hiking. The in lieu fee subprogram must be consistent with federal regulations that apply to such a subprogram.

8. The bill increases the fee for a wetland individual permit. The bill also creates a fee for an application to proceed under a wetland general permit. Under current law, there is no such application fee to proceed under a general water quality certification.

9. The bill creates a surcharge that applies to certain applications to proceed under wetland general permits. These surcharge fees are to be used to create and restore wetlands and are subject to the public-access requirement for hunting and other activities as described above.

Other provisions

The bill makes changes relating to fees paid by persons submitting applications for individual permits to place structures or conduct other activities in or near navigable waters. Under current law, the amount of the fee for a permit relating to navigable waters is based on the estimated time DNR will spend reviewing and investigating the application and making determinations on the application. For an application to proceed under a general permit, there is no fee. This bill imposes a set fee for both types of applications.

The bill authorizes DNR to charge fees for identifying ordinary high-water marks, for making determinations of navigability, and for other determinations related to issuing permits for structures and activities in navigable waters.

Finally, the bill eliminates the requirement under current law that DNR review wetland maps and the accompanying fee.

For further information see the state 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:

SB368, s. 1 Section 1. 20.370 (4) (bi) of the statutes is amended to read:

SB368,7,7 20.370 (4) (bi) Water regulation and zoning — fees. From the general fund, all moneys received under ss. 23.32 (3), 23.321, 30.28, 31.39, and 281.22 281.36 (12) for activities relating to permits, contracts, authorizations, and other approvals issued under s. 281.36 and chs. 30 and 31, for activities relating to water quality standards under subch. II of ch. 281, and for wetland mapping under s. 23.32 and wetlands services under s. 23.321.

SB368, s. 2 Section 2. 20.370 (4) (bm) of the statutes is created to read:

SB368,7,13 20.370 (4) (bm) Wetland restoration — fees; payments. From the general fund, all moneys received as surcharge fees under s. 281.36 (11) and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for the restoration or creation of wetlands and for any other activities authorized under the in lieu fee subprogram.

SB368, s. 3 Section 3. 23.321 (title) of the statutes is amended to read:

SB368,7,15 23.321 (title) Wetland map review, identification, and confirmation.

SB368, s. 4 Section 4. 23.321 (1) (title) of the statutes is created to read:

SB368,7,17 23.321 (1) (title) Definition.

SB368, s. 5 Section 5. 23.321 (2) (title) of the statutes is created to read:

SB368,7,19 23.321 (2) (title) Types of services.

SB368, s. 6 Section 6. 23.321 (2) (a) of the statutes is repealed.

SB368, s. 7 Section 7. 23.321 (2m) (title) of the statutes is created to read:

SB368,8,1 23.321 (2m) (title) Memorandum of agreement.

SB368, s. 8 Section 8. 23.321 (3) (title) of the statutes is created to read:

SB368,8,3 23.321 (3) (title) Fees; generally.