Chapter 295

295.60(5)(a)5. 5. Habitat for aquatic organisms in the food web including fish, crustaceans, mollusks, insects, annelids, and planktonic organisms and the plants and animals upon which these aquatic organisms feed and depend upon for their needs in all life stages.

295.60(5)(a)6. 6. Habitat for resident and transient wildlife species, including mammals, birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel corridors, and food.

295.60(5)(a)7. 7. Recreational, cultural, educational, scientific, and natural scenic beauty values and uses.

295.60(5)(b) (b) All of the following shall be minimized in order to avoid significant adverse impacts for the purpose of maintaining or enhancing the wetland functional values identified under par. (a), and any minimization of the following must be taken into account in the department’s evaluation of significant adverse impacts:

295.60(5)(b)1. 1. The use of liquids, fill, or other solids or gases.

295.60(5)(b)2. 2. The presence of floating or submerged debris, oil, or other material.

295.60(5)(b)3. 3. The use of materials producing color, odor, taste, or unsightliness.

295.60(5)(b)4. 4. The presence of concentrations or combinations of substances that are toxic or harmful to human, animal, or plant life.

295.60(5)(b)5. 5. Adverse effects on hydrological conditions necessary to support the biological and physical characteristics that are naturally present in wetlands. For purposes of this subdivision, the hydrological conditions include all of the following:

295.60(5)(b)5.a. a. Water currents and erosion and sedimentation patterns.

295.60(5)(b)5.b. b. Water temperature variations.

295.60(5)(b)5.c. c. The chemical, nutrient, and dissolved oxygen regime of the wetland.

295.60(5)(b)5.d. d. The movement of aquatic fauna.

295.60(5)(b)5.e. e. The pH of the wetland.

295.60(5)(b)5.f. f. Water levels or elevations.

295.60(5)(b)6. 6. Adverse effects on existing habitat and populations of animals and vegetation found in wetlands.

295.60(6) (6) Decision by department.

295.60(6)(a) (a) The department shall make a finding that a discharge of dredged material or fill material is in compliance with all applicable water quality standards and shall issue a wetland individual permit if the department determines that all of the following apply:

295.60(6)(a)1. 1. The proposed project of which the discharge is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

295.60(6)(a)2. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

295.60(6)(a)3. 3. The proposed discharge will not result in significant adverse impact to wetland functional values, subject to par. (b); in significant adverse impact to water quality; or in other significant adverse environmental consequences.

295.60(6)(b) (b) Notwithstanding par. (a) 3., if significant adverse impacts to wetland functional values will remain after the adverse impacts have been avoided and minimized to the extent practicable, the department shall issue the permit if the department determines that the remaining impacts will be compensated for under a mitigation program under sub. (8).

295.60(6)(c) (c) The department may not deny an approval for an activity for which a wetland impact evaluation is required, other than a discharge of dredged material or fill material, on the basis of the impacts from the activity on wetlands if the department determines that all of the following apply:

295.60(6)(c)1. 1. The proposed project of which the activity is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

295.60(6)(c)2. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

295.60(6)(c)3. 3. The proposed activity will not result in significant adverse impact to wetland functional values, subject to par. (d); in significant adverse impact to water quality; or in other significant adverse environmental consequences.

295.60(6)(d) (d) Notwithstanding par. (c) 3., if significant adverse impacts to wetland functional values will remain after the adverse impacts have been avoided and minimized to the extent practicable, the department may not deny the permit on the basis of the impacts from the activity on wetlands if the department determines that the remaining impacts will be compensated for under a mitigation program under sub. (8).

295.60(6)(e) (e) Paragraphs (a) to (d) do not apply to authorizations to proceed under a general permit issued under s. 281.36 (3g).

295.60(7) (7) Federal wetlands.

295.60(7)(a) (a) For a wetland individual permit under this section which involves a federal wetland or for any other approval for which a wetland impact evaluation for a federal wetland is required, any mitigation program submitted by the applicant under sub. (8) shall include all the federal mitigation measures proposed by the applicant. The department shall review the federal mitigation measures and shall determine whether it has reasonable assurance that these will compensate for any significant adverse impacts to wetland functional values, any significant adverse impacts to water quality, and any other significant adverse environmental consequences. The department shall recognize all federal compensatory mitigation measures as being eligible for the purpose of making this determination. If the department determines that reasonable assurance exists, the department may not impose any additional conditions on the permit or other approval. If the department determines that reasonable assurance does not exist, it may impose conditions on the permit or other approval that are in addition to required federal compensatory mitigation measures, but such conditions shall be limited to those that are necessary to compensate for any significant adverse impacts to wetland functional values, any significant adverse impacts to water quality, and any other significant adverse environmental consequences that will remain after completion of the federal mitigation measures. Any conditions imposed by the department may be satisfied through a mitigation program as provided in sub. (8). In imposing any conditions under this paragraph, the department may not require that the number of acres to be mitigated be greater than the number that is required under federal law.

