2011 WISCONSIN ACT
118
An Act
to repeal
23.321 (2) (a), 23.321 (3) (a), 23.321 (4) (a) 1., 30.28 (2) (title), 30.28 (2) (a) (intro.), 30.28 (2) (a) 1., 30.28 (2) (a) 2., 30.28 (2) (a) 3., 30.28 (2m) (c), 31.39 (2m) (c), 281.22 (1), 281.22 (2) (c), 281.22 (4), 281.36 (1) (am), 281.36 (1) (bg), 281.36 (1) (c) and (cm), 281.36 (1) (cr), 281.36 (1m), 281.36 (2) (title), 281.36 (2) (b), 281.36 (7), 281.36 (8) (title), 281.36 (8) (a), 281.36 (8) (b), 281.36 (8) (bn) 2., 281.36 (8) (c), 281.36 (8) (d), 281.36 (8) (e), 281.36 (9) (am) to (c), 281.36 (10) (b), 281.37 (title), 281.37 (1) (intro.), 281.37 (1) (a), 281.37 (1) (e), 281.37 (1) (f), 281.37 (2), 281.37 (3) (g), 281.37 (3) (j), 281.37 (3m) and 281.37 (4);
to renumber
30.28 (2) (b) 1., 30.28 (2) (b) 2., 281.22 (2) (title), 281.22 (2m) (title) and 281.22 (2m) (a) 2.;
to renumber and amend
30.28 (1), 281.22 (title), 281.22 (2) (a), 281.22 (2) (b), 281.22 (2) (d), 281.22 (2m) (a) (intro.), 281.22 (2m) (a) 1., 281.22 (2m) (b), 281.22 (3), 281.36 (2) (a), 281.36 (3), 281.36 (8) (bn) 1., 281.37 (1) (b), 281.37 (1) (d), 281.37 (2m), 281.37 (3) (intro.), 281.37 (3) (a), 281.37 (3) (b), 281.37 (3) (c), 281.37 (3) (d), 281.37 (3) (e), 281.37 (3) (f), 281.37 (3) (h), 281.37 (3) (i) and 281.37 (5);
to consolidate, renumber and amend
281.36 (10) (intro.) and (a);
to amend
20.370 (4) (bi), 23.321 (title), 23.321 (4) (a) 2. and 3., 30.025 (1b) (b), 30.03 (4) (a), 30.2022 (2), 30.207 (7) (a), 30.28 (title), 30.28 (2m) (a), 30.28 (2m) (am), 30.28 (2m) (b), 30.28 (2m) (d), 30.28 (2r) (a) (intro.), 30.28 (2r) (a) 1., 30.28 (2r) (b), 281.165 (4) (a) 1m., 281.36 (4) (intro.), 281.36 (4) (b), 281.36 (4) (e) 1., 281.36 (4) (e) 2., 281.36 (4) (e) 3., 281.36 (5) (intro.), 281.36 (5) (a), 281.36 (5) (b), 281.36 (6) (a) 1., 281.36 (9) (a) (intro.), 281.36 (9) (a) 1., 281.36 (9) (a) 2., 281.36 (9) (a) 3., 281.98 (1) and 814.04 (intro.);
to repeal and recreate
281.36 (title); and
to create
20.370 (4) (bm), 23.321 (1) (title), 23.321 (2) (title), 23.321 (2m) (title), 23.321 (3) (title), 23.321 (3m), 23.321 (4) (title), 23.321 (5) (title), 23.321 (6) (title), 30.28 (1) (a), 30.28 (1) (b), 30.28 (1m), 227.01 (13) (ru), 281.17 (10) (c), 281.36 (1) (bd), 281.36 (1) (bj), 281.36 (1) (cp), 281.36 (3b) (title), 281.36 (3b) (a), 281.36 (3g) (title), 281.36 (3g) (a), 281.36 (3g) (c), 281.36 (3g) (d), 281.36 (3g) (e), 281.36 (3g) (f), 281.36 (3g) (fg), 281.36 (3g) (fm), 281.36 (3g) (fr), 281.36 (3g) (g), 281.36 (3g) (h), 281.36 (3g) (i), 281.36 (3m), 281.36 (3n), 281.36 (3p), 281.36 (3q), 281.36 (3r), 281.36 (9) (d) and (e), 281.36 (11), 281.36 (12) (a), 281.36 (12) (b), 281.36 (13) and 281.36 (14) of the statutes;
relating to:
permits for discharges into wetlands; wetland mitigation; wetland mapping and delineation;
fees for permits and other authorizations or determinations by the Department of Natural Resources relating to structures, deposits, and other activities in or near navigable waters; making appropriations; and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Section
1
.
20.370 (4) (bi) of the statutes is amended to read:
20.370
(4)
(bi)
Water regulation and zoning — fees.
From the general fund, all moneys received under ss. 23.32 (3), 23.321, 30.28, 31.39
,
and
281.22
281.36 (12)
for activities relating to permits
, contracts, authorizations,
and
other
approvals issued under
s. 281.36 and
chs. 30 and 31,
for activities relating to
water quality standards under subch. II of ch. 281
,
and for wetland mapping under s. 23.32 and wetlands services under s. 23.321.
Section
2
.
20.370 (4) (bm) of the statutes is created to read:
20.370
(4)
(bm)
Wetland restoration — fees; payments.
From the general fund, all moneys received as surcharge fees under s. 281.36 (11) and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for the restoration or creation of wetlands and for any other activities authorized under the in lieu fee subprogram.
Section
3
.
23.321 (title) of the statutes is amended to read:
23.321
(title)
Wetland
map review,
identification
,
and confirmation.
Section
4
.
23.321 (1) (title) of the statutes is created to read:
23.321
(1)
(title)
Definition.
Section
5
.
23.321 (2) (title) of the statutes is created to read:
23.321
(2)
(title)
Types of services.
Section
6
.
23.321 (2) (a) of the statutes is repealed.
Section
7
.
23.321 (2m) (title) of the statutes is created to read:
23.321
(2m)
(title)
Memorandum of agreement.
Section
8
.
23.321 (3) (title) of the statutes is created to read:
23.321
(3)
(title)
Fees; generally.
Section
9
.
23.321 (3) (a) of the statutes is repealed.
Section
10
.
23.321 (3m) of the statutes is created to read:
23.321
(3m)
Fees; expedited service.
The department may charge a supplemental fee for a type of service under sub. (2) that is in addition to the fee charged under sub. (3) if all of the following apply:
(a) The applicant requests in writing that the service be provided within a time period that is shorter than the time limit specified under sub. (4) for that type of service.
(b) The department verifies that it will be able to comply with the request.
Section
11
.
23.321 (4) (title) of the statutes is created to read:
23.321
(4)
(title)
Time limits.
Section
12
.
23.321 (4) (a) 1. of the statutes is repealed.
Section
12m
.
23.321 (4) (a) 2. and 3. of the statutes are amended to read:
23.321
(4)
(a) 2. Provide a wetland identification not later than
30
60
days after a person files a request, in the manner and form required by the department, for a wetland identification.
3. Provide a wetland confirmation not later than
30
60
days after a person files a request, in the manner and form required by the department, for a wetland confirmation.
Section
13
.
23.321 (5) (title) of the statutes is created to read:
23.321
(5)
(title)
Length of validity.
Section
14
.
23.321 (6) (title) of the statutes is created to read:
23.321
(6)
(title)
Included on maps.
Section
15
.
30.025 (1b) (b) of the statutes is amended to read:
30.025
(1b)
(b) "Permit" means an individual permit, a general permit, an approval, or a contract required under this subchapter or subch. II, a permit or an approval required under ch. 31, a storm water discharge permit required under s. 283.33 (1) (a), or a
water quality certification
wetland general permit or wetland individual permit
required under s. 281.36 or under rules promulgated under subch. II of ch. 281 to implement
33 USC 1341
(a).
Section
16
.
30.03 (4) (a) of the statutes is amended to read:
30.03
(4)
(a) If the department learns of a possible violation of
s. 281.36 or of
the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters, and the department determines that the public interest may not be adequately served by imposition of a penalty or forfeiture, the department may proceed as provided in this paragraph, either in lieu of or in addition to any other relief provided by law. The department may order a hearing under ch. 227 concerning the possible violation or infringement, and may request the hearing examiner to issue an order directing the responsible parties to perform or refrain from performing acts in order
to comply with s. 281.36 or
to fully protect the interests of the public in the navigable waters. If any person fails or neglects to obey an order, the department may request the attorney general to institute proceedings for the enforcement of the department's order in the name of the state. The proceedings shall be brought in the manner and with the effect of proceedings under s. 111.07 (7).
Section
17
.
30.2022 (2) of the statutes is amended to read:
30.2022
(2)
The exemption under sub. (1) does not apply unless the activity is accomplished in accordance with interdepartmental liaison procedures established by the department and the department of transportation for the purpose of minimizing the adverse environmental impact, if any, of the activity.
If the activity affects a wetland, as defined in s. 23.32 (1), the department of transportation shall conduct any required mitigation either by complying with the interdepartmental liaison procedures and any applicable interagency agreement on mitigation banks that is approved by the department of natural resources or by using any of the methods specified in s. 281.36 (3r) (a) 1. to 3.
Section
18
.
30.207 (7) (a) of the statutes is amended to read:
30.207
(7)
(a) At least 15 days before beginning the activity that is authorized by a general permit under this section the person who wishes to conduct the activity shall submit a notice to the department and shall pay the fee specified in s. 30.28
(2) (b) 2
(1) (d)
. The notice shall describe the activity, state the name of the person that will be conducting the activity and state the site where the activity will be conducted. The notice shall also contain a statement signed by the person conducting the activity that the person will act in conformance with the standards contained in the general permit.
Section
19
.
30.28 (title) of the statutes is amended to read:
30.28
(title)
Fees for permits,
other
approvals,
and
determinations
and hearings
.
Section
20
.
30.28 (1) of the statutes is renumbered 30.28 (1) (intro.) and amended to read:
30.28
(1)
(intro.) The department shall charge a
permit or approval
fee for
carrying out its duties and responsibilities under ss. 30.10 to 30.205, 30.207 and 30.21 to 30.27
reviewing, investigating, and making decisions on determinations and on whether to issue or grant permits, contracts, authorizations, or other approvals under this subchapter
. The
permit or approval
required
fee shall accompany the
permit
application
, notice or request for approval
or other submitted documentation
.
The department shall set each type of fee in the amount that is necessary to meet the costs incurred by the department except as follows:
Section
21
.
30.28 (1) (a) of the statutes is created to read:
30.28
(1)
(a) For an individual permit issued under s. 30.208, the application fee shall be $600.
Section
22
.
30.28 (1) (b) of the statutes is created to read:
30.28
(1)
(b) For authorization to proceed under a general permit issued under s. 30.206, the application fee shall be $300.
Section
23
.
30.28 (1m) of the statutes is created to read:
30.28
(1m)
Additional fees.
