281.35 Annotation
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR,
2011 WI 54,
335 Wis. 2d 47,
799 N.W.2d 73,
08-3170.
281.35 Annotation
There is nothing in either s. 281.34 or 281.35 that limits the DNR's authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subchapter II of Wis. Stat. ch. 281 that requires the DNR to issue a permit for a well if the statutory requirements are met and no formal review or findings are required. There being no language expressly revoking or limiting the DNR's authority and general duty to protect and manage waters of the state, the DNR retains such authority and general duty to consider whether a proposed high capacity well may impact waters of the state. Lake Beulah Management District v. DNR,
2011 WI 54,
335 Wis. 2d 47,
799 N.W.2d 73,
08-3170.
281.35 Annotation
The DNR is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. Upon what evidence, and under what circumstances, that duty is triggered is a highly fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to the DNR decision makers. The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application such that it has an obligation to consider environmental concerns. Lake Beulah Management District v. DNR,
2011 WI 54,
335 Wis. 2d 47,
799 N.W.2d 73,
08-3170.
281.36
281.36
Permits for discharges into wetlands; mitigation. 281.36(1)(a)
(a) "Additional federal law or interpretation" means any of the following:
281.36(1)(a)2.
2. Any other federal statutory provision that affects the exemptions under
33 USC 1344 (f) and that becomes effective after January 9, 2001.
281.36(1)(a)3.
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
281.36(1)(a)4.
4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in
subds. 1. to
3., that applies to wetlands located in this state, and that is issued after January 9, 2001.
281.36(1)(b)
(b) "Existing federal law or interpretation" means any of the following:
281.36(1)(b)2.
2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
281.36(1)(b)3.
3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in
subd. 1. or
2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
281.36(1)(bj)
(bj) "Mitigation" means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.
281.36(1)(bL)
(bL) "Mitigation bank" means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands.
281.36(1)(cp)
(cp) "Practicable" means reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project.
281.36(1)(d)
(d) "Water quality standards" means water quality standards set under rules promulgated by the department under
s. 281.15.
281.36(2m)
(2m) Delineation procedures. For purposes of delineating the boundary of a wetland under this section, the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers shall be used. 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 designates that edition as the one to be used under this subsection.
281.36(3b)(a)(a) For purposes of this section, a wetland general or individual permit issued by the department constitutes water quality certification as required by
33 USC 1341 (a).
281.36(3b)(b)
(b) No person may discharge dredged material or fill material into a wetland unless the discharge is authorized by a wetland general permit or individual permit issued by the department under this section or the discharge is exempt under
sub. (4). No person may violate any condition contained in a wetland general or individual permit issued by the department under this section. The department may not issue a wetland general or individual permit under this section unless it determines that the discharge authorized pursuant to the wetland general or individual permit will comply with all applicable water quality standards.
281.36(3g)(a)(a)
Required permits. The department shall issue a wetland general permit for each of the following types of discharges:
281.36(3g)(a)1.
1. A discharge that is necessary for the treatment or disposal of hazardous waste or toxic pollutants, if the discharge does not contain hazardous waste or toxic pollutants and does not affect more than 2 acres of wetland.
281.36(3g)(a)2.
2. A discharge that is necessary for temporary access and dewatering, if the discharge does not affect more than 2 acres of wetland.
281.36(3g)(a)3.
3. A temporary or permanent discharge for routine utility construction and maintenance projects and activities.
281.36(3g)(a)4.
4. A discharge that is part of a development for industrial purposes, if the discharge does not affect more than 10,000 square feet of wetland. For purposes of this subdivision, the development of a waste disposal site is considered to be a development for industrial purposes.
281.36(3g)(a)5.
5. A discharge that is part of a development for commercial purposes, if the discharge does not affect more than 10,000 square feet of wetland.
281.36(3g)(a)6.
6. A discharge that is part of a development for residential purposes, if the discharge does not affect more than 10,000 square feet of wetland.
281.36(3g)(a)7.
7. A discharge that is part of a development for agricultural purposes, if the discharge does not affect more than 10,000 square feet of wetland.
281.36(3g)(a)8.
8. A discharge that is part of a development for municipal purposes, if the discharge does not affect more than 10,000 square feet of wetland.
281.36(3g)(a)9.
9. A discharge that is part of a development for recreational purposes, if the discharge does not affect more than 10,000 square feet of wetland.
281.36(3g)(a)10.
10. A discharge that is necessary for the construction, reconstruction, or maintenance of a bridge or culvert that is part of a transportation project that is being carried out under the direction and supervision of a city, village, town, or county.
281.36(3g)(b)
(b)
Additional required permits. In addition to the wetland general permits required under
par. (a), the department shall issue wetland general permits that are consistent with, and correspond to, any general permits that are issued under
33 USC 1344 (e) and that regulate discharges other than those regulated under the required wetland general permits issued under
par. (a).
281.36(3g)(c)
(c)
Additional permits. The department may issue wetland general permits, in addition to those required under
pars. (a) and
(b), to regulate other discharges that affect wetlands located in this state.
281.36(3g)(d)
(d)
Requirements; conditions; restrictions. In issuing wetland general permits under this subsection, the department shall establish requirements, conditions, and exceptions to ensure that the discharges will cause only minimal adverse environmental effects, and a general permit may apply only to a single and complete project. As part of a general permit, the department may prohibit discharges into wetlands that are identified by the department as being one of the following:
281.36(3g)(d)5m.
5m. Sphagnum bogs that are located in the area located south of a horizontal line drawn across the state based on the routes of STH 16 and STH 21 west of Lake Winnebago and on USH 151 east of Lake Winnebago.
281.36(3g)(e)
(e)
Period of validity; subsequent actions. A wetland general permit issued under this subsection is valid for a period of 5 years. Upon compliance with the requirements under
pars. (f) to
(g), the department may renew, modify, or revoke a wetland general permit issued under this subsection.
281.36(3g)(f)
(f)
Public notice. The department shall provide to interested members of the public notices of its intention to issue, renew, modify, or revoke a wetland general permit under this subsection. Procedures for providing public notices shall include all of the following:
281.36(3g)(f)2.
2. Providing a copy of the notice to any person or group upon request of the person or group.
281.36(3g)(f)3.
3. Publication of the notice on the department's Internet Web site.
281.36(3g)(fg)
(fg)
Date of notice. For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet Web site shall be considered the date of public notice.
281.36(3g)(fm)
(fm)
Written comments. The department shall provide a period of not less than 30 days after the date of the public notice during which time interested persons may submit their written comments on the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. All written comments submitted during the period for comment shall be retained by the department and considered by the department in acting on the general permit.
281.36(3g)(fr)
(fr)
Description in notice. Every public notice provided by the department under
par. (f) shall include a description of the discharges to be authorized under the wetland general permit.
281.36(3g)(g)1.1. The department shall provide an opportunity for any interested state agency or federal agency or person or group of persons to request a public informational hearing with respect to the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. The request for the hearing shall be filed with the department within 30 days after the provision of the public notice under
par. (f) and shall indicate the interest of the party filing the request and the reasons why the hearing is warranted.
281.36(3g)(g)2.
2. The department shall hold a public informational hearing upon a request under
subd. 1. if the department determines that there is a significant public interest in holding such a hearing. Hearings held under this subsection are not contested cases under
s. 227.01 (3).
281.36(3g)(g)3.
3. Public notice of any hearing held under this subsection shall be circulated in accordance with the requirements under
par. (f). The public notice shall include the time, date, and location of the hearing, a summary of the subject matter of the wetland general permit, and information indicating where additional information about the general permit may be viewed on the department's Internet Web site. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the general permit.
