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).
281.36(3n)(b)5.
5. The net positive or negative environmental impact of the proposed project.
281.36(3n)(c)
(c)
Standards for issuing permits. The department shall make a finding that a proposed project causing a discharge is in compliance with water quality standards and that a wetland individual permit may be issued if the department determines that all of the following apply:
281.36(3n)(c)1.
1. The proposed project represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.
281.36(3n)(c)2.
2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.
281.36(3n)(c)3.
3. The proposed project will not result in significant adverse impact to wetland functional values, in significant adverse impact to water quality, or in other significant adverse environmental consequences.
281.36(3n)(d)
(d)
Mitigation required. The department shall require mitigation under the program established under
sub. (3r) for wetland individual permits it issues under this subsection. This subsection does not entitle an applicant to a wetland individual permit or any other approval in exchange for conducting mitigation.
281.36(3p)
(3p) Notice requirements; wetland individual permits. 281.36(3p)(a)(a) The department shall establish procedures for providing notices of pending applications and notices of public informational hearings to be provided under
sub. (3m) and notices of administrative hearings under
sub. (3q). The procedures shall require all of the following:
281.36(3p)(a)2.
2. That the notice be provided to any person or group upon request of the person or group.
281.36(3p)(a)3.
3. That the notice be published on the department's Internet Web site.
281.36(3p)(b)
(b) The department shall prescribe the form and content of notices of pending applications and notices of public informational hearings to be provided under
sub. (3m) and notices of administrative hearings under
sub. (3q). Each notice shall include all of the following information:
281.36(3p)(b)2.
2. A brief description of the discharge that requires the permit and the project that includes the discharge.
281.36(3p)(b)3.
3. For a notice of a public informational hearing, the time, date, and location of the hearing.
281.36(3p)(b)4.
4. For a notice of pending application and a notice of a public informational hearing, a brief, precise, easily understandable, plain-language description of the discharge and information indicating where the pending application may be viewed on the department's Internet Web site.
281.36(3p)(b)5.
5. For a notice of complete application and a notice of a public informational hearing, a statement of the tentative determination of the department on the permit.
281.36(3p)(b)6.
6. For a notice of complete application and a notice of public informational hearing, a brief description of the procedures for the formulation of final determinations, including a description of the comment period required under
sub. (3m) (j).
281.36(3p)(c)
(c) For the purpose of determining the date on which notice is provided under this subsection, the date of the notice shall be the date on which the department first publishes the notice on its Internet Web site.
281.36(3p)(d)1m.1m. The department may delegate the department's requirement to provide notice under
sub. (3m) in the manner specified in
par. (a) 1. and
2. by doing any of the following:
281.36(3p)(d)1m.a.
a. Requiring that the applicant for the permit provide by publication, mailing, or other distribution one or more of the notices.
281.36(3p)(d)1m.b.
b. Requiring that the applicant for the permit pay for the publication, mailing, or any other distribution costs of providing one or more of the notices.
281.36(3p)(d)2m.
2m. If, under
subd. 1m., the department delegates to an applicant the requirement to provide notice under
sub. (3m) by publishing a class 1 notice under
ch. 985, the applicant may in lieu of publishing the class 1 notice request that the department publish the class 1 notice. The department shall charge the applicant a fee for publishing the class 1 notice in an amount that equals the average cost to the department for publishing under this chapter class 1 notices under
ch. 985.
281.36(3q)
(3q) Administrative and judicial review. 281.36(3q)(a)(a)
Definition. In this subsection, "applicant" means any person applying for a wetland individual permit under this section or any person who has been issued such a permit under this section.
281.36(3q)(b)
(b)
Request for administrative review. Any interested person may file a petition with the department for administrative review within 30 days after any of the following decisions given by the department:
281.36(3q)(b)1.
1. The issuance, denial, or modification of any wetland individual permit issued under this section.
281.36(3q)(b)2.
2. The imposition of, or failure to impose, a condition on any wetland individual permit issued under this section.
281.36(3q)(c)
(c)
Content of the petition. If the petitioner is not the applicant, the petition shall describe the petitioner's objection to the wetland individual permit and shall contain all of the following:
281.36(3q)(c)1.
1. A description of the objection that is sufficiently specific to allow the department to determine which provisions of this section may be violated if the proposed discharge under the wetland individual permit is allowed to proceed.
281.36(3q)(c)2.
2. A description of the facts supporting the petition that is sufficiently specific to determine how the petitioner believes the discharge, as proposed, may result in a violation of the provisions of this section.
281.36(3q)(c)3.
3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner's objection.
