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.
281.37(1)(b)
(b) "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.
281.37(1)(d)
(d) "Wetlands 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 to compensate for adverse impacts to other wetlands.
281.37(1)(e)
(e) "Wetland water quality standards" means water quality standards promulgated under
s. 281.15 (1) that affect wetlands.
281.37(2)(a)(a) The department may consider a mitigation project as part of an application, in combination with the requirements under
par. (b), for complying with any wetland water quality standards in determining whether to issue a permit for, or to otherwise approve, an activity that affects a wetland under
ss. 59.692,
61.351,
62.231,
87.30,
281.11 to
281.47 or
281.49 to
281.85 or
ch. 30,
31,
283,
289,
291,
292,
293,
295 or
299. This subsection does not entitle an applicant to a permit or other approval in exchange for conducting a mitigation project.
281.37(2)(b)
(b) The department may not consider a mitigation project in reviewing an application under
par. (a) unless the applicant demonstrates that all appropriate and practicable measures will be taken to avoid and minimize adverse impacts on the wetland.
281.37(2)(c)
(c) The department may not consider a mitigation project in reviewing an application under
par. (a) for an activity that adversely affects a wetland in an area of special natural resource interest or for an activity that adversely affects an area of special natural resource interest.
281.37(2)(d)
(d) If the department determines that the conditions of a permit or other authorization issued by the U.S. Army Corps of Engineers for an activity that affects a wetland do not meet the requirements of any guidelines established in the memorandum of agreement under
sub. (4), the department may impose additional conditions to ensure that the requirements are met. The department may not require that the acreage of a mitigation project considered under
par. (a) exceed the acreage that is required for the project under the guidelines established in the memorandum of agreement under
sub. (4).
281.37(2m)
(2m) Subsequent protection for wetlands. 281.37(2m)(a)1.1. A person who is the holder of a permit or other approval that authorizes a mitigation project shall grant a conservation easement under
s. 700.40 to the department 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 permit or other approval if the holder of the permit or other approval fails to take these measures.
281.37(2m)(a)2.
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, 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.
281.37(2m)(b)
(b) Notwithstanding
par. (a), the department shall modify or release a conservation easement granted under
par. (a) if all of the following apply:
281.37(2m)(b)1.
1. The department determines that part or all of the restored, enhanced or created wetland ceases to be a wetland.
281.37(2m)(b)2.
2. The person who is required to grant the conservation easement did not contribute to the loss of the wetland specified in
subd. 1.
281.37(2m)(b)3.
3. Any subsequent proprietor of or holder of interest in the property on which the wetland specified in
subd. 1. is located did not contribute to the loss of the wetland.
281.37(3)
(3) Rules. 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 rules shall address all of the following:
281.37(3)(a)
(a) Requirements for the avoidance and minimization of adverse impacts to the wetland that will be affected by the permitted activity.
281.37(3)(b)
(b) The conditions under which credits in a wetlands mitigation bank may be used for wetland compensatory mitigation.
