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from all of the accounts established under the escrow subprogram, closing the accounts, and transferring all of the withdrawn funds to the in lieu fee subprogram under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).
281.36(9)(e)
(e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:
281.36(9)(e)2.
2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.
281.36(10)
(10) Additional requirements. The requirement of being issued a wetland individual permit or proceeding under the authority of a wetland general permit under this section is in addition to any permit or other approval required by the department for a project or activity that involves a discharge into a wetland. This section governs the determination of whether a discharge is in compliance with water quality standards but does not affect the authority of the department to otherwise regulate the discharge of dredged or fill material in a wetland under
ss. 59.692,
61.351,
61.353,
62.231,
62.233,
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(11)(a)(a) The department shall set a surcharge fee to be charged for each application to proceed under a wetland general permit that is issued under
sub. (3g) (a) 4.,
5., or
6. The surcharge fee shall be set on an annual basis by the department and may not exceed more than 50 percent of the market price, as determined by the department, for the equivalent purchase of credits from a mitigation bank. These fees shall be credited to the appropriation account under
s. 20.370 (4) (bm) for the restoration and creation of wetlands. The department may enter into agreements with other entities for the restoration and creation of such wetlands.
281.36(11)(b)
(b) Any wetland that is restored or created using funding from the appropriation under
s. 20.370 (4) (bm) 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.
281.36(12)(a)(a)
Fees required. The department shall charge a fee for reviewing, investigating, and making decisions on applications to proceed under wetland general permits under
sub. (3g) and on applications for wetland individual permits under
sub. (3m). For an authorization to proceed under a wetland general permit, the application fee shall be $500. For a wetland individual permit, the application fee shall be $800.
281.36(12)(b)
(b)
Additional fee. The department may set and charge a fee in the amount necessary to meet the costs incurred by the department in reviewing mitigation that is conducted by mitigation banks.
281.36(12)(c)1.1. The department shall refund an application fee charged for a wetland individual permit under
par. (a) if the applicant requests a refund before the department determines that the application is complete. The department may not refund a fee after the department determines that the application is complete unless required to do so under a rule promulgated under
s. 299.05.
281.36(12)(c)2.
2. If the applicant submits an application for authorization to proceed under a wetland general or a wetland individual permit after the discharge is begun or after it is completed, the department shall charge an amount equal to twice the amount of the fee that it would have charged under this section.
281.36(12)(c)3.
3. The department may increase the fee specified in
par. (a) only if the increase is necessary to meet the costs of the department in performing the activities for which the fee is charged.
281.36(12)(d)1.1. The department, by rule, may charge a supplemental fee that is in addition to a fee charged under this subsection if all of the following apply:
281.36(12)(d)1.a.
a. The applicant requests in writing that the decision on the application be issued within a time period that is shorter than the time limit promulgated under
subd. 2. for the decision.
281.36(12)(d)1.b.
b. The department verifies that it will be able to comply with the request.
281.36(12)(d)2.
2. If the department promulgates a rule under
subd. 1., the rule shall contain a time limit for making decisions on the application.
281.36(12)(e)
(e)
Exemptions from fees. Paragraphs (a),
(b),
(c), and
(d) do not apply to any federal agency or state agency.
281.36(13)(a)(a) Whoever is concerned in the commission of a violation of this section for which a forfeiture is imposed is a principal and may be charged and found in violation although he or she did not directly commit the violation and although the person who directly committed it has not been found in violation.
281.36(13)(b)
(b) A person is concerned in the commission of the violation if the person does any of the following:
281.36(13)(b)3.
3. Is a party to a conspiracy with another to commit the violation or advises, hires, counsels, or otherwise procures any person to commit it.
281.36(13m)
(13m) 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 mitigation on wetland resources and on the issuance of permits or other approvals under
ss. 59.692,
61.351,
61.353,
62.231,
62.233,
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.
281.36(14)(a)(a) Except as provided in
par. (b), any person who violates any provision of this section shall forfeit not less than $100 nor more than $10,000 for the first offense and shall forfeit not less than $500 nor more than $10,000 upon being found in violation of the same offense a 2nd or subsequent time.
281.36(14)(b)
(b) Any person who violates a wetland general permit issued under
sub. (3g) shall forfeit not less than $10 nor more than $500 for the first offense and shall forfeit not less than $50 nor more than $500 upon being found in violation of the same offense a 2nd or subsequent time.
281.36(14)(c)
(c) A violation of any condition contained in a wetland general permit issued under
sub. (3g) is a violation of the statute under which the general permit was issued.
281.36(14)(d)
(d) In addition to the forfeitures specified under
pars. (a) and
(b), a court may order a defendant to abate any nuisance, restore a natural resource, or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the defendant.
281.36(14)(e)
(e) Each day of a continuing violation is a separate offense.
281.36(14)(f)
(f) The department may follow the procedures for the issuance of a citation under
ss. 23.50 to
23.99 to collect a forfeiture for a violation of this section.
281.36 History
History: 2001 a. 6;
2005 a. 253;
2011 a. 118, ss.
43,
45 to
47,
49 to
55,
57 to
118,
122,
123,
127 to
137,
141;
2013 a. 1,
20,
69,
80;
2013 a. 151 s.
27;
2013 a. 166 s.
77;
2013 a. 168,
173.
281.36 Cross-reference
Cross-reference: See also ch.
NR 300,
351,
352, and
353, Wis. adm. code.
281.36 Annotation
Wisconsin's Wetland Reform Act. Kent and Jordan. Wis. Law. Feb. 2013.
281.36 Annotation
Once a violation of former sub. (2) (a) (renumbered and amended to be sub. (3b) (b)) is proven,
Forest County v. Goode,
219 Wis. 2d 654, sets forth a rebuttable presumption that the court should grant an injunction. The state is not required to prove particular instances of environmental harm to obtain an injunction. Once a violation is proven, it is the defendant who must establish compelling equitable reasons not to grant injunctive relief. State v. CGIP Lake Partners, LLP,
2013 WI App 122,
351 Wis. 2d 100,
839 N.W.2d 136,
12-2346.
WATER AND SEWAGE FACILITIES; SEPTAGE DISPOSAL
281.41
281.41
Approval of plans.