281.36(3g)(h)
(h)
Authorizations for discharges under wetland general permits. 281.36(3g)(h)1.1. A person wishing to proceed with a discharge that may be authorized under a wetland general permit shall apply to the department, with written notification of the person's wish to proceed, not less than 30 days before commencing the discharge authorized by the general permit unless
subd. 4. applies. The application shall provide information describing the discharge in order to allow the department to determine whether the discharge is authorized by the wetland general permit and shall give the department consent to enter and inspect the site, subject to
sub. (9). The application shall identify all activities affecting wetlands that will be conducted as part of the single and complete project. The application shall include a detailed explanation of why the impact to the wetland cannot be avoided and how the impact to the wetland will be minimized to the greatest extent practicable. The application shall be accompanied by the fee specified in
sub. (12) (a). If the application is for authorization to proceed under a wetland general permit that is issued under
sub. (3g) (a) 4.,
5., or
6., the application shall be accompanied by a surcharge fee, as calculated under
sub. (11). The department may make a request for additional information one time during this 30-day period.
281.36(3g)(h)2.
2. If, within 30 days after an application under
subd. 1. is received by the department, the department does not either request additional information or inform the applicant that a wetland individual permit will be required as provided in
par. (i), the discharge shall be considered to be authorized under the wetland general permit and the applicant may proceed without further notice, hearing, permit, or approval if the discharge is carried out in compliance with all of the conditions of the general permit, except as provided in
s. 295.60 (3) (b).
281.36(3g)(h)2m.
2m. If adverse weather conditions prevent the department from conducting an accurate on-site inspection during this 30-day period specified in
subd. 1., the department shall give notice to the person wishing to proceed with the discharge that adverse weather conditions will prevent the department from complying with the 30-day deadline and shall complete the inspection as soon as weather conditions permit.
281.36(3g)(h)3.
3. If the department requests additional information under
subd. 1., the 30-day period is tolled from the date the person applying for authorization to proceed receives the request until the date on which the department receives all of the additional information.
281.36(3g)(h)4.
4. As part of a wetland general permit issued under
par. (b) or
(c), the department may waive the requirement that a person wishing to proceed under the general permit apply to the department as required under this paragraph so that the person may proceed with the discharge without specific authorization from the department.
281.36(3g)(h)5.
5. Authorization to proceed under a wetland general permit is valid for 5 years after the date on which the discharge is considered to be authorized or until the discharge is completed, whichever occurs first.
281.36(3g)(i)
(i)
Wetland individual permit in lieu of wetland general permit. For a proposed discharge for which an application has been received by the department under
par. (h), the department may decide to require that a person who submitted the application apply for a wetland individual permit if the department has inspected the site as provided in
par. (h) and has determined 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.
281.36(3m)(a)(a)
When permit required. Any person wishing to proceed with a discharge into any wetland shall submit an application for a wetland individual permit under this subsection unless the discharge has been authorized under a wetland general permit as provided in
sub. (3g) or is exempt under
sub. (4). Before submitting the application, the department shall hold a meeting with the applicant to discuss the details of the proposed discharge and the requirements for submitting the application and for delineating the wetland. An applicant may include in the application a request for a public informational hearing. The application shall be accompanied by the applicable fee specified in
sub. (11) or
(12) (a).
281.36(3m)(b)
(b)
Analysis of practicable alternatives. An applicant shall include in an application submitted under
par. (a) an analysis of the practicable alternatives that will avoid and minimize the adverse impacts of the discharge on wetland functional values and that will not result in any other significant adverse environmental consequences.
281.36(3m)(c)
(c)
Review; no additional information required. In issuing wetland individual permits under this section, the department shall review an application, and within 30 days after the application is submitted, the department shall determine that either the application is complete or that additional information is needed. If the department determines that the application is complete, the department shall notify the applicant in writing of that fact within the 30-day period, and the date on which the notice under this paragraph is sent shall be considered the date of closure for purposes of
par. (g) 1.
281.36(3m)(d)
(d)
Additional information requested. If the department determines that the application is incomplete, the department shall notify the applicant in writing and may make only one request for additional information during the 30-day period specified in
par. (c). Within 10 days after receiving all of the requested information from the applicant, the department shall notify the applicant in writing as to whether the application is complete. The date on which the 2nd notice under this paragraph is sent shall be set as the date of closure for purposes of
par. (g) 1. The department may request additional information from the applicant to supplement the application, but the department may not request items of information that are outside the scope of the original request unless the applicant and the department both agree. A request for any such additional information may not affect the date of closure.