(a) In addition to the fees required under sub. (1), the department may set and charge fees for making any of the following determinations:
1. An identification of an ordinary high-water mark.
2. A determination of navigability.
3. Any other determination that is necessary for reviewing, investigating, or making a decision on applications for permits, contracts, authorizations, or other approvals under this chapter.
(b) The department shall set each fee authorized under this subsection in the amount that is necessary to meet the costs incurred by the department.
Section
24
.
30.28 (2) (title) of the statutes is repealed.
Section
25
.
30.28 (2) (a) (intro.) of the statutes is repealed.
Section
26
.
30.28 (2) (a) 1. of the statutes is repealed.
Section
27
.
30.28 (2) (a) 2. of the statutes is repealed.
Section
28
.
30.28 (2) (a) 3. of the statutes is repealed.
Section
29
.
30.28 (2) (b) 1. of the statutes is renumbered 30.28 (1) (c).
Section
30
.
30.28 (2) (b) 2. of the statutes is renumbered 30.28 (1) (d).
Section
31
.
30.28 (2m) (a) of the statutes is amended to read:
30.28
(2m)
(a) The department shall refund a
permit or approval
fee
charged under sub. (1) (a)
if the applicant requests a refund before the department determines that the application
for the permit or approval
is complete. Except as provided in par. (am), the department may not refund a
permit or approval
fee after the department determines that the application is complete
unless required to do so under a rule promulgated under s. 299.05
.
Section
32
.
30.28 (2m) (am) of the statutes is amended to read:
30.28
(2m)
(am) The department shall refund 50% of the fee specified in sub.
(2) (b) 1.
(
1) (c)
if the department denies an application for a general permit under s. 30.207 (3) (d) 1. or does not issue a general permit under s. 30.207 (6).
Section
33
.
30.28 (2m) (b) of the statutes is amended to read:
30.28
(2m)
(b) If
the applicant applies for a permit, requests an approval, or submits a notice under s. 30.207 (7)
a person applies for a permit or otherwise seeks authorization or gives notice for a project or activity
after the project
or activity
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.
Section
34
.
30.28 (2m) (c) of the statutes is repealed.
Section
35
.
30.28 (2m) (d) of the statutes is amended to read:
30.28
(2m)
(d) The department
, by rule,
may increase any fee specified in sub.
(2) (a). The department, by rule, may increase a fee specified in sub. (2) (b)
(1) or (1m)
only if the increase is necessary to meet the costs incurred by the department in
acting on general permits or on notices submitted under s. 30.207
performing the activities for which the fee is charged
.
Section
36
.
30.28 (2r) (a) (intro.) of the statutes is amended to read:
30.28
(2r)
(a) (intro.) The department, by rule, may charge a supplemental fee for a permit
or
, contract, authorization, other
approval
, or determination
that is in addition to the fee charged under this section if all of the following apply:
Section
37
.
30.28 (2r) (a) 1. of the statutes is amended to read:
30.28
(2r)
(a) 1. The applicant requests in writing that the permit
or
,
approval
authorization, or determination
be issued
or the contract be granted
within a time period that is shorter than the time limit under the rule promulgated under par. (b) for that type of permit
or
, contract, authorization,
approval
, or determination
.
Section
38
.
30.28 (2r) (b) of the statutes is amended to read:
30.28
(2r)
(b) If the department promulgates a rule under par. (a), the rule shall contain a time limit for each type of permit
or
, contract, authorization,
approval
classified under sub. (2) (a) for determining whether the department will grant the permit or approval
, or determination
.
Section
39
.
31.39 (2m) (c) of the statutes is repealed.
Section
40
.
227.01 (13) (ru) of the statutes is created to read:
227.01
(13)
(ru) Is a wetland general permit issued under s. 281.36 (3g).
Section
41
.
281.165 (4) (a) 1m. of the statutes, as created by
2011 Wisconsin Act 6
, is amended to read:
281.165
(4)
(a) 1m. The wetland area is
a nonfederal wetland,as defined in s. 281.36 (1) (c)
not subject to federal jurisdiction under
33 USC 1344
, and the activity will affect less than 3 acres of that wetland area.
Section
42
.
281.17 (10) (c) of the statutes is created to read:
281.17
(10)
(c) This subsection does not apply to discharges into wetlands that are subject to regulation under s. 281.36.
Section
43
.
281.22 (title) of the statutes is renumbered 281.36 (12) (title) and amended to read:
281.36
(12)
(title)
Fees
Application fees
and time limits
for water quality determinations for wetlands
.
Section
44
.
281.22 (1) of the statutes is repealed.
Section
45
.
281.22 (2) (title) of the statutes is renumbered 281.36 (12) (c) (title).
Section
46
.
281.22 (2) (a) of the statutes is renumbered 281.36 (12) (c) 1. and amended to read:
281.36
(12)
(c) 1. The department shall refund
the
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
for the determination
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
.
Section
47
.
281.22 (2) (b) of the statutes is renumbered 281.36 (12) (c) 2. and amended to read:
281.36
(12)
(c) 2. If the applicant
applies for a permit after the project
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.
Section
48
.
281.22 (2) (c) of the statutes is repealed.
Section
49
.
281.22 (2) (d) of the statutes is renumbered 281.36 (12) (c) 3. and amended to read:
281.36
(12)
(c) 3. The department
, by rule,
may increase the fee specified in
sub. (1)
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
.
Section
50
.
281.22 (2m) (title) of the statutes is renumbered 281.36 (12) (d) (title).
Section
51
.
281.22 (2m) (a) (intro.) of the statutes is renumbered 281.36 (12) (d) 1. (intro.) and amended to read:
281.36
(12)
(d) 1. (intro.) The department, by rule, may charge a supplemental fee
for a determination under sub. (1)
that is in addition to
the
a
fee charged under
sub. (1)
this subsection
if all of the following apply:
Section
52
.
281.22 (2m) (a) 1. of the statutes is renumbered 281.36 (12) (d) 1. a. and amended to read:
281.36
(12)
(d) 1. a. The applicant requests in writing that the
determination
decision on the application
be issued within a time period that is shorter than the time limit promulgated under
par. (b)
subd. 2.
for the
determination
decision
.
Section
53
.
281.22 (2m) (a) 2. of the statutes is renumbered 281.36 (12) (d) 1. b.
Section
54
.
281.22 (2m) (b) of the statutes is renumbered 281.36 (12) (d) 2. and amended to read:
281.36
(12)
(d) 2. If the department promulgates a rule under
par. (a)
subd. 1.
, the rule shall contain
for
a time limit for making
determinations under sub. (1)
decisions on the application
.
Section
55
.
281.22 (3) of the statutes is renumbered 281.36 (12) (e) and amended to read:
281.36
(12)
(e)
Exemptions from fees.
Subsections (1), (2) and (2m)
Paragraphs (a), (b), (c), and (d)
do not apply to any federal agency or state agency.
Section
56
.
281.22 (4) of the statutes is repealed.
Section
57
.
281.36 (title) of the statutes is repealed and recreated to read:
281.36
(title)
Permits for discharges into wetlands; mitigation.
Section
58
.
281.36 (1) (am) of the statutes is repealed.
Section
59
.
281.36 (1) (bd) of the statutes is created to read:
281.36
(1)
(bd) "Fill material" has the meaning given in
33 CFR 323.2
(e), as the meaning exists on the effective date of this paragraph .... [LRB inserts date].
Section
60
.
281.36 (1) (bg) of the statutes is repealed.
Section
61
.
281.36 (1) (bj) of the statutes is created to read:
281.36
(1)
(bj) "Mitigation" means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.
Section
62
.
281.36 (1) (c) and (cm) of the statutes are repealed.
Section
63
.
281.36 (1) (cp) of the statutes is created to read:
281.36
(1)
(cp) "Practicable" means reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project.
Section
64
.
281.36 (1) (cr) of the statutes is repealed.
Section
65
.
281.36 (1m) of the statutes is repealed.
Section
66
.
281.36 (2) (title) of the statutes is repealed.
Section
67
.
281.36 (2) (a) of the statutes is renumbered 281.36 (3b) (b) and amended to read:
281.36
(3b)
(b) No person may discharge dredged
material
or fill material into a
nonfederal
wetland unless the discharge is authorized by a
water quality certification
wetland general permit or individual permit
issued by the department under this section
or the discharge is exempt under sub. (4)
. No person may violate any condition
imposed by the department in a water quality certification
contained in a wetland general or individual permit issued by the department
under this section. The department may not issue a
water quality certification
wetland general or individual permit
under this section unless it determines that the discharge
authorized pursuant to the wetland general or individual permit
will comply with all applicable water quality standards.
Section
68
.
281.36 (2) (b) of the statutes is repealed.
Section
69
.
281.36 (3) of the statutes is renumbered 281.36 (2m) and amended to read:
281.36
(2m)
Delineation procedures.
For purposes of delineating the boundary of a
nonfederal
wetland
, the department and the person who is applying for or who holds a water quality certification under this section shall use
under this section,
the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers
shall be used
. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department
by rule
designates that edition as the one to be used under this subsection.
If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after May 8, 2001, the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.
Section
70
.
281.36 (3b) (title) of the statutes is created to read:
281.36
(3b)
(title)
Permit required.
Section
71
.
281.36 (3b) (a) of the statutes is created to read:
281.36
(3b)
(a) For purposes of this section, a wetland general or individual permit issued by the department constitutes water quality certification as required by
33 USC 1341
(a).
Section
72
.
281.36 (3g) (title) of the statutes is created to read:
281.36
(3g)
(title)
Wetland general permits.
Section
73
.
281.36 (3g) (a) of the statutes is created to read:
281.36
(3g)
(a)
Required permits.
The department shall issue a wetland general permit for each of the following types of discharges:
1. A discharge that is necessary for the treatment or disposal of hazardous waste or toxic pollutants, if the discharge does not contain hazardous waste or toxic pollutants and does not affect more than 2 acres of wetland.
2. A discharge that is necessary for temporary access and dewatering, if the discharge does not affect more than 2 acres of wetland.
3. A temporary or permanent discharge for routine utility construction and maintenance projects and activities.
4. A discharge that is part of a development for industrial purposes, if the discharge does not affect more than 10,000 square feet of wetland. For purposes of this subdivision, the development of a waste disposal site is considered to be a development for industrial purposes.
5. A discharge that is part of a development for commercial purposes, if the discharge does not affect more than 10,000 square feet of wetland.
6. A discharge that is part of a development for residential purposes, if the discharge does not affect more than 10,000 square feet of wetland.
7. A discharge that is part of a development for agricultural purposes, if the discharge does not affect more than 10,000 square feet of wetland.
8. A discharge that is part of a development for municipal purposes, if the discharge does not affect more than 10,000 square feet of wetland.
9. A discharge that is part of a development for recreational purposes, if the discharge does not affect more than 10,000 square feet of wetland.
10. A discharge that is necessary for the construction, reconstruction, or maintenance of a bridge or culvert that is part of a transportation project that is being carried out under the direction and supervision of a city, village, town, or county.
Section
74
.
281.36 (3g) (c) of the statutes is created to read:
281.36
(3g)
(c)
Additional permits.