295.60(7)(b) (b) A wetland individual permit issued under this section that authorizes a discharge of dredged or fill material in a federal wetland constitutes water quality certification as required by 33 USC 1341 (a). Any other approval issued by the department for which a wetland impact evaluation is required for a federal wetland constitutes water quality certification under 33 USC 1341 (a) with respect to the discharges or activities affecting the federal wetland.

295.60(8) (8) Mitigation program.

295.60(8)(a) (a) Definition. Notwithstanding s. 295.60 (1) (i), in this section “water basin” means the Lake Michigan basin, the Lake Superior basin, or the Mississippi River basin.

295.60(8)(am) (am) Contents. A mitigation program to compensate for adverse impacts to functional values of wetlands shall contain proposed projects for mitigation and a schedule for implementing the projects. The department may not consider mitigation in determining whether to grant authorization to proceed under a general permit under s. 281.36 (3g). These projects may be performed by a person other than the applicant, subject to the department’s approval of the projects and schedule.

295.60(8)(b) (b) Option of applicant. An applicant submitting a program under par. (am) may submit options for mitigation. These options may include any combination of the types of mitigation specified in par. (dm). In preparing the program, the applicant shall identify and consider mitigation that could be conducted within the same watershed in which the mining site is located.

295.60(8)(c) (c) Ratios for mitigation. The amount of mitigation required may not exceed 1.5 acres of mitigation for each acre of adversely impacted wetland. For purpose of credits in a mitigation bank, each acre that is subject to mitigation shall count as at least one credit.

295.60(8)(d) (d) Sequence of mitigation. If it is not practicable or ecologically preferable to conduct mitigation at an on-site location or if there is no on-site location that will provide sufficient wetland acreage, the department shall require that the applicant conduct mitigation within the same watershed in which the wetland to be affected is located, unless mitigation in the same watershed is not practicable or ecologically preferable. If mitigation within the same watershed is not practicable or ecologically preferable, the department shall require that the applicant conduct mitigation within the same water basin in which the wetland to be affected is located. If mitigation in the same water basin is not practicable or ecologically preferable, the applicant may conduct mitigation at a site elsewhere in the state.

295.60(8)(dm) (dm) Types of mitigation. Mitigation under a program under par. (am) may be accomplished through any of the following types:

295.60(8)(dm)1. 1. Implementation of a project for mitigation by an applicant or other person approved by the department.

295.60(8)(dm)2. 2. Purchase of mitigation credits from a mitigation bank for a site in a mitigation bank that is located anywhere in the state, subject to par. (e).

295.60(8)(dm)3. 3. Purchase of mitigation credits from a mitigation bank established prior to February 1, 2002, if the department determines that the bank sponsor is in compliance with any applicable memorandum of understanding between the bank sponsor and the department.

295.60(8)(dm)4. 4. Participation in the in lieu fee subprogram under s. 281.36 (3r) (e).

295.60(8)(e) (e) Ceded territory. If a mining operation is located in whole or in part within the ceded territory, any mitigation, including mitigation accomplished through the purchase of mitigation bank credits and the in lieu fee subprogram that is authorized or required by the department, that will be required to compensate for adverse impacts to wetlands located in the ceded territory shall occur within the ceded territory. If the department determines under par. (d) that mitigation will occur within a certain watershed or water basin and if the watershed or water basin is not located totally in the ceded territory, the mitigation shall occur within that part of the watershed or water basin that is located in the ceded territory.

295.60(9) (9) Subsequent protection for wetlands.

295.60(9)(a) (a) If a wetland individual permit issued under this section, or other approval that required a wetland impact evaluation, authorizes a mitigation project, the person who is the holder of the permit or approval 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 suspend the mining permit if the holder of the permit fails to grant the easement or execute this instrument within the time limit set forth in the mining permit. If the holder subsequently grants the conservation easement or executes the instrument, the department shall reinstate the mining permit.

295.60(9)(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:

295.60(9)(b)1. 1. The department determines that part or all of a wetland subject to the mitigation project ceases to be a wetland.

295.60(9)(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.

295.60(9)(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.

295.60(10) (10) Exemptions.

295.60(10)(a) (a) Artificial wetlands. All of the following artificial wetlands that are associated with a mining operation or bulk sampling are exempt from the wetland individual permit and mitigation requirements under this section, from the general permit requirements under s. 281.36 (3g), and from any requirement for any other approval for which a wetland impact evaluation is required:

295.60(10)(a)1. 1. An artificial wetland that is a sedimentation or stormwater detention basin or associated conveyance feature operated and maintained only for sediment detention and flood storage purposes.

