SB368: Bill Text

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.

SB368, s. 9 Section 9. 23.321 (3) (a) of the statutes is repealed.

SB368, s. 10 Section 10. 23.321 (3m) of the statutes is created to read:

SB368,8,8 23.321 (3m) Fees; expedited service. The department may charge a supplemental fee for a type of service under sub. (2) that is in addition to the fee charged under sub. (3) if all of the following apply:

SB368,8,11 (a) The applicant requests in writing that the service be provided within a time period that is shorter than the time limit specified under sub. (4) for that type of service.

SB368,8,12 (b) The department verifies that it will be able to comply with the request.

SB368, s. 11 Section 11. 23.321 (4) (title) of the statutes is created to read:

SB368,8,14 23.321 (4) (title) Time limits.

SB368, s. 12 Section 12. 23.321 (4) (a) 1. of the statutes is repealed.

SB368, s. 13 Section 13. 23.321 (5) (title) of the statutes is created to read:

SB368,8,17 23.321 (5) (title) Length of validity.

SB368, s. 14 Section 14. 23.321 (6) (title) of the statutes is created to read:

SB368,8,19 23.321 (6) (title) Included on maps.

SB368, s. 15 Section 15. 30.025 (1b) (b) of the statutes is amended to read:

SB368,9,2 30.025 (1b) (b) "Permit" means an individual permit, a general permit, an approval, or a contract required under this subchapter or subch. II, a permit or an approval required under ch. 31, a storm water discharge permit required under s. 283.33 (1) (a), or a water quality certification wetland general permit or wetland individual permit required under s. 281.36 or under rules promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a).

SB368, s. 16 Section 16. 30.03 (4) (a) of the statutes is amended to read:

SB368,9,16 30.03 (4) (a) If the department learns of a possible violation of s. 281.36 or of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters, and the department determines that the public interest may not be adequately served by imposition of a penalty or forfeiture, the department may proceed as provided in this paragraph, either in lieu of or in addition to any other relief provided by law. The department may order a hearing under ch. 227 concerning the possible violation or infringement, and may request the hearing examiner to issue an order directing the responsible parties to perform or refrain from performing acts in order to comply with s. 281.36 or to fully protect the interests of the public in the navigable waters. If any person fails or neglects to obey an order, the department may request the attorney general to institute proceedings for the enforcement of the department's order in the name of the state. The proceedings shall be brought in the manner and with the effect of proceedings under s. 111.07 (7).

SB368, s. 17 Section 17. 30.2022 (2) of the statutes is amended to read:

SB368,9,24 30.2022 (2) The exemption under sub. (1) does not apply unless the activity is accomplished in accordance with interdepartmental liaison procedures established by the department and the department of transportation for the purpose of minimizing the adverse environmental impact, if any, of the activity. If the activity affects a wetland, as defined in s. 23.32 (1), the department of transportation shall conduct any required mitigation either by complying with the interdepartmental liaison procedures and any applicable interagency agreement on mitigation banks that is approved by the department of natural resources or by using any of the methods specified in s. 281.36 (3r) (a) 1. to 3.

SB368, s. 18 Section 18. 30.207 (7) (a) of the statutes is amended to read:

SB368,10,11 30.207 (7) (a) At least 15 days before beginning the activity that is authorized by a general permit under this section the person who wishes to conduct the activity shall submit a notice to the department and shall pay the fee specified in s. 30.28 (2) (b) 2 (1) (d). The notice shall describe the activity, state the name of the person that will be conducting the activity and state the site where the activity will be conducted. The notice shall also contain a statement signed by the person conducting the activity that the person will act in conformance with the standards contained in the general permit.

SB368, s. 19 Section 19. 30.28 (title) of the statutes is amended to read:

SB368,10,14 30.28 (title) Fees for permits, other approvals, and determinations and hearings.

SB368, s. 20 Section 20. 30.28 (1) of the statutes is renumbered 30.28 (1) (intro.) and amended to read:

SB368,10,24 30.28 (1) (intro.) The department shall charge a permit or approval fee for carrying out its duties and responsibilities under ss. 30.10 to 30.205, 30.207 and 30.21 to 30.27 reviewing, investigating, and making decisions on determinations and on whether to issue or grant permits, contracts, authorizations, or other approvals under this subchapter. The permit or approval required fee shall accompany the permit application, notice or request for approval or other submitted documentation. The department shall set each type of fee in the amount that is necessary to meet the costs incurred by the department except as follows:

SB368, s. 21 Section 21. 30.28 (1) (a) of the statutes is created to read:

SB368,11,2 30.28 (1) (a) For an individual permit issued under s. 30.208, the application fee shall be $600.

SB368, s. 22 Section 22. 30.28 (1) (b) of the statutes is created to read:

SB368,11,5 30.28 (1) (b) For authorization to proceed under a general permit issued under s. 30.206, the application fee shall be $300.

SB368, s. 23 Section 23. 30.28 (1m) of the statutes is created to read:

SB368,11,9 30.28 (1m) Additional fees. (a) In addition to the fees required under sub. (1), the department may set and charge fees for making any of the following determinations:

SB368,11,10 1. An identification of an ordinary high-water mark.

SB368,11,11 2. A determination of navigability.

SB368,11,14 3. Any other determination that is necessary for reviewing, investigating, or making a decision on applications for permits, contracts, authorizations, or other approvals under this chapter.

SB368,11,16 (b) The department shall set each fee authorized under this subsection in the amount that is necessary to meet the costs incurred by the department.

SB368, s. 24 Section 24. 30.28 (2) (title) of the statutes is repealed.

SB368, s. 25 Section 25. 30.28 (2) (a) (intro.) of the statutes is repealed.

SB368, s. 26 Section 26. 30.28 (2) (a) 1. of the statutes is repealed.

SB368, s. 27 Section 27. 30.28 (2) (a) 2. of the statutes is repealed.

SB368, s. 28 Section 28. 30.28 (2) (a) 3. of the statutes is repealed.

SB368, s. 29 Section 29. 30.28 (2) (b) 1. of the statutes is renumbered 30.28 (1) (c).

SB368, s. 30 Section 30. 30.28 (2) (b) 2. of the statutes is renumbered 30.28 (1) (d).

SB368, s. 31 Section 31. 30.28 (2m) (a) of the statutes is amended to read:

SB368,12,6 30.28 (2m) (a) The department shall refund a permit or approval fee charged under sub. (1) (a) if the applicant requests a refund before the department determines that the application for the permit or approval is complete. Except as provided in par. (am), the department may not refund a permit or approval fee after the department determines that the application is complete unless required to do so under a rule promulgated under s. 299.05.

SB368, s. 32 Section 32. 30.28 (2m) (am) of the statutes is amended to read:

SB368,12,10 30.28 (2m) (am) The department shall refund 50% of the fee specified in sub. (2) (b) 1. (1) (c) if the department denies an application for a general permit under s. 30.207 (3) (d) 1. or does not issue a general permit under s. 30.207 (6).

SB368, s. 33 Section 33. 30.28 (2m) (b) of the statutes is amended to read:

SB368,12,16 30.28 (2m) (b) If the applicant applies for a permit, requests an approval, or submits a notice under s. 30.207 (7) a person applies for a permit or otherwise seeks authorization or gives notice for a project or activity after the project or activity is begun or after it is completed, the department shall charge an amount equal to twice the amount of the fee that it would have charged under this section.

SB368, s. 34 Section 34. 30.28 (2m) (c) of the statutes is repealed.

SB368, s. 35 Section 35. 30.28 (2m) (d) of the statutes is amended to read:

SB368,12,23 30.28 (2m) (d) The department, by rule, may increase any fee specified in sub. (2) (a). The department, by rule, may increase a fee specified in sub. (2) (b) (1) or (1m) only if the increase is necessary to meet the costs incurred by the department in acting on general permits or on notices submitted under s. 30.207 performing the activities for which the fee is charged.

SB368, s. 36 Section 36. 30.28 (2r) (a) (intro.) of the statutes is amended to read:

SB368,13,3 30.28 (2r) (a) (intro.) The department, by rule, may charge a supplemental fee for a permit or, contract, authorization, other approval, or determination that is in addition to the fee charged under this section if all of the following apply:

SB368, s. 37 Section 37. 30.28 (2r) (a) 1. of the statutes is amended to read:

SB368,13,8 30.28 (2r) (a) 1. The applicant requests in writing that the permit or, approval authorization, or determination be issued or the contract be granted within a time period that is shorter than the time limit under the rule promulgated under par. (b) for that type of permit or, contract, authorization, approval, or determination.