281.36(3m)(e)
(e)
Specificity of notice; limits on information. Any notice stating that an application has been determined to be incomplete or any other request for information that is sent under
par. (d) shall state the reason for the determination or request and the specific items of information that are still needed.
281.36(3m)(f)
(f)
Failure to meet time limits. If the department fails to meet the 30-day time limit under
par. (c) or 10-day time limit under
par. (d), the application shall be considered to have a date of closure that is the last day of that 30-day or 10-day time period for purposes of
par. (g) 1.
281.36(3m)(g)1.1. Within 15 days after the date of closure, as determined under
par. (c) or
(d), the department shall provide notice of pending application to interested members of the public. If the applicant has requested a public informational hearing as part of the submitted application, a notice of the public hearing shall be part of the notice of pending application.
281.36(3m)(g)2.
2. If the notice of pending application does not contain a notice of public informational hearing, any person may request a public informational hearing in writing or the department may decide to hold a public informational hearing with or without a request being submitted if the department determines that there is a significant public interest in holding a hearing.
281.36(3m)(h)
(h)
Request for hearing. A request for a public informational hearing under
par. (g) 2. must be submitted to the department or the department's decision to hold a public informational hearing must occur within 20 days after the department provides the notice of pending application. The department shall provide notice of public informational hearing within 15 days after the request for the public hearing is submitted or the department makes its decision to hold a public informational hearing.
281.36(3m)(i)
(i)
Decision. Within 20 days after the period for public comment under
par. (j) has ended or if no public informational hearing is held, within 30 days after the 30-day comment period under
par. (j) has ended, the department shall render a decision issuing or denying the wetland individual permit that is the subject of the application submitted under
par. (a). If the decision issued by the department under this paragraph is a denial, the department shall include in the decision the specific grounds and reasons as to how the applicable provisions of this section were not met. If the denial is based on an incomplete application, the department shall inform the applicant of the areas of the application that were incomplete.
281.36(3m)(j)1.1. The department shall provide a period for public comment after the department has provided a notice of pending application under
par. (g) during which time any person may submit written comments with respect to the application for a wetland individual permit. The department shall retain all of the written comments submitted during this period and shall consider all of the comments in rendering a decision on the application. The period for public comment shall end on the 30th day following the date on which the department provides the notice of pending application except as provided in
subd. 2.
281.36(3m)(j)2.
2. If a public informational hearing is held, the period for public comment shall end on the 10th day following the date on which the hearing is completed.
281.36(3n)(a)(a)
Review limits. For the purpose of issuing a wetland individual permit, during the period between the date on which the application under
sub. (3m) (a) is submitted and the date on which a decision under
sub. (3m) (i) is rendered, the department shall conduct its review under this subsection. The department shall review the analysis of practicable alternatives presented in the application under
sub. (3m) (b). The department shall limit its review to those practicable alternatives that are located at the site of the discharge and that are located adjacent to that site if the applicant has demonstrated that the proposed project causing the discharge will result in a demonstrable economic public benefit, that the proposed project is necessary for the expansion of an existing industrial, commercial, or agricultural facility that is in existence at the time the application is submitted, or that the proposed project will occur in an industrial park that is in existence at the time the application is submitted.
281.36(3n)(b)
(b)
Factors used in review. In its review under
par. (a), the department shall consider all of the following factors when it assesses the impacts to wetland functional values:
281.36(3n)(b)1.
1. The direct impacts of the proposed project to wetland functional values.
281.36(3n)(b)2.
2. The cumulative impacts attributable to the proposed project that may occur to wetland functional values based on past impacts or reasonably anticipated impacts caused by similar projects in the area affected by the project.
281.36(3n)(b)3.
3. Potential secondary impacts of the proposed project to wetland functional values.
281.36(3n)(b)4.
4. The impact on functional values resulting from the mitigation that is required under
sub. (3r).