The department may issue wetland general permits, in addition to those required under pars. (a) and (b), to regulate other discharges that affect wetlands located in this state.
Section
75
.
281.36 (3g) (d) of the statutes is created to read:
281.36
(3g)
(d)
Requirements; conditions; restrictions.
In issuing wetland general permits under this subsection, the department shall establish requirements, conditions, and exceptions to ensure that the discharges will cause only minimal adverse environmental effects, and a general permit may apply only to a single and complete project. As part of a general permit, the department may prohibit discharges into wetlands that are identified by the department as being one of the following:
1. Great Lakes ridge and swale complexes.
2. Interdunal wetlands.
3. Coastal plain marshes.
4. Emergent marshes containing wild rice.
5m. Sphagnum bogs that are located in the area located south of a horizontal line drawn across the state based on the routes of STH 16 and STH 21 west of Lake Winnebago and on USH 151 east of Lake Winnebago.
6. Boreal rich fens.
7. Calcareous fens.
Section
76
.
281.36 (3g) (e) of the statutes is created to read:
281.36
(3g)
(e)
Period of validity; subsequent actions.
A wetland general permit issued under this subsection is valid for a period of 5 years. Upon compliance with the requirements under pars. (f) to (g), the department may renew, modify, or revoke a wetland general permit issued under this subsection.
Section
77
.
281.36 (3g) (f) of the statutes is created to read:
281.36
(3g)
(f)
Public notice.
The department shall provide to interested members of the public notices of its intention to issue, renew, modify, or revoke a wetland general permit under this subsection. Procedures for providing public notices shall include all of the following:
1. Publication of a class 1 notice under ch. 985.
2. Providing a copy of the notice to any person or group upon request of the person or group.
3. Publication of the notice on the department's Internet Web site.
Section
78
.
281.36 (3g) (fg) of the statutes is created to read:
281.36
(3g)
(fg)
Date of notice.
For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet Web site shall be considered the date of public notice.
Section
79
.
281.36 (3g) (fm) of the statutes is created to read:
281.36
(3g)
(fm)
Written comments.
The department shall provide a period of not less than 30 days after the date of the public notice during which time interested persons may submit their written comments on the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. All written comments submitted during the period for comment shall be retained by the department and considered by the department in acting on the general permit.
Section
80
.
281.36 (3g) (fr) of the statutes is created to read:
281.36
(3g)
(fr)
Description in notice.
Every public notice provided by the department under par. (f) shall include a description of the discharges to be authorized under the wetland general permit.
Section
81
.
281.36 (3g) (g) of the statutes is created to read:
281.36
(3g)
(g)
Public informational hearing.
1. The department shall provide an opportunity for any interested state agency or federal agency or person or group of persons to request a public informational hearing with respect to the department's intention to issue, renew, modify, or revoke a wetland general permit under this subsection. The request for the hearing shall be filed with the department within 30 days after the provision of the public notice under par. (f) and shall indicate the interest of the party filing the request and the reasons why the hearing is warranted.
2. The department shall hold a public informational hearing upon a request under subd. 1. if the department determines that there is a significant public interest in holding such a hearing. Hearings held under this subsection are not contested cases under s. 227.01 (3).
3. Public notice of any hearing held under this subsection shall be circulated in accordance with the requirements under par. (f). The public notice shall include the time, date, and location of the hearing, a summary of the subject matter of the wetland general permit, and information indicating where additional information about the general permit may be viewed on the department's Internet Web site. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the general permit.
Section
82
.
281.36 (3g) (h) of the statutes is created to read:
281.36
(3g)
(h)
Authorizations for discharges under wetland general permits.
1. A person wishing to proceed with a discharge that may be authorized under a wetland general permit shall apply to the department, with written notification of the person's wish to proceed, not less than 30 days before commencing the discharge authorized by the general permit unless subd. 4. applies. The application shall provide information describing the discharge in order to allow the department to determine whether the discharge is authorized by the wetland general permit and shall give the department consent to enter and inspect the site, subject to sub. (9). The application shall identify all activities affecting wetlands that will be conducted as part of the single and complete project. The application shall include a detailed explanation of why the impact to the wetland cannot be avoided and how the impact to the wetland will be minimized to the greatest extent practicable. The application shall be accompanied by the fee specified in sub. (12) (a). If the application is for authorization to proceed under a wetland general permit that is issued under sub. (3g) (a) 4., 5., or 6., the application shall be accompanied by a surcharge fee, as calculated under sub. (11). The department may make a request for additional information one time during this 30-day period.
2. If, within 30 days after an application under subd. 1. is received by the department, the department does not either request additional information or inform the applicant that a wetland individual permit will be required as provided in par. (i), the discharge shall be considered to be authorized under the wetland general permit and the applicant may proceed without further notice, hearing, permit, or approval if the discharge is carried out in compliance with all of the conditions of the general permit.
2m. If adverse weather conditions prevent the department from conducting an accurate on-site inspection during this 30-day period specified in subd. 1., the department shall give notice to the person wishing to proceed with the discharge that adverse weather conditions will prevent the department from complying with the 30-day deadline and shall complete the inspection as soon as weather conditions permit.
3. If the department requests additional information under subd. 1., the 30-day period is tolled from the date the person applying for authorization to proceed receives the request until the date on which the department receives all of the additional information.
4. As part of a wetland general permit issued under par. (b) or (c), the department may waive the requirement that a person wishing to proceed under the general permit apply to the department as required under this paragraph so that the person may proceed with the discharge without specific authorization from the department.
