SB368: Bill Text

SB368,21,11 281.36 (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, s. 80 Section 80. 281.36 (3g) (fr) of the statutes is created to read:

SB368,21,15 281.36 (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, s. 81 Section 81. 281.36 (3g) (g) of the statutes is created to read:

SB368,21,23 281.36 (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.

SB368,22,2 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).

SB368,22,9 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, s. 82 Section 82. 281.36 (3g) (h) of the statutes is created to read:

SB368,23,2 281.36 (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 total 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) 1. 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.

SB368,23,9 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.

SB368,23,13 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.

SB368,23,18 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.

SB368,23,20 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.

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

SB368,24,4 281.36 (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, s. 84 Section 84. 281.36 (3m) of the statutes is created to read:

SB368,24,15 281.36 (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). 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) 1.

SB368,24,20 (b) Analysis of practicable alternatives. An applicant shall include in an application submitted under par. (a) an analysis of the practicable alternatives that will avoid and minimize the adverse impacts of the discharge on wetland functional values and that will not result in any other significant adverse environmental consequences.

SB368,25,3 (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.

SB368,25,15 (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.

SB368,25,19 (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.

SB368,25,23 (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.

SB368,26,3 (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.

SB368,26,8 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.

SB368,26,15 (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.

SB368,26,24 (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.

SB368,27,8 (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.

SB368,27,10 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, s. 85 Section 85. 281.36 (3n) of the statutes is created to read:

SB368,27,24 281.36 (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 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 causing the discharge will result in a demonstrable economic benefit, that the proposed project is necessary for the expansion of an existing industrial or commercial 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.

SB368,28,3 (b) Factors used in review. In its review under par. (a), the department shall consider all of the following factors when it assesses the impacts to wetland functional values:

SB368,28,4 1. The direct impacts of the proposed project to wetland functional values.

SB368,28,7 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.

SB368,28,9 3. Potential secondary impacts of the proposed project to wetland functional values.

SB368,28,11 4. The impact on functional values resulting from the mitigation that is required under sub. (3r).

SB368,28,12 5. The net positive or negative environmental impact of the proposed project.

SB368,28,16 (c) 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 apply:

SB368,28,19 1. The proposed project represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

SB368,28,21 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

SB368,28,24 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.

SB368,29,3 (d) Mitigation required. The department shall require mitigation under the program established under sub. (3r) for wetland individual permits it issues under this subsection.

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

SB368,29,8 281.36 (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). The procedures shall require all of the following:

SB368,29,9 1. That the notice be published as a class 1 notice under ch. 985.

SB368,29,11 2. That the notice be mailed to any person or group upon request of the person or group.

SB368,29,12 3. That the notice be published on the department's Internet Web site.

SB368,29,15 (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). Each notice shall include all of the following information:

SB368,29,16 1. The name and address of the applicant.

SB368,29,18 2. A brief description of the discharge that requires the permit and the project that includes the discharge.

SB368,29,20 3. For a notice of a public informational hearing, the time, date, and location of the hearing.

SB368,29,24 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.

SB368,30,2 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.

SB368,30,6 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).

SB368,30,14 (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.

SB368,30,17 (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:

SB368,30,19 1. Requiring that the applicant for the permit provide by publication, mailing, or other distribution one or more of the notices.

SB368,30,21 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, s. 87 Section 87. 281.36 (3r) of the statutes is created to read:

SB368,31,2 281.36 (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:

SB368,31,3 1. Purchasing credits from a mitigation bank located in this state.

SB368,31,5 2. Participating in the in lieu fee subprogram, if such a subprogram is established under par. (e).

SB368,31,7 3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.

SB368,31,10 (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.

SB368,31,14 (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.

SB368,31,18 (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.

SB368,32,4 (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, s. 88 Section 88. 281.36 (4) (intro.) of the statutes is amended to read:

SB368,32,8 281.36 (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, s. 89 Section 89. 281.36 (4) (b) of the statutes is amended to read:

SB368,32,11 281.36 (4) (b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.

SB368, s. 90 Section 90. 281.36 (4) (e) 1. of the statutes is amended to read:

SB368,32,14 281.36 (4) (e) 1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.

SB368, s. 91 Section 91. 281.36 (4) (e) 2. of the statutes is amended to read:

SB368,32,17 281.36 (4) (e) 2. That the reach of the affected nonfederal wetland is not reduced.

SB368, s. 92 Section 92. 281.36 (4) (e) 3. of the statutes is amended to read:

SB368,32,20 281.36 (4) (e) 3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.

SB368, s. 93 Section 93. 281.36 (5) (intro.) of the statutes is amended to read:

SB368,33,2 281.36 (5) Inapplicability of exemptions. (intro.) Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the certification permitting requirement under sub. (2) (3b) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of a nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:

SB368, s. 94 Section 94. 281.36 (5) (a) of the statutes is amended to read:

SB368,33,4 281.36 (5) (a) Impair the flow or circulation of any nonfederal wetland.

SB368, s. 95 Section 95. 281.36 (5) (b) of the statutes is amended to read:

SB368,33,6 281.36 (5) (b) Reduce the reach of any nonfederal wetland.

SB368, s. 96 Section 96. 281.36 (6) (a) 1. of the statutes is amended to read:

SB368,33,9 281.36 (6) (a) 1. Make the rules consistent with existing federal law or interpretation.

SB368, s. 97 Section 97. 281.36 (7) of the statutes is repealed.

SB368, s. 98 Section 98. 281.36 (8) (title) of the statutes is repealed.

SB368, s. 99 Section 99. 281.36 (8) (a) of the statutes is repealed.

SB368, s. 100 Section 100. 281.36 (8) (b) of the statutes is repealed.

SB368, s. 101 Section 101. 281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and amended to read: