Senate Passes Wetlands Bill

Early this morning, the Senate approved legislation that would ease restrictions on development in or near state wetlands. Senate Bill 368, sponsored by Senator Neal Kedzie (R-Elkhorn), makes significant changes to Wisconsin’s wetlands permitting process.

Wisconsin wetlands are currently subject to a myriad of different regulations. For example, some wetlands are subject to both state and federal regulations, while others are regulated only by the state. For non-federal wetlands, the Department of Natural Resources (DNR) can issue an individual or general certification, and must take extra precautions if the wetland is or is near to an area of special natural resource interest (ASNRI). While the jurisdictional overlap is unavoidable, the multitude of permitting standards for non-federal wetlands results in an overly complex area of law.

The wetlands bill would require the DNR to follow specific procedures and timelines for issuing individual wetlands permits for the first time ever. The DNR will be able to focus on larger and more complex projects by increasing the use of general permits for smaller, less complex projects. The DNR would also be permitted to consider economic impacts and mitigation when making a permitting determination.

The bill passed 17-15 along party lines early Wednesday morning. Sen. Chris Larson (D-Milwaukee) objected to final reading on Tuesday afternoon, blocking the vote until the next time the body convened. In response to Larson’s procedural delay, Senate Majority Leader Scott Fitzgerald (R-Juneau) forced the body to return to the floor at 12:01am to vote.

It is expected that the Assembly will pass the bill in the coming weeks.

Below is a discussion of the changes to Wisconsin’s wetland regulations contained in AB 463/SB368 as amended in committee:

I. Wetland Permit
The bill substitutes the term “wetland permit” for “water quality certification,” and specifies that the issuance of a wetland permit by the DNR takes the place of a water quality certification required by federal law. However, federal requirements from the Army Corps of Engineers remain the same, and are in no way modified by the bill. The state permits are modified, and in some ways they become more like their federal counterparts.

II. Wetland General Permits
State general permits are currently limited to types of discharges that are similar in nature and will cause minimal adverse environmental effects. The bill expands the availability of general permits. For example, the bill requires the DNR to issue certain additional wetland general permits (project permits). These include general permits for:

  • discharges that are necessary for the treatment or disposal of hazardous waste or toxic pollutants if not more than two acres of wetlands are affected, and
  • discharges for commercial, residential, or agricultural purposes if not more than 10,000 square feet of wetland are affected.

Under the bill, a person must file an application to proceed under a general permit not less than 30 days before commencing a discharge. If, within 30 days after the application, the DNR does not inform the applicant that an individual wetland permit is be required, the discharge is considered to be authorized under the general wetland permit. The DNR is able to extend the review time if adverse weather conditions prevent the DNR from conducting an on-site inspection of the area.

A general permit authorizes discharges for five years or until the discharge is completed, whichever occurs first. In addition, a general permit may only apply to a single and complete project. This prevents applicants from “permit stacking,” which federal law disallows.

The bill maintains strong protections for unique wetlands by authorizing the DNR to prohibit discharges into certain types of wetlands identified by the DNR, such as coastal plain marshes, calcareous fens, and sphagnum bogs that are located in certain areas of the state. The DNR is also authorized to establish different requirements, conditions, and exceptions in general permits to ensure that the discharges will cause only minimal adverse environmental effects. The bill mandates that the DNR take certain steps to notify the public of the department’s intent to issue a general wetland permit.

III. Procedures and Timelines for Issuing Wetland Permits
The DNR may require a person to apply and obtain a wetland individual permit if the DNR determines 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. For the first time, the bill would require the DNR to follow specific procedures and timelines for issuing individual wetlands permits.

The new law requires a pre-application meeting between the applicant and the DNR to discuss the details of the proposed discharge. Once the application is filed, the DNR has 30 days to determine if the application is complete, or if additional information is required. Upon receipt of additionally requested information, the DNR has 10 days to notify the applicant whether the application is complete.

The date on which the 30-day or 10-day notice is sent is called the “date of closure,” and triggers the public hearing and comment process. Within 15 days of the date of closure, the DNR must provide notice of the application to interested members of the public. The applicant or any person may request a public informational hearing on the permit application. The DNR may decide to hold a hearing without a request if it determines that there is significant public interest.

If a hearing is held, the period for public comment ends 10 days after the date the hearing is completed, and the DNR must render its decision within 20 days after the period for public comment ends. If no hearing is held, the DNR must render a decision on the application within 30 days after the period for public comment has ended.

IV. Standards for Reviewing Applications for Wetland Individual Permits
Under current law, the DNR has promulgated rules that prevent it from issuing an individual wetland water quality certification unless no practicable alternative exists which would avoid causing adverse impacts to the wetland, and the applicant can insure that all practicable measures will be taken to minimize the adverse impacts to the functional value of the affected wetlands.

Under the bill, the DNR must limit its review of alternatives to those that are located at the site of the discharge and those adjacent to the site if:

  • the applicant has demonstrated that the proposed project that will cause the discharge will have a demonstrable economic benefit,
  • that the proposed project is necessary for the expansion of an existing industrial or commercial facility,
  • that the proposed project will occur in an existing industrial park, or
  • the proposed project is an expansion of an existing agricultural facility.

Under current law, the DNR must find that the project complies with wetland quality standards and must issue the wetland water quality certification if the DNR finds that there will be no significant adverse impacts or other significant environmental consequences.

Under the bill, the DNR must find that the project complies with wetland quality standards if:

• the DNR determines that the proposed project represents the least environmentally damaging practicable alternative,
• all practicable measures to minimize the adverse impact to wetland functional values will be taken, and
• the discharge will not result in significant adverse impacts to wetland functional values or to water quality or in any other significant adverse environmental consequences.

Upon making such a finding, the DNR is authorized, but is not required, to issue a wetland individual permit. All individual permits are subject to administrative and judicial review, and the bill provides a procedure for temporarily prohibiting a discharge under an individual wetlands permit while a review is pending.

V. Wetland Mitigation
Under current law, the DNR may consider mitigation only as a last resort in determining whether to issue a water quality certification. Current law requires that mitigation occur within one-half mile of the wetland that will suffer an impact unless the DNR determines that it is not practicable or that it is ecologically preferable that the mitigation occur elsewhere. However, mitigation may not be considered when deciding whether to authorize an activity that would adversely affect an area of special natural resource interest (ASNRI) wetland or an ASNRI in general.

The bill requires that mitigation be performed under each wetland individual permit that DNR issues, and removes the restriction that mitigation may not be considered in issuing permits for discharges into ASNRI wetlands or into ASNRI in general. However, this does not mean that an applicant for a wetlands individual permit is entitled to approval just because they will conduct mitigation.

The bill also expands mitigation options by authorizing the DNR to create an in lieu fee subprogram. In lieu of mitigating wetland loss within the same watershed or within a certain distance from the lost wetlands, permit holders can pay a fee to the DNR or another entity for the purposes of improving or preserving wetlands or other water resources that are open to the public. The subprogram would be developed by the DNR in consultation with the Army Corps of Engineers, and must be in compliance with certain federal regulations.
 

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