281.36(3q)(d)1.1. The discharge shall be stayed pending an administrative hearing under this subsection if the petition contains a request for the stay showing that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment.
281.36(3q)(d)2.
2. If a stay is requested under
subd. 1., the stay shall be in effect until either the department denies the request for an administrative hearing or the hearing examiner determines that the stay is not necessary.
281.36(3q)(e)
(e)
Filings. The petitioner shall file a copy of the petition with the department. If the petitioner is not the applicant, the petitioner shall simultaneously provide a copy of the petition to the applicant. The applicant may file a response to the petition with the department. If the applicant files a response under this paragraph, it shall be filed within 15 days after the petition is filed.
281.36(3q)(f)1m.1m. The department shall grant or deny the petition within 30 days after the petition is filed. The failure of the department to dispose of the petition within this 30-day period is a denial. The department shall deny the petition if any of the following applies:
281.36(3q)(f)1m.a.
a. The petitioner is not the applicant, and the petition does not comply with the requirements of
par. (c).
281.36(3q)(f)1m.b.
b. The objection contained in the petition is not substantive. The department shall determine that an objection is substantive if the supporting facts contained in the objection appear to be substantially true and raise reasonable grounds to believe that the provisions of this section may be violated if the activity or project is undertaken.
281.36(3q)(f)3.
3. If the department denies the petition, the department shall send the petitioner the denial in writing, stating the reasons for the denial.
281.36(3q)(f)4.
4. If the department grants a petition under this subsection, the department shall refer the matter to the division of hearings and appeals in the department of administration within 15 days after granting the petition unless the petitioner and the applicant agree to an extension.
281.36(3q)(g)1.1. An administrative hearing under this subsection shall be treated as a contested case under
ch. 227.
281.36(3q)(g)2.
2. If a stay under
par. (d) 1. is in effect, the hearing examiner shall, within 30 days after receipt of the referral under
par. (f) 4., determine whether continuation of the stay is necessary to prevent significant adverse impacts or irreversible harm to the environment pending completion of the administrative hearing. The hearing examiner shall make the determination based on the request under
par. (d) 1., any response from the applicant under
par. (e), and any testimony at a public hearing or any public comments. The determination shall be made without a hearing.
281.36(3q)(g)3.
3. An administrative hearing under this subsection shall be completed within 90 days after receipt of the referral of the petition under
par. (f) 4., unless all parties agree to an extension of that period. In addition, a hearing examiner may grant a one-time extension for the completion of the hearing of up to 60 days on the motion of any party and a showing of good cause demonstrating extraordinary circumstances justifying an extension.
281.36(3q)(g)4.
4. Notwithstanding
s. 227.44 (1), the department shall provide a notice of the administrative hearing at least 30 days before the date of the hearing to all of the following:
281.36(3q)(g)5.
5. In an administrative hearing under this subsection, the petitioner shall proceed first with the presentation of evidence and shall have the burden of proof.
281.36(3q)(h)1.1. Any person whose substantial interest is affected by a decision of the department under
par. (b) 1. or
2. may commence an action in circuit court to review that decision.
281.36(3q)(h)2.
2. Any party aggrieved by a decision of the hearing examiner under
par. (g) may commence an action in circuit court to review that decision.
281.36(3r)
(3r) Mitigation; in lieu fee subprogram. 281.36(3r)(a)(a) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and that allows mitigation to be accomplished by any of the following methods:
281.36(3r)(a)1.
1. Purchasing credits from a mitigation bank located in this state.
281.36(3r)(a)2.
2. Participating in the in lieu fee subprogram, if such a subprogram is established under
par. (e).
281.36(3r)(a)3.
3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.
281.36(3r)(b)
(b) Under the mitigation program, mitigation as specified in
par. (a) 1. and participation in the in lieu fee subprogram, if established under
par. (a) 2. shall be the preferred types of mitigation.
281.36(3r)(c)
(c) The department shall establish a system of service areas for the mitigation banks under the mitigation program that is geographically based on the locations of the major watersheds in the state. The system shall be consistent with federal regulations.
281.36(3r)(cm)
(cm) Before entering into an agreement with a sponsor of a mitigation bank to establish such a bank or before otherwise approving a mitigation bank, the department shall provide written notice that a mitigation bank may be established. The notice shall be given to each city, village, town, and county in which each proposed mitigation bank site will be located. Each city, village, town, and county receiving the notice shall be given an opportunity to submit comments regarding the establishment of the mitigation bank. The notice shall contain all of the following information:
281.36(3r)(cm)2.
2. A brief description of the mitigation bank and all of its bank sites.
281.36(3r)(cm)3.
3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.