5. Authorization to proceed under a wetland general permit is valid for 5 years after the date on which the discharge is considered to be authorized or until the discharge is completed, whichever occurs first.
Section
83
.
281.36 (3g) (i) of the statutes is created to read:
281.36
(3g)
(i)
Wetland individual permit in lieu of wetland general permit.
For a proposed discharge for which an application has been received by the department under par. (h), the department may decide to require that a person who submitted the application apply for a wetland individual permit if the department has inspected the site as provided in par. (h) and has determined that conditions specific to the site require additional restrictions on the discharge in order to provide reasonable assurance that no significant adverse impacts to wetland functional values will occur.
Section
84
.
281.36 (3m) of the statutes is created to read:
281.36
(3m)
Wetland individual permits.
(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).
(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.
(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.
(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.
(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.
(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.
(g)
Notice of application.
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.
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.
(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.
(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.
(j)
Public comment.
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.
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.
Section
85
.
281.36 (3n) of the statutes is created to read:
281.36
(3n)
Review by department.
(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.
(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:
1. The direct impacts of the proposed project to wetland functional values.
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.
3. Potential secondary impacts of the proposed project to wetland functional values.
4. The impact on functional values resulting from the mitigation that is required under sub. (3r).
5. The net positive or negative environmental impact of the proposed project.
(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:
1. The proposed project represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.
2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.
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.
(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.
Section
86
.
281.36 (3p) of the statutes is created to read:
281.36
(3p)
Notice requirements; wetland individual permits.
(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:
1. That the notice be published as a class 1 notice under ch. 985.
2. That the notice be provided to any person or group upon request of the person or group.
3. That the notice be published on the department's Internet Web site.
(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:
1. The name and address of the applicant.
2. A brief description of the discharge that requires the permit and the project that includes the discharge.
3. For a notice of a public informational hearing, the time, date, and location of the hearing.
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.
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.
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).
(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, unless the department delegates to the applicant under par. (d) the requirement to provide notice. If the department delegates to the applicant the requirement to provide notice, the date of the notice shall be the date on which the department first publishes the notice on its Internet Web site or 10 days after the date on which the department receives satisfactory proof of publication of a class 1 notice from the applicant, whichever is later.
(d) 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:
1. Requiring that the applicant for the permit provide by publication, mailing, or other distribution one or more of the notices.
2. 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.
Section
86m
.
281.36 (3q) of the statutes is created to read:
281.36
(3q)
Administrative and judicial review.
(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.
(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:
1. The issuance, denial, or modification of any wetland individual permit issued under this section.
2. The imposition of, or failure to impose, a condition on any wetland individual permit issued under this section.
(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:
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.
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.
3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner's objection.
(d)
Stays.
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.
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.
(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.
(f)
Action on petition.
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:
1. The petitioner is not the applicant, and the petition does not comply with the requirements of par. (c).
2. 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.
3. If the department denies the petition, the department shall send the petitioner the denial in writing, stating the reasons for the denial.
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.
(g)
Administrative hearing.
1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.
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.
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.
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:
a. The applicant.
b. Each petitioner, if other than the applicant.
c. Any other persons required to receive notice as provided under sub. (3p).
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.
(h)
Judicial review.
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.
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.
Section
87
.
281.36 (3r) of the statutes is created to read:
281.36
(3r)
Mitigation; in lieu fee subprogram.
(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:
1. Purchasing credits from a mitigation bank located in this state.
2. Participating in the in lieu fee subprogram, if such a subprogram is established under par. (e).
3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.
(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.
(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.
(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:
1. The name of the sponsor of the proposed mitigation bank.
2. A brief description of the mitigation bank and all of its bank sites.
3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.
4. An address to which any comments shall be submitted.
(d) 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.
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.
(e) As part of the mitigation program established under par. (a), the department may establish an in lieu fee subprogram, in consultation with the army corps of engineers, 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 department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the program 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.
Section
88
.
281.36 (4) (intro.) of the statutes is amended to read:
281.36
(4)
Exemptions.
(intro.) Except as provided in sub. (5), the
certification
permitting
requirement under sub.
(2)
(3b)
does not apply to any discharge that is the result of any of the following activities:
Section
89
.
281.36 (4) (b) of the statutes is amended to read:
281.36
(4)
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a
nonfederal
wetland.
Section
90
.
281.36 (4) (e) 1. of the statutes is amended to read:
281.36
(4)
(e) 1. That the flow and circulation patterns and chemical and biological characteristics of the affected
nonfederal
wetland are not impaired.
Section
91
.
281.36 (4) (e) 2. of the statutes is amended to read:
281.36
(4)
(e) 2. That the reach of the affected
nonfedera
l wetland is not reduced.
Section
92
.
281.36 (4) (e) 3. of the statutes is amended to read:
281.36
(4)
(e) 3. That any adverse effect on the aquatic environment of the affected
nonfederal
wetland is minimized to the degree required by the department.
Section
93
.
281.36 (5) (intro.) of the statutes is amended to read:
281.36
(5)
Inapplicability of exemptions.
(intro.) Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the
certification
permitting
requirement under sub.
(2)
(3b)
if the discharge is incidental to an activity that has as its purpose bringing a
nonfederal
wetland, or part of a
nonfederal
wetland, into a use for which it was not previously subject and if the activity may do any of the following:
Section
94
.
281.36 (5) (a) of the statutes is amended to read:
281.36
(5)
(a) Impair the flow or circulation of any
nonfederal
wetland.
Section
95
.
281.36 (5) (b) of the statutes is amended to read:
281.36
(5)
(b) Reduce the reach of any
nonfederal
wetland.
Section
96
.