295.60(10)(a)2. 2. An artificial wetland that is an active sewage lagoon, cooling pond, waste disposal pit, fish rearing pond, or landscape pond.

295.60(10)(a)3. 3. An artificial wetland that is an actively maintained farm drainage or roadside ditch.

295.60(10)(a)4. 4. An artificial wetland as part of an active mining operation.

295.60(10)(b) (b) Other exempted activities. All of the following activities that are associated with a mining operation or bulk sampling are exempt from the wetland individual permit and mitigation requirements under this section, from the general permit requirements under s. 281.36 (3g), and from any requirement for any other approval for which a wetland impact evaluation is required if the applicant minimizes any adverse effect on the environment as a result of any of these activities:

295.60(10)(b)1. 1. Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a wetland.

295.60(10)(b)2. 2. Construction or maintenance of irrigation ditches.

295.60(10)(b)3. 3. 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.

295.60(10)(b)4. 4. Maintenance of drainage ditches.

295.60(10)(c) (c) An exemption under par. (a) or (b) does not apply to a federal wetland if the exemption conflicts with 33 USC 1344.

295.60(11) (11) Relationship to other laws. None of the following apply to a mining operation or bulk sampling:

295.60(11)(a) (a) Section 281.36, except as otherwise specifically provided in this section.

295.60(11)(b) (b) Any rule promulgated under s. 281.36, except as otherwise specifically provided in this section.

295.60(11)(c) (c) Any other rule promulgated by the department that relates to wetlands that conflicts with this section.

295.60 History History: 2013 a. 1; 2013 a. 168 s. 21; 2015 a. 196; 2019 a. 59.

295.605 295.605 Impacts to navigable waters.

295.605(1) (1) Definition. In this section, “navigable water activity” means an activity for which an approval is required under s. 30.12, 30.123, 30.19, 30.195, or 30.20.

295.605(1m) (1m) Limitation. This section does not apply to any navigable water activity associated with a mining operation if the application for the approval for the navigable water activity is filed after the department issues a mining permit for the mining operation.

295.605(2) (2) Approval required. No person may engage in any navigable water activity associated with bulk sampling or mining unless the person has been granted an approval as provided under sub. (4).

295.605(3) (3) Application; riparian status.

295.605(3)(a) (a) For purposes of an approval under ss. 30.12, 30.123, 30.19, 30.195, and 30.20, a person who is not the owner of a piece of riparian property may exercise a riparian right held by the owner of the piece of riparian property if any of the following apply:

295.605(3)(a)1. 1. The person leases the piece of riparian property from the owner.

295.605(3)(a)2. 2. The person holds an easement on the piece of riparian property and the easement authorizes the person to exercise that riparian right.

295.605(3)(b) (b) If a person is applying for more than one approval for a navigable water activity, the person may file a single application. The application shall include any information requested by the department under s. 295.45 (3).

295.605(4) (4) Requirements.

295.605(4)(a) (a) Generally. The department shall grant an approval for a navigable water activity if the navigable water activity meets all of the following requirements:

295.605(4)(a)1. 1. The navigable water activity will not significantly impair public rights and interests in a navigable water.

295.605(4)(a)2. 2. The navigable water activity will not significantly reduce the effective flood flow capacity of a stream.

295.605(4)(a)3. 3. The navigable water activity will not significantly affect the rights of riparian owners or the applicant obtains the consent of the riparian owners.

295.605(4)(a)4. 4. The navigable water activity will not significantly degrade water quality.

295.605(4)(b) (b) Measures. The person applying for the approval shall submit a plan to the department containing proposed measures to meet the requirements under par. (a) and a proposed schedule for implementing the measures. The plan shall include one or more of the following measures:

295.605(4)(b)1. 1. Measures to offset significant impacts to navigable waters by providing public access to, restoring, or enlarging up to 1.5 acres, but not less than one acre, of navigable waters in exchange for each acre of navigable waters that is significantly impacted.

295.605(4)(b)2. 2. Measures to improve public rights or interests in navigable waters.

295.605(4)(b)3. 3. Measures to offset significant impacts to water quality or quantity.

295.605(4)(b)4. 4. Measures to enhance flood storage.

295.605(4)(b)5. 5. A mitigation program as provided under s. 295.60 (8).

295.605(4)(b)6. 6. Conservation measures as provided in s. 295.61.

295.605(4)(bg) (bg) Measures excluded from consideration. In determining if a navigable water activity meets the requirements under par. (a) with regard to a navigable water, the department may not consider any proposed measure under par. (b) if the navigable water is any of the following: