281.36(1m)(b)1.
1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.
281.36(1m)(b)2.
2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.
281.36(2)(a)(a) No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.
281.36(2)(b)1.1. The department shall approve or deny a complete application for a water quality certification under this section within 120 days after the date the department determines that a complete application for the certification has been submitted unless the applicant and the department agree to extend the time period. The department may not determine an application to be complete until the requirements under
s. 1.11 have been met and until all of the items of information for the water quality certification and for any associated permits or other approvals have been submitted to the department. If the department fails to approve or deny the complete application within the applicable time period, the applicant may bring an action for mandamus to compel the department to approve or deny the application. If the court grants the mandamus, the department shall approve or deny the application within 30 days after the mandamus is granted and the court shall award the applicant reasonable attorney fees and court costs incurred in bringing the action.
281.36(2)(b)2.
2. For purposes of
subd. 1., the department shall initially determine whether a complete application has been submitted and, no later than 30 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this subdivision. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the application has been submitted.
281.36(3)
(3) Delineation procedures. For purposes of delineating the boundary of a nonfederal wetland, the department and the person who is applying for or who holds a water quality certification under this section shall use the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department by rule designates that edition as the one to be used under this subsection. If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after May 8, 2001, the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.
281.36(4)
(4) Exemptions. Except as provided in
sub. (5), the certification requirement under
sub. (2) does not apply to any discharge that is the result of any of the following activities:
281.36(4)(a)
(a) Normal farming, silviculture, or ranching activities.
281.36(4)(b)
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.
281.36(4)(c)
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
281.36(4)(e)
(e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:
281.36(4)(e)1.
1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.
281.36(4)(e)2.
2. That the reach of the affected nonfederal wetland is not reduced.
281.36(4)(e)3.
3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.
281.36(5)
(5) Inapplicability of exemptions. Notwithstanding
sub. (4), a discharge that would be exempt under
sub. (4) is subject to the certification requirement under
sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:
281.36(5)(a)
(a) Impair the flow or circulation of any nonfederal wetland.
281.36(5)(b)
(b) Reduce the reach of any nonfederal wetland.
281.36(6)(a)(a) The department shall promulgate rules to interpret and implement the provisions under
subs. (4) and
(5). In promulgating these rules, the department shall do all of the following:
281.36(6)(a)1.
1. Make the rules consistent with existing federal law.
281.36(6)(a)2.
2. Incorporate any applicable additional federal law or interpretation into the rules.
281.36(6)(b)
(b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.
281.36(7)
(7) Rules prohibition; determinations of public safety. 281.36(7)(a)(a) The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if all of the following apply:
281.36(7)(a)2.
2. The wetland is not in an area of special natural resource interest.
281.36(7)(a)3.
3. The application for the water quality certification includes a copy of a determination that the discharge is necessary for public safety that is made under
par. (b) or that is made in response to a request made under
par. (bn).
281.36(7)(b)1.1. A political subdivision shall make a determination as to whether a discharge into a nonfederal wetland within the boundaries of the political subdivision is necessary for public safety if requested to do so by an applicant for a water quality certification under this section. A state transportation agency shall make a determination as to whether a discharge into a nonfederal wetlands is necessary for public safety if requested to do so by an applicant for a water quality certification under this section.
281.36(7)(b)2.
2. Before a political subdivision or a state transportation agency makes any determination under
subd. 1., it shall publish appropriate notice, as determined by the political subdivision or the state transportation agency, to the public that describes the request and that states that it will be making the determination. On or before the date of the publication of the notice, the political subdivision or state transportation agency shall mail or otherwise provide a written copy of the notice to the department. After publication of the notice, the governing body of the political subdivision or the state transportation agency may hold a public hearing to determine whether the discharge is necessary for public safety. Any public hearing held under this subdivision shall be held no later than 30 days after the applicant for the water quality certification made the request for the determination. The governing body of the political subdivision or the state transportation agency shall issue the determination in writing, and the determination shall include a statement of the grounds for making the determination.
281.36(7)(b)3.
3. The department or any person whose substantial interests are adversely affected by a determination issued under
subd. 2. by a governing body of a political subdivision or by a state transportation agency may file for judicial review of the determination.
Section 68.13 shall apply to the judicial review of a determination made by a political subdivision.
Sections 227.52 to
227.58 shall apply to the judicial review of a determination made by a state transportation agency.
281.36(7)(bn)
(bn) An applicant for a water quality certification may submit a request to a federal transportation agency for a determination as to whether a discharge into a nonfederal wetland is necessary for public safety.
281.36(7)(c)1.1. Notwithstanding the fact that an applicant for a water quality certification under this section has received a determination that the discharge is necessary for public safety, the department may conduct an examination of the practicable alternatives to the proposed discharge that will not adversely affect the nonfederal wetland and that will not result in other significant adverse environmental consequences.
281.36(7)(c)2.
2. If the department decides under
subd. 1. to conduct an examination, the department shall conduct the examination by first determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting the examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.
281.36(7)(c)3.
3. If the department determines that no practicable alternative exists after conducting the examination under
subd. 2., the department may proceed with the examination by determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is not located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting an examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.
281.36(7)(c)4.
4. If the department determines that no practicable alternative exists after conducting the examination under
subds. 2. and
3., the department may require that the applicant implement a mitigation project under
s. 281.37 (2).
281.36(8)
(8) General water quality certifications. 281.36(8)(a)(a) In lieu of issuing individual water quality certifications under this section, the department may issue a general water quality certification for types of discharges that the department determines are similar in nature or for the purpose of simplifying the certification process if the discharges meet all of the following standards:
281.36(8)(a)1.
1. The discharges will cause only minimal adverse environmental effects, as determined by the department, if they are performed separately.
281.36(8)(a)2.
2. The cumulative adverse effect on the environment by the discharges will be minimal, as determined by the department.
281.36(8)(b)
(b) No general water quality certification issued under
par. (a) may be effective for more than 5 years after the date of its issuance.
281.36(8)(bn)1.1. The department shall issue general water quality certifications that are consistent with all of the general permits issued under
33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state.
281.36(8)(bn)2.
2. If a general permit as specified in
subd. 1. is amended or modified after January 8, 2001, the department shall incorporate the amendments or modifications into the general water quality certification issued under
subd. 1. and may not otherwise amend or modify the general water quality certification.
281.36(8)(c)
(c) If the department determines that any of the discharges under a general water quality certification issued under
par. (a) fails to meet any of the standards in
par. (a), the department shall modify the certification so that the discharges meet all of the standards. If the department cannot modify the certification so that all of the standards will be met or if the department determines that the discharges subject to the general certification are more appropriately certified by using individual water quality certifications, the department shall revoke the general certification.
281.36(8)(d)
(d) Before issuing, modifying, or revoking a general water quality certification issued under
par. (a), the department shall provide notice and a hearing under
ss. 227.17 and
227.18.
281.36(8)(e)
(e) Subsection (2) (b) does not apply to general water quality certifications issued under this subsection.
281.36(9)(a)(a) 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:
281.36(9)(a)1.
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.
281.36(9)(a)2.
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.
281.36(9)(a)3.
3. Gain access to and inspect any records that the department requires a holder of a water quality certification to keep.
281.36(9)(am)
(am) An employee or representative of the department may not exercise the authority granted under
par. (a) 1. before the date on which the application is submitted. If the application is denied or withdrawn, an employee or representative of the department may not exercise this authority after the date on which the application is denied or withdrawn. If the application is approved, an employee or representative of the department may not exercise this authority after the 30th day immediately following the completion date of the discharge of the dredged or fill material or the completion date of any conditions imposed under the water quality certification, whichever date is later.
281.36(9)(ar)1.1. Before entering and inspecting a property under
par. (a) 2., the department shall make at least one of the following requests:
281.36(9)(ar)1.a.
a. A request for consent from the proprietor to enter and inspect the property.
281.36(9)(ar)1.b.
b. A request, orally or in writing, that the proprietor provide an oral or written explanation, as elected by the department, concerning the activity that the department has reason to believe may constitute a violation of this section.
281.36(9)(ar)2.a.a. If the proprietor grants consent for the entry on, and the inspection of, the property to investigate a discharge as authorized under
par. (a) 2., the department, upon reasonable advance notice, may enter and inspect the property in compliance with the terms of the consent granted by the proprietor.
281.36(9)(ar)2.b.
b. If the proprietor refuses to grant consent for the entry on, or the inspection of, the property or if the proprietor's explanation or terms of consent are not acceptable to the department of natural resources, the department of natural resources may apply for, obtain, or execute a special inspection warrant under
s. 66.0119 or refer the matter to the department of justice for enforcement under
s. 299.95.
281.36(9)(ar)2.c.
c. If the proprietor fails to respond to all requests made under
subd. 1., an agent of the department of natural resources may apply for, obtain, and execute a special inspection warrant under
s. 66.0119.
281.36(9)(ar)3.
3. Any employee or representative of the department may make the requests under
subd. 1. or enter or inspect property under
subd. 2. a. only during reasonable hours.
281.36(9)(b)
(b) Any employee or representative of the department may exercise the authority granted under
par. (a) 1. or
3. only during reasonable hours and only after the department has provided reasonable advance notice to the proprietor of the property involved or to the holder of the water quality certification.
281.36(9)(c)
(c) An employee or representative of the department may not gain access to or inspect any records as authorized under
par. (a) 3. unless the holder of the water quality certification, or the holder's designee, is present or unless the holder of the certification waives this requirement.
281.36(10)
(10) Other requirements. This section does not affect the authority of the department to do any of the following:
281.36(10)(a)
(a) 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.
281.36(10)(b)
(b) Issue a water quality certification under rules promulgated under this chapter to implement
33 USC 1341 (a).
281.36 History
History: 2001 a. 6;
2005 a. 253.
281.36 Cross-reference
Cross-reference: See also ch.
NR 300,
351,
352, and
353, Wis. adm. code.
281.37
281.37
Wetlands; compensatory mitigation. 281.37(1)(a)
(a) "Area of special natural resource interest" means an area that possesses significant ecological, cultural, aesthetic, educational, recreational or scientific values, including any of the following:
281.37(1)(a)1.
1. A cold water community, as defined by the department, including a trout stream or its tributary or a trout lake.
281.37(1)(a)2.
2. Lake Michigan, Lake Superior or the Mississippi River.
281.37(1)(a)3.
3. A wild and scenic river designated under
16 USC 1271 to
1287, a wild river designated under
s. 30.26, the Lower Wisconsin State Riverway or a scenic urban waterway designated under
s. 30.275.
281.37(1)(a)4.
4. A unique and significant wetland identified in a special area management plan, as defined in
16 USC 1453 (17), a special wetland inventory study or advanced delineation and identification study under
40 CFR 230.80 or an area designated by the U.S. environmental protection agency under
33 USC 1344 (c).
281.37(1)(a)6.
6. A habitat used by state or federally designated threatened or endangered species.
281.37(1)(a)8.
8. A state or federal fish and wildlife refuge or fish and wildlife management area.
281.37(1)(a)12.
12. Surface waters identified by the department as outstanding or exceptional resource waters under
s. 281.15.
