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, with respect to a discharge that is exempt from permitting requirements under sub.
(4n) (b) that affects more than 10,000 square feet of wetland or under sub.
(4n) (c) that affects more than 1.5 acres of wetland, the portion of the affected wetland that exceeds 10,000 square feet or 1.5 acres, respectively. Under the mitigation program, subject to par.
(am), the department shall allow 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)(am)
(am) For a discharge that is exempt from permitting requirements under sub.
(4n) (b) or
(c), any off-site mitigation, including any mitigation conducted by a mitigation bank or under the in lieu fee subprogram, shall be completed within the same compensation search area, as defined by the department by rule, as 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(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; certain activities. 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)(am)
(am) Normal aquaculture activities, if the discharge is to a wetland created for aquacultural purposes in an area without any prior wetland history. In this paragraph, “normal aquaculture activities” includes all of the following:
281.36(4)(am)1.
1. Construction, maintenance, or repair of ponds, raceways, or other similar retention structures used in fish farms.
281.36(4)(am)2.
2. The filling in or drawing down of ponds, raceways, or other similar retention structures used in fish farms.
281.36(4)(am)3.
3. Maintenance or improvement of swales or other drainage areas into or out of ponds used in fish farms.
281.36(4)(am)4.
4. Maintenance, repair, or replacement of drains, pipes, or other flowage controls used in fish farms.
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, roads used in fish farms, 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(4)(f)
(f) Maintenance, operation, or abandonment of a sedimentation or stormwater detention basin and associated conveyance features that were not originally constructed in a wetland.
281.36(4m)
(4m)
Exemption and waiver; electronics and information technology manufacturing zone. 281.36(4m)(a)
(a) The permitting requirement under sub.
(3b) does not apply to any discharge into a wetland located in an electronics and information technology manufacturing zone designated under s.
238.396 (1m) if the discharge is related to the construction, access, or operation of a new manufacturing facility in the zone and all adverse impacts to functional values of wetlands are compensated at a ratio of 2 acres per each acre impacted through any of the following methods, consistent with the rules promulgated under this section:
281.36(4m)(a)1.
1. Purchasing credits from a mitigation bank located in this state.
281.36(4m)(a)2.
2. Participating in the in lieu fee subprogram under sub.
(3r), under which the department shall identify and consider mitigation that could be conducted within the same watershed and may locate mitigation outside the watershed only upon agreement of the department and the person exempt from permitting under this subsection.
281.36(4n)
(4n)
Exemptions; certain nonfederal wetlands and artificial wetlands. 281.36(4n)(a)1.
1. “Artificial wetland" means a landscape feature where hydrophitic vegetation may be present as a result of human modification to the landscape or hydrology and for which the department has no definitive evidence showing a prior wetland or stream history that existed before August 1, 1991, but does not include any of the following:
281.36(4n)(a)1.a.
a. A wetland that serves as a fish spawning area or a passage to a fish spawning area.
281.36(4n)(a)2.
2. “Definitive evidence” means documentary evidence such as any of the following:
281.36(4n)(a)3.
3. “Rare and high quality wetland” means a wetland that is directly adjacent or contiguous to a class I or class II trout stream or that consists of 75 percent or more of any of the following wetland types:
281.36(4n)(b)
(b) Subject to par.
(e), the permitting requirement under sub.
(3b) does not apply to any discharge into a nonfederal wetland that occurs in an urban area and to which all of the following apply:
281.36(4n)(b)1.
1. The discharge does not affect more than one acre of wetland per parcel.
281.36(4n)(b)2.
2. The discharge does not affect a rare and high quality wetland.
281.36(4n)(b)3.
3. The development related to the discharge is carried out in compliance with any applicable storm water management zoning ordinance enacted under s.
59.693,
60.627,
61.354, or
62.234 or storm water discharge permit issued under s.
283.33.
281.36(4n)(c)
(c) Subject to par.
(e), the permitting requirement under sub.
(3b) does not apply to any discharge into a nonfederal wetland that occurs outside an urban area and to which all of the following apply:
281.36(4n)(c)1.
1. The discharge does not affect more than 3 acres of wetland per parcel.
281.36(4n)(c)2.
2. The discharge does not affect a rare and high quality wetland.
281.36(4n)(c)3.
3. The development related to the discharge is a structure, such as a building, driveway, or road, with an agricultural purpose.
281.36(4n)(d)
(d) Subject to par.
(e), the permitting requirement under sub.
(3b) does not apply to any discharge into an artificial wetland.
281.36(4n)(e)1.1. A person who proposes a project that may affect a wetland or landscape feature under par.
(b),
(c), or
(d) shall notify the department no fewer than 15 working days before initiating the project. The notice shall include one of the following to show that the wetland or landscape feature is eligible for the relevant exemption:
