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 If the application is denied or withdrawn, an employee or representative of the department may not exercise this authority after the date on which the application is denied or withdrawn.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.
281.37(3)(c)
(c) Enforcement of a requirement to implement a mitigation project.
281.37(3)(d)
(d) Baseline studies of the wetland that will be affected by the permitted activity and of the mitigation project site.
281.37(3)(e)
(e) Plan and project design requirements for a mitigation project, which shall consider the relation of the project design to the hydrology of the watershed in which a mitigation project is located.
281.37(3)(f)
(f) The comparability of a wetland that will be restored, enhanced or created to the wetland that will be adversely affected by the permitted activity, including all of the following:
281.37(3)(f)1.
1. Consideration of the size, location, type and quality of the wetlands.
281.37(3)(f)2.
2. Consideration of the functional values performed by the wetlands.
281.37(3)(g)
(g) The establishment of a process for determining replacement ratios.
281.37(3)(h)
(h) Standards for measuring the short-term and long-term success of a mitigation project and requirements for the short-term and long-term monitoring of a mitigation project.
281.37(3)(i)
(i) Remedial actions to be taken by the applicant if a mitigation project is not successful and actions to be taken by a wetlands mitigation bank if a mitigation project on which mitigation credits are based is not successful.
281.37(3)(j)
(j) Establishment of an expedited decision-making process for activities adversely affecting wetlands that are less than one acre in size and that have negligible functional values.
281.37(3m)
(3m) Expedited decision-making process. 281.37(3m)(a)(a) The expedited decision-making process established under the rules under
sub. (3) (j) shall include a requirement that the department shall decide whether to issue a permit for, or otherwise approve, an activity within 60 working days after a complete application for the permit or approval has been received by the department if all of the following apply:
281.37(3m)(a)1.
1. The wetland that will be adversely affected is not located in a floodplain.
281.37(3m)(a)2.
2. The application does not involve the issuance of a permit or other approval under
ch. 30.
281.37(3m)(am)
(am) The expedited decision-making process established under the rules under
sub. (3) (j) may limit the scope of alternatives to the proposed activities that must be considered in reviewing an application under that process.
281.37(3m)(b)
(b) The department is exempt from the time limit under
par. (a) if the department determines that weather conditions prevent the department from making a determination within 60 working days after the receipt of the complete application.
281.37(4)
(4) Memorandum of agreement. The department shall initiate negotiations with the U.S. army corps of engineers to develop a memorandum of agreement establishing guidelines for mitigation projects and wetland mitigation banks. The guidelines shall address all of the topics described in
sub. (3) (a) to
(i).
281.37(5)
(5) Report to legislature. No later than January 31,
2003, and no later than January 31 of each subsequent odd-numbered year, the department shall submit to the legislature under
s. 13.172 (2) a report that provides an analysis of the impact of the implementation of this section on wetland resources and on the issuance of permits or other approvals 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.
281.37 History
History: 1999 a. 147;
2001 a. 6 ss.
1 to
5; Stats. 2001 s. 281.37;
2001 a. 38.
281.37 Cross-reference
Cross-reference: See also chs.
NR 300 and
350, Wis. adm. code.
WATER AND SEWAGE FACILITIES; SEPTAGE DISPOSAL
281.41
281.41
Approval of plans. 281.41(1)(a)(a) Except as provided under
sub. (2), every owner within the time prescribed by the department, shall file with the department a certified copy of complete plans of a proposed system or plant or extension thereof, in scope and detail satisfactory to the department, and, if required, of existing systems or plants, and any other information concerning maintenance, operation and other details that the department requires, including the information specified under
s. 281.35 (5) (a), if applicable. Material changes with a statement of the reasons shall be likewise submitted. Before plans are drawn, a statement concerning the improvement may be made to the department and the department may, if requested, outline generally what it will require. Upon receipt of the plans for approval, the department or its authorized representative shall notify the owner of the date of receipt.
281.41(1)(b)
(b) Within 90 days from the time of receipt of complete plans or within the time specified in
s. 281.35 (5) (c), if applicable, the department or its authorized representative shall examine and take action to approve, approve conditionally or reject the plans and shall state in writing any conditions of approval or reasons for rejection. Approval or disapproval of the plans and specifications may not be contingent upon eligibility of the proposed project for federal aid. The time period for review may be extended by agreement with the owner if the plans and specifications cannot be reviewed within the specified time limitation due to circumstances beyond the control of the department or in the case of extensive installation involving expenditures of $350,000 or more. The extension may not exceed 6 months. Failure of the department or its authorized representative to act before the expiration of the time period allowed for review shall constitute an approval of the plans, and upon demand a written certificate of approval shall be issued. Approval may be subject to modification by the department upon due notice.
281.41(1)(c)
(c) Construction or material change shall be according to approved plans only. The department may disapprove plans that are not in conformance with any existing approved areawide waste treatment management plan prepared pursuant to the federal water pollution control act,
P.L. 92-500, as amended, and shall disapprove plans that do not meet the grounds for approval specified under
s. 281.35 (5) (d), if applicable. The department shall disapprove plans that are not in conformance with any applicable approved water supply service area plan under
s. 281.348.
281.41(2)
(2) The department may, by rule, exempt an owner of a specific type of system or plant from the requirements of
sub. (1) or modify the requirements of
sub. (1) for a specific type of system or plant.
281.41(3)(a)(a) In this subsection, "septage service area" means the area containing private sewage systems served or anticipated to be served by a sewage disposal plant during the planning period.
281.41(3)(b)
(b) If an owner proposes a sewage disposal plant or an extension of an existing sewage disposal plant that increases the capacity of the existing plant by at least 20 percent, the department shall require that owner, in preparing a plan under this section, to address the need for, and include plans for, the disposal of septage, as defined in
s. 281.48 (2) (d). The department shall require an owner to address all of the following under this paragraph:
281.41(3)(b)1.
1. The amount of septage produced throughout the septage service area and the expected increase in septage production during the planning period.
281.41(3)(b)2.
2. The capacity for the disposal of septage during the planning period on land within the septage service area, in the sewage disposal plant, and by other available methods.
281.41(3)(b)3.
3. The location of private sewage systems within the septage service area, and the distances required to haul septage for disposal either on land or in the sewage disposal plant.
281.41(3)(b)4.
4. The potential for contracts with private sewage system owners, licensed disposers, as defined in
s. 281.49 (1) (b), or municipalities to assure delivery of septage to the sewage disposal plant.