281.36 (6) (a) 1. of the statutes is amended to read:
281.36
(6)
(a) 1. Make the rules consistent with existing federal law
or interpretation
.
Section
97
.
281.36 (7) of the statutes is repealed.
Section
98
.
281.36 (8) (title) of the statutes is repealed.
Section
99
.
281.36 (8) (a) of the statutes is repealed.
Section
100
.
281.36 (8) (b) of the statutes is repealed.
Section
101
.
281.36 (8) (bn) 1. of the statutes is renumbered 281.36 (3g) (b) and amended to read:
281.36
(3g)
(b)
Additional required permits.
The
In addition to the wetland general permits required under par. (a), the
department shall issue
wetland
general
water quality certifications
permits
that are consistent with
all of the
, and correspond to, any
general permits
that are
issued under
33 USC 1344
(e)
that applied on January 8, 2001, to nonfederal wetlands located in this state
and that regulate discharges other than those regulated under the required wetland general permits issued under par. (a)
.
Section
102
.
281.36 (8) (bn) 2. of the statutes is repealed.
Section
103
.
281.36 (8) (c) of the statutes is repealed.
Section
104
.
281.36 (8) (d) of the statutes is repealed.
Section
105
.
281.36 (8) (e) of the statutes is repealed.
Section
106
.
281.36 (9) (a) (intro.) of the statutes is amended to read:
281.36
(9)
(a) (intro.) 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:
Section
107
.
281.36 (9) (a) 1. of the statutes is amended to read:
281.36
(9)
(a) 1. Enter and inspect any property on which is located a
nonfederal
wetland
,
or part of a
nonfederal
wetland, for which an application
for a water quality certification
has been submitted
to the department
under sub. (3g) or (3m)
.
Section
108
.
281.36 (9) (a) 2. of the statutes is amended to read:
281.36
(9)
(a) 2. Enter and inspect any property on which is located a
nonfederal
wetland to investigate a discharge
of dredged or fill material
that the department has reason to believe is in violation of this section.
Section
109
.
281.36 (9) (a) 3. of the statutes is amended to read:
281.36
(9)
(a) 3. Gain access to and inspect any records that
the department requires
a holder of a
water quality certification to
wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to
keep.
Section
110
.
281.36 (9) (am) to (c) of the statutes are repealed.
Section
111
.
281.36 (9) (d) and (e) of the statutes are created to read:
281.36
(9)
(d)
The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under par (a).
(e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:
1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.
2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.
Section
112
.
281.36 (10) (intro.) and (a) of the statutes are consolidated, renumbered 281.36 (10) and amended to read:
281.36
(10)
Other
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
do any of the following: (a) Regulate
otherwise regulate
the discharge of dredged or fill material in a
nonfederal
wetland under ss. 59.692, 61.351, 62.231, 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.
Section
113
.
281.36 (10) (b) of the statutes is repealed.
Section
114
.
281.36 (11) of the statutes is created to read:
281.36
(11)
Restoration; surcharge fee.
(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.
(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.
Section
115
.
281.36 (12) (a) of the statutes is created to read:
281.36
(12)
(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.
Section
116
.
281.36 (12) (b) of the statutes is created to read:
281.36
(12)
(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.
Section
117
.
281.36 (13) of the statutes is created to read:
281.36
(13)
Parties to a violation.
(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.
(b) A person is concerned in the commission of the violation if the person does any of the following:
1. Directly commits the violation.
2. Aids and abets the commission of the violation.
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.
Section
118
.
281.36 (14) of the statutes is created to read:
281.36
(14)
Penalties.
(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.
(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.
(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.
(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.
Section
119
.
281.37 (title) of the statutes is repealed.
Section
120
.
281.37 (1) (intro.) of the statutes is repealed.
Section
121
.
281.37 (1) (a) of the statutes is repealed.
Section
122
.
281.37 (1) (b) of the statutes is renumbered 281.36 (1) (bn) and amended to read:
281.36
(1)
(bn) "Mitigation project" means
the restoration, enhancement or creation of wetlands to compensate for adverse impacts to other wetlands. "Mitigation project" includes using credits from a wetlands mitigation bank
mitigation of the type specified in sub. (3r) (a) 3
.
Section
123
.
281.37 (1) (d) of the statutes is renumbered 281.36 (1) (bL) and amended to read:
281.36
(1)
(bL) "
Wetlands mitigation
Mitigation
bank" means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced
or
,
created
, or preserved
to provide
transferable
credits to be subsequently applied
or purchased in order
to compensate for adverse impacts to other wetlands.
Section
124
.
281.37 (1) (e) of the statutes is repealed.
Section
125
.
281.37 (1) (f) of the statutes is repealed.
Section
126
.
281.37 (2) of the statutes is repealed.
Section
127
.
281.37 (2m) of the statutes is renumbered 281.36 (8m), and 281.36 (8m) (a) 1. and 2. and (b) (intro.) and 2., as renumbered, are amended to read:
281.36
(8m)
(a) 1. A person who is the holder of a
wetland individual
permit
or other approval
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,
or
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
or other approval
if the holder of the
individual
permit
or other approval
fails to take these measures.
2. A person who is restoring, enhancing,
or
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.
(b) (intro.) 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:
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.
Section
128
.
281.37 (3) (intro.) of the statutes is renumbered 281.36 (3t) (intro.) and amended to read:
281.36
(3t)
Rules
for mitigation
.
(intro.) The department shall promulgate rules to establish a process for
consideration of wetland compensatory mitigation under sub. (2). Upon promulgation, the rules shall apply to any application or other request for an initial determination for a permit or other authorization that is pending with the department on the date on which the rules take effect
the mitigation program under sub. (3r)
. The rules shall address all of the following:
Section
129
.
281.37 (3) (a) of the statutes is renumbered 281.36 (3t) (a) and amended to read:
281.36
(3t)
(a) Requirements for the
avoidance and minimization of adverse impacts to the wetland that will be affected by the permitted activity
analysis of practicable alternatives that is included in an application for a wetland individual permit under sub. (3m) (b)
.
Section
130
.
281.37 (3) (b) of the statutes is renumbered 281.36 (3t) (b) and amended to read:
281.36
(3t)
(b) The conditions under which credits
in a wetlands mitigation bank
may be
used for wetland compensatory mitigation
purchased from a mitigation bank to comply with the mitigation program under sub. (3r)
.
Section
131
.
281.37 (3) (c) of the statutes is renumbered 281.36 (3t) (c) and amended to read:
281.36
(3t)
(c) Enforcement of
a requirement to implement a mitigation project
requirements under the mitigation program under sub. (3r) that apply to mitigation projects and mitigation banks
.
Section
132
.
281.37 (3) (d) of the statutes is renumbered 281.36 (3t) (d) and amended to read:
281.36
(3t)
(d) Baseline studies of
the wetland
wetlands
that will be affected by the
permitted activity
discharges
and of
the
sites for
mitigation
project site
projects
.
Section
133
.
281.37 (3) (e) of the statutes is renumbered 281.36 (3t) (e) and amended to read:
281.36
(3t)
(e) Plan and
project
design requirements for
a
mitigation
project, which shall consider the relation of the project design
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.
Section
134
.
281.37 (3) (f) of the statutes is renumbered 281.36 (3t) (f), and 281.36 (3t) (f) (intro.), as renumbered, is amended to read:
281.36
(3t)
(f) (intro.)
The comparability of a wetland
Standards for comparing wetlands
that will be restored, enhanced
or
,
created
, or preserved as a mitigation project or at a mitigation bank site
to the
wetland
wetlands
that will be adversely affected by
the permitted activity
discharges
, including all of the following:
Section
135
.
281.37 (3) (g) of the statutes is repealed.
Section
136
.
281.37 (3) (h) of the statutes is renumbered 281.36 (3t) (h) and amended to read:
281.36
(3t)
(h) Standards for measuring the short-term and long-term success of
a
mitigation
project
projects and mitigation bank sites
and requirements for the short-term and long-term monitoring of
a
mitigation
project
projects and mitigation bank sites
.
Section
137
.
281.37 (3) (i) of the statutes is renumbered 281.36 (3t) (i) and amended to read:
281.36
(3t)
(i) Remedial actions to be taken by
the applicant if a
holders of wetland individual permits for
mitigation
project is
projects that are
not successful and actions to be taken by
a wetlands
mitigation
bank if a
banks for
mitigation
project on which mitigation credits are based is
projects performed by the mitigation banks that are
not successful.
Section
138
.
281.37 (3) (j) of the statutes is repealed.
Section
139
.
281.37 (3m) of the statutes is repealed.
Section
140
.
281.37 (4) of the statutes is repealed.
Section
141
.
281.37 (5) of the statutes is renumbered 281.36 (13m) and amended to read:
281.36
(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
this section
mitigation
on wetland resources and on the issuance of permits or other approvals under ss. 59.692, 61.351, 62.231, 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.
Section
142
.
281.98 (1) of the statutes is amended to read:
281.98
(1)
Except as provided in ss. 281.344 (14) (a),
281.36,
281.346 (14) (a), 281.47 (1) (d), 281.75 (19), and 281.99 (2), any person who violates this chapter or any rule promulgated or any plan approval, license, special order, or water quality certification issued under this chapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed, or enjoined, this penalty does not accrue.
Section
143
.
814.04 (intro.) of the statutes, as affected by
2011 Wisconsin Act 2
, is amended to read:
814.04
Items of costs.
(intro.) Except as provided in ss. 93.20, 100.195 (5m) (b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9),
281.36 (2) (b) 1.,
767.553 (4) (d), 769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3), 895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3), when allowed costs shall be as follows:
Section
144
.
Nonstatutory provisions.
(1)
Position authorizations.
The authorized FTE positions for the department of natural resources are increased by 2.0 PR positions to be funded from the appropriation under section 20.370 (4) (bi) of the statutes, to implement the mitigation program under section 281.36 (3r) of the statutes as created in this act.
(2)
Project position changes.
(a) The authorized FTE positions for the department of natural resources are decreased by 3.0 PR project positions funded from the appropriation under section 20.370 (4) (bi) of the statutes, for the purpose for which the appropriation is made.
(b) The authorized FTE positions for the department of natural resources are increased by 3.0 PR positions to be funded from the appropriation under section 20.370 (4) (bi) of the statutes, for the purpose of providing wetland identification and confirmation services under section 23.321 of the statutes, as affected by this act.
Section
145
.
Initial applicability.
(1)
The treatment of sections 30.28 (2m) (c), 31.39 (2m) (c), 281.22 (2) (c), and 281.36 (3m), (3n), (3p), (3q), (3r), and(12) (a) and (b) of the statutes, the renumbering of section 30.28 (1) of the statutes, and the creation of section 30.28 (1) (a) and (b) of the statutes first apply to applications that are submitted to the department of natural resources on the effective date of this subsection.
(2)
The treatment of section 281.36 (14) of the statutes first applies to violations committed on the effective date of this subsection.
Section
146
.
Effective date.
(1)
This act takes effect on the first day of the 4th month beginning after publication.
