SB368: Bill Text

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SB368, s. 97 Section 97. 281.36 (7) of the statutes is repealed.

SB368, s. 98 Section 98. 281.36 (8) (title) of the statutes is repealed.

SB368, s. 99 Section 99. 281.36 (8) (a) of the statutes is repealed.

SB368, s. 100 Section 100. 281.36 (8) (b) of the statutes is repealed.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

SB368,33,22 281.36 (3g) (b) Additional required permits. The In addition to the wetland general permits required under par. (a), the department shall issue wetland general water quality certifications permits that are consistent with all of the, and correspond to, any general permits that are issued under 33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state and that regulate discharges other than those regulated under the required wetland general permits issued under par. (a).

SB368, s. 102 Section 102. 281.36 (8) (bn) 2. of the statutes is repealed.

SB368, s. 103 Section 103. 281.36 (8) (c) of the statutes is repealed.

SB368, s. 104 Section 104. 281.36 (8) (d) of the statutes is repealed.

SB368, s. 105 Section 105. 281.36 (8) (e) of the statutes is repealed.

SB368, s. 106 Section 106. 281.36 (9) (a) (intro.) of the statutes is amended to read:

SB368,34,8 281.36 (9) (a) (intro.) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under sub. (4) is appropriate, and for purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

SB368, s. 107 Section 107. 281.36 (9) (a) 1. of the statutes is amended to read:

SB368,34,12 281.36 (9) (a) 1. Enter and inspect any property on which is located a nonfederal wetland, or part of a nonfederal wetland, for which an application for a water quality certification has been submitted to the department under sub. (3g) or (3m).

SB368, s. 108 Section 108. 281.36 (9) (a) 2. of the statutes is amended to read:

SB368,34,16 281.36 (9) (a) 2. Enter and inspect any property on which is located a nonfederal wetland to investigate a discharge of dredged or fill material that the department has reason to believe is in violation of this section.

SB368, s. 109 Section 109. 281.36 (9) (a) 3. of the statutes is amended to read:

SB368,34,21 281.36 (9) (a) 3. Gain access to and inspect any records that the department requires a holder of a water quality certification to wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.

SB368, s. 110 Section 110. 281.36 (9) (am) to (c) of the statutes are repealed.

SB368, s. 111 Section 111. 281.36 (9) (d) and (e) of the statutes are created to read:

SB368,34,25 281.36 (9) (d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under par (a).

SB368,35,2 (e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:

SB368,35,3 1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.

SB368,35,5 2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.

SB368, s. 112 Section 112. 281.36 (10) (intro.) and (a) of the statutes are consolidated, renumbered 281.36 (10) and amended to read:

SB368,35,15 281.36 (10) Other Additional requirements. The requirement of being issued a wetland individual permit or proceeding under the authority of a wetland general permit under this section is in addition to any permit or other approval required by the department for a project or activity that involves a discharge into a wetland. This section does not affect the authority of the department to do any of the following: (a) Regulate otherwise regulate the discharge of dredged or fill material in a nonfederal wetland under ss. 59.692, 61.351, 62.231, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.

SB368, s. 113 Section 113. 281.36 (10) (b) of the statutes is repealed.

SB368, s. 114 Section 114. 281.36 (11) of the statutes is created to read:

SB368,36,2 281.36 (11) Restoration; surcharge fee. (a) The department shall set a surcharge fee to be charged for each application to proceed under a wetland general permit that is issued under sub. (3g) (a) 4., 5., or 6. The surcharge fee shall be set on an annual basis by the department and may not exceed more than 50 percent of the market price, as determined by the department, for the equivalent purchase of credits from a mitigation bank. These fees shall be credited to the appropriation account under s. 20.370 (4) (bm) for the restoration and creation of wetlands. The department may enter into agreements with other entities for the restoration and creation of such wetlands.

SB368,36,7 (b) Any wetland that is restored or created using funding from the appropriation under s. 20.370 (4) (bm) 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.

SB368, s. 115 Section 115. 281.36 (12) (a) of the statutes is created to read:

SB368,36,14 281.36 (12) (a) Fees required. The department shall charge a fee for reviewing, investigating, and making decisions on applications to proceed under wetland general permits under sub. (3g) and on applications for wetland individual permits under sub. (3m). For an authorization to proceed under a wetland general permit, the application fee shall be $500. For a wetland individual permit, the application fee shall be $800.

SB368, s. 116 Section 116. 281.36 (12) (b) of the statutes is created to read:

SB368,36,18 281.36 (12) (b) Additional fee. The department may set and charge a fee in the amount necessary to meet the costs incurred by the department in reviewing mitigation that is conducted by mitigation banks.

SB368, s. 117 Section 117. 281.36 (13) of the statutes is created to read:

SB368,36,24 281.36 (13) Parties to a violation. (a) Whoever is concerned in the commission of a violation of this section for which a forfeiture is imposed is a principal and may be charged and found in violation although he or she did not directly commit the violation and although the person who directly committed it has not been found in violation.

SB368,37,2 (b) A person is concerned in the commission of the violation if the person does any of the following:

SB368,37,3 1. Directly commits the violation.

SB368,37,4 2. Aids and abets the commission of the violation.

SB368,37,6 3. Is a party to a conspiracy with another to commit the violation or advises, hires, counsels, or otherwise procures any person to commit it.

SB368, s. 118 Section 118. 281.36 (14) of the statutes is created to read:

SB368,37,11 281.36 (14) Penalties. (a) Except as provided in par. (b), any person who violates any provision of this section shall forfeit not less than $100 nor more than $10,000 for the first offense and shall forfeit not less than $500 nor more than $10,000 upon being found in violation of the same offense a 2nd or subsequent time.

