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.
281.36(3r)(d)1.1. The department shall establish under the mitigation program mitigation ratios that are consistent, to the greatest extent possible, with the federal regulations that apply to mitigation and mitigation banks but, unless
subd. 2. applies, the minimum ratio shall be at least 1.2 acres for each acre affected by the discharge.
281.36(3r)(d)2.
2. For mitigation that occurs within the same watershed in which the discharge is located or within one-half mile of the site of the discharge, the ratio established by the department shall equal 90 percent of the ratio that would apply if the mitigation were to occur outside the watershed or were to occur one-half mile or more from the site of the discharge, but the ratio established under this subdivision may be no less than 1.2 acres for each acre affected by the discharge.
281.36(3r)(e)
(e) As part of the mitigation program established under
par. (a), the department may establish an in lieu fee subprogram, under which payments are made to the department or another entity for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features. The subprogram must be approved by the U.S. army corps of engineers. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the subprogram shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community. The subprogram shall be consistent with federal regulations.
281.36(3s)(a)(a) As part of the mitigation program established under
sub. (3r) (a), the department shall establish an escrow subprogram. Under the subprogram, an applicant who is eligible for a wetland individual permit that will affect a nonfederal wetland may establish an escrow account or similar account into which the applicant deposits funds that are limited to being used to purchase credits from a mitigation bank located in this state. The applicant shall establish the account before the wetland individual permit is issued.
281.36(3s)(b)
(b) An account may be established under the escrow subprogram only if all of the following apply:
281.36(3s)(b)1.
1. There are fewer than 10 mitigation credits available from a federally approved wetland mitigation bank that is located in the state on the date a decision to issue a wetland individual permit is rendered under
sub. (3m) (i).
281.36(3s)(b)2.
2. A statewide in lieu fee subprogram approved by the U.S. army corps of engineers is not in effect on the date a decision to issue a wetland individual permit is rendered under
sub. (3m) (i).
281.36(3s)(c)
(c) To qualify as an account under the escrow subprogram, all of the following shall apply:
281.36(3s)(c)2.
2. A permit holder may not be authorized to withdraw funds under the terms of the account except as provided in
par. (f).
281.36(3s)(c)3.
3. The department must be authorized under the terms of the account to withdraw funds from the account for purchase of mitigation credits under
par. (g) and to withdraw funds and close the account under
par. (h).
281.36(3s)(d)
(d) The department shall establish requirements for calculating the amounts that must be placed in the accounts established under the escrow subprogram for mitigation payments and for any other fees that are necessary to cover the costs of banks or other agents in managing these accounts. For each account to be established, the department shall determine the number of mitigation credits to be purchased and shall estimate the cost of each credit to be purchased. The estimated cost shall be based on the market price, as determined by the department, for the purchase of an equivalent credit from a mitigation bank located in this state.
281.36(3s)(e)
(e) No person may withdraw funds that are deposited in an account established under the escrow subprogram unless
par. (f),
(g), or
(h) applies.
281.36(3s)(f)
(f) A permit holder shall withdraw funds from an account to purchase mitigation credits if the department notifies the permit holder that mitigation credits are available from a mitigation bank that is located in this state. The permit holder shall purchase the mitigation credits within 30 days after the notification.
281.36(3s)(g)
(g) If a permit holder fails to purchase the mitigation credits within the 30-day period specified under
par. (f), the department may withdraw funds from the account to purchase the credits.
281.36(3s)(h)
(h) Upon approval of the statewide in lieu fee subprogram under
sub. (3r) (e) by the U.S. army corps of engineers, the department shall discontinue the escrow subprogram by withdrawing all of the funds from all of the accounts established under the escrow subprogram, closing the accounts, and transferring all of the withdrawn funds to the in lieu fee subprogram under
sub. (3r) (e).
281.36(3t)
(3t) Rules for mitigation. The department shall promulgate rules to establish a process for the mitigation program under
sub. (3r). The rules shall address all of the following:
281.36(3t)(a)
(a) Requirements for the analysis of practicable alternatives that is included in an application for a wetland individual permit under
sub. (3m) (b).
281.36(3t)(b)
(b) The conditions under which credits may be purchased from a mitigation bank to comply with the mitigation program under
sub. (3r).
281.36(3t)(c)
(c) Enforcement of requirements under the mitigation program under
sub. (3r) that apply to mitigation projects and mitigation banks.
281.36(3t)(d)
(d) Baseline studies of wetlands that will be affected by the discharges and of sites for mitigation projects.
281.36(3t)(e)
(e) Plan and design requirements for mitigation projects and mitigation bank sites, which shall include requirements for relating the design of a mitigation project or a mitigation bank site to the hydrology of the watershed in which a mitigation project or mitigation bank site is located.
281.36(3t)(f)
(f) Standards for comparing wetlands that will be restored, enhanced, created, or preserved as a mitigation project or at a mitigation bank site to the wetlands that will be adversely affected by discharges, including all of the following:
281.36(3t)(f)1.
1. Consideration of the size, location, type and quality of the
wetlands.
281.36(3t)(f)2.
2. Consideration of the functional values performed by the
wetlands.
281.36(3t)(h)
(h) Standards for measuring the short-term and long-term success of mitigation projects and mitigation bank sites and requirements for the short-term and long-term monitoring of mitigation projects and mitigation bank sites.
281.36(3t)(i)
(i) Remedial actions to be taken by holders of wetland individual permits for mitigation projects that are not successful and actions to be taken by mitigation banks for mitigation projects performed by the mitigation banks that are not successful.
281.36(4)
(4) Exemptions. Except as provided in
sub. (5), the permitting requirement under
sub. (3b) 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 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 wetland are not impaired.
281.36(4)(e)2.
2. That the reach of the affected wetland is not reduced.
281.36(4)(e)3.
3. That any adverse effect on the aquatic environment of the affected 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 permitting requirement under
sub. (3b) if the discharge is incidental to an activity that has as its purpose bringing a wetland, or part of a 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 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 or interpretation.
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(8m)
(8m) Subsequent protection for wetlands. 281.36(8m)(a)1.1. A person who is the holder of a wetland individual permit that authorizes a mitigation project shall grant a conservation easement under
s. 700.40 to the department or shall execute a comparable legal instrument to ensure that a wetland that is being restored, enhanced, created, or preserved 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 wetland individual permit if the holder of the individual permit fails to take these measures.
281.36(8m)(a)2.
2. A person who is restoring, enhancing, creating, or preserving 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 or shall execute a comparable legal instrument 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.
281.36(8m)(b)
(b) Notwithstanding
par. (a), the department shall modify or release a conservation easement granted under
par. (a) or shall void a comparable legal instrument executed under
par. (a) if all of the following apply:
281.36(8m)(b)1.
1. The department determines that part or all of the restored, enhanced or created wetland ceases to be a wetland.
281.36(8m)(b)2.
2. The person who is required to grant the conservation easement or execute the legal instrument did not contribute to the loss of the wetland specified in
subd. 1.
281.36(8m)(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.
281.36(9)(a)(a) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under
sub. (4) is appropriate, and 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 wetland or part of a wetland, for which an application has been submitted under
sub. (3g) or
(3m).
281.36(9)(a)2.
2. Enter and inspect any property on which is located a wetland to investigate a discharge 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 a holder of a wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.
281.36(9)(d)
(d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under
par. (a).