SB368,37,15 (b) Any person who violates a wetland general permit issued under sub. (3g) shall forfeit not less than $10 nor more than $500 for the first offense and shall forfeit not less than $50 nor more than $500 upon being found in violation of the same offense a 2nd or subsequent time.

SB368,37,18 (c) A violation of any condition contained in a wetland general permit issued under sub. (3g) is a violation of the statute under which the general permit was issued.

SB368,37,22 (d) In addition to the forfeitures specified under pars. (a) and (b), a court may order a defendant to abate any nuisance, restore a natural resource, or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the defendant.

SB368, s. 119 Section 119. 281.37 (title) of the statutes is repealed.

SB368, s. 120 Section 120. 281.37 (1) (intro.) of the statutes is repealed.

SB368, s. 121 Section 121. 281.37 (1) (a) of the statutes is repealed.

SB368, s. 122 Section 122. 281.37 (1) (b) of the statutes is renumbered 281.36 (1) (bn) and amended to read:

SB368,38,6 281.36 (1) (bn) "Mitigation project" means the restoration, enhancement or creation of wetlands to compensate for adverse impacts to other wetlands. "Mitigation project" includes using credits from a wetlands mitigation bank mitigation of the type specified in sub. (3r) (a) 3.

SB368, s. 123 Section 123. 281.37 (1) (d) of the statutes is renumbered 281.36 (1) (bL) and amended to read:

SB368,38,13 281.36 (1) (bL) "Wetlands mitigation Mitigation bank" means 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 purchased to compensate for adverse impacts to other wetlands.

SB368, s. 124 Section 124. 281.37 (1) (e) of the statutes is repealed.

SB368, s. 125 Section 125. 281.37 (1) (f) of the statutes is repealed.

SB368, s. 126 Section 126. 281.37 (2) of the statutes is repealed.

SB368, s. 127 Section 127. 281.37 (2m) of the statutes is renumbered 281.36 (8m), and 281.36 (8m) (a) 1. and 2. and (b) (intro.) and 2., as renumbered, are amended to read:

SB368,39,2 281.36 (8m) (a) 1. A person who is the holder of a wetland individual permit or other approval that authorizes a mitigation project shall grant a conservation easement under s. 700.40 to the department or shall execute a comparable legal instrument to ensure that a wetland that is being restored, enhanced, or created will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located. The department shall revoke the wetland individual permit or other approval if the holder of the individual permit or other approval fails to take these measures.

SB368,39,8 2. A person who is restoring, enhancing, or creating a wetland to provide transferable credits as part of a wetlands mitigation bank shall grant a conservation easement under s. 700.40 to the department, or shall execute a comparable legal instrument to ensure that the wetland will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located.

SB368,39,11 (b) (intro.) Notwithstanding par. (a), the department shall modify or release a conservation easement granted under par. (a), or shall void a comparable legal instrument executed under par. (a) if all of the following apply:

SB368,39,14 2. The person who is required to grant the conservation easement or execute the legal instrument did not contribute to the loss of the wetland specified in subd. 1.

SB368, s. 128 Section 128. 281.37 (3) (intro.) of the statutes is renumbered 281.36 (3t) (intro.) and amended to read:

SB368,39,22 281.36 (3t) Rules for mitigation. (intro.) The department shall promulgate rules to establish a process for consideration of wetland compensatory mitigation under sub. (2). Upon promulgation, the rules shall apply to any application or other request for an initial determination for a permit or other authorization that is pending with the department on the date on which the rules take effect the mitigation program under sub. (3r). The rules shall address all of the following:

SB368, s. 129 Section 129. 281.37 (3) (a) of the statutes is renumbered 281.36 (3t) (a) and amended to read:

SB368,40,4 281.36 (3t) (a) Requirements for the avoidance and minimization of adverse impacts to the wetland that will be affected by the permitted activity analysis of practicable alternatives that is included in an application for a wetland individual permit under sub. (3m) (b).

SB368, s. 130 Section 130. 281.37 (3) (b) of the statutes is renumbered 281.36 (3t) (b) and amended to read:

SB368,40,9 281.36 (3t) (b) The conditions under which credits in a wetlands mitigation bank may be used for wetland compensatory mitigation purchased from a mitigation bank to comply with the mitigation program under sub. (3r).

SB368, s. 131 Section 131. 281.37 (3) (c) of the statutes is renumbered 281.36 (3t) (c) and amended to read:

SB368,40,14 281.36 (3t) (c) Enforcement of a requirement to implement a mitigation project requirements under the mitigation program under sub. (3r) that apply to mitigation projects and mitigation banks.

SB368, s. 132 Section 132. 281.37 (3) (d) of the statutes is renumbered 281.36 (3t) (d) and amended to read:

SB368,40,19 281.36 (3t) (d) Baseline studies of the wetland wetlands that will be affected by the permitted activity discharges and of the sites for mitigation project site projects.

SB368, s. 133 Section 133. 281.37 (3) (e) of the statutes is renumbered 281.36 (3t) (e) and amended to read:

SB368,41,2 281.36 (3t) (e) Plan and project design requirements for a mitigation project, which shall consider the relation of the project design projects and mitigation bank sites, which shall include requirements for relating the design of a mitigation project or a mitigation bank site to the hydrology of the watershed in which a mitigation project or mitigation bank site is located.

SB368, s. 134 Section 134. 281.37 (3) (f) of the statutes is renumbered 281.36 (3t) (f), and 281.36 (3t) (f) (intro.), as renumbered, is amended to read: