Wis. Stat. § 281.36
Permits for discharges into wetlands; mitigation
Redline — January 1, 2003 → current.View current text →
Current — January 1, 2019
As of January 1, 2003
(1) Definitions. In this section:
(a) "Additional federal law or interpretation" means any of the following:
1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.
2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in subds. 1. to 3. , that applies to wetlands located in this state, and that is issued after January 9, 2001.
(am) "Area of special natural resource interest" has the meaning given in s. 281.37 (1) (a) .
(b) "Existing federal law or interpretation" means any of the following:
1. 33 USC 1344 (f), as amended to January 8, 2001.
2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in subd. 1. or 2. , that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
(bg) "Federal transportation agency" means the federal aviation administration, the federal highway administration, or the federal railroad administration.
(c) "Nonfederal wetland" means a wetland that is identified as such under sub. (1m) .
(cm) "Political subdivision" means a city, village, town, or county.
(cr) "State transportation agency" means the department of transportation or the office of the commissioner of railroads.
(d) "Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15 .
(1m) Determination of nonfederal wetlands.
(a) A wetland is identified as a nonfederal wetland if either of the following applies:
1. Any discharges of dredged or fill material into the wetland are determined not to be subject to regulation under 33 USC 1344 due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
2. The wetland is determined to be a nonnavigable, intrastate, and isolated wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
(b) For the purpose of identifying wetlands under par. (a) :
1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.
2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.
(2) Certification requirement.
(a) No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.
(b)
1. The department shall approve or deny a complete application for a water quality certification under this section within 120 days after the date the department determines that a complete application for the certification has been submitted unless the applicant and the department agree to extend the time period. The department may not determine an application to be complete until the requirements under s. 1.11 have been met and until all of the items of information for the water quality certification and for any associated permits or other approvals have been submitted to the department. If the department fails to approve or deny the complete application within the applicable time period, the applicant may bring an action for mandamus to compel the department to approve or deny the application. If the court grants the mandamus, the department shall approve or deny the application within 30 days after the mandamus is granted and the court shall award the applicant reasonable attorney fees and court costs incurred in bringing the action.
2. For purposes of subd. 1. , the department shall initially determine whether a complete application has been submitted and, no later than 30 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this subdivision. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the the application has been submitted.
(3) 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 the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. 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.
(4) Exemptions. Except as provided in sub. (5) , the certification requirement under sub. (2) does not apply to any discharge that is the result of any of the following activities:
(a) Normal farming, silviculture, or ranching activities.
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
(d) Maintenance of drainage ditches.
(e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:
1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.
2. That the reach of the affected nonfederal wetland is not reduced.
3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.
(5) Inapplicability of exemptions. Notwithstanding sub. (4) , a discharge that would be exempt under sub. (4) is subject to the certification requirement under sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:
(a) Impair the flow or circulation of any nonfederal wetland.
(b) Reduce the reach of any nonfederal wetland.
(6) Rules for exemptions.
(a) The department shall promulgate rules to interpret and implement the provisions under subs. (4) and (5) . In promulgating these rules, the department shall do all of the following:
1. Make the rules consistent with existing federal law.
2. Incorporate any applicable additional federal law or interpretation into the rules.
(b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.
(7) Rules prohibition; determinations of public safety.
(a) The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if all of the following apply:
1. The wetland is less than one acre in size.
2. The wetland is not in an area of special natural resource interest.
3. The application for the water quality certification includes a copy of a determination that the discharge is necessary for public safety that is made under par. (b) or that is made in response to a request made under par. (bn) .
(b)
1. A political subdivision shall make a determination as to whether a discharge into a nonfederal wetland within the boundaries of the political subdivision is necessary for public safety if requested to do so by an applicant for a water quality certification under this section. A state transportation agency shall make a determination as to whether a discharge into a nonfederal wetlands is necessary for public safety if requested to do so by an applicant for a water quality certification under this section.
2. Before a political subdivision or a state transportation agency makes any determination under subd. 1. , it shall publish appropriate notice, as determined by the political subdivision or the state transportation agency, to the public that describes the request and that states that it will be making the determination. On or before the date of the publication of the notice, the political subdivision or state transportation agency shall mail or otherwise provide a written copy of the notice to the department. After publication of the notice, the governing body of the political subdivision or the state transportation agency may hold a public hearing to determine whether the discharge is necessary for public safety. Any public hearing held under this subdivision shall be held no later than 30 days after the applicant for the water quality certification made the request for the determination. The governing body of the political subdivision or the state transportation agency shall issue the determination in writing, and the determination shall include a statement of the grounds for making the determination.
3. The department or any person whose substantial interests are adversely affected by a determination issued under subd. 2. by a governing body of a political subdivision or by a state transportation agency may file for judicial review of the determination. Section 68.13 shall apply to the judicial review of a determination made by a political subdivision. Sections 227.52 to 227.58 shall apply to the judicial review of a determination made by a state transportation agency.
(bn) An applicant for a water quality certification may submit a request to a federal transportation agency for a determination as to whether a discharge into a nonfederal wetland is necessary for public safety.
(c)
1. Notwithstanding the fact that an applicant for a water quality certification under this section has received a determination that the discharge is necessary for public safety, the department may conduct an examination of the practicable alternatives to the proposed discharge that will not adversely affect the nonfederal wetland and that will not result in other significant adverse environmental consequences.
2. If the department decides under subd. 1. to conduct an examination, the department shall conduct the examination by first determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting the examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.
(1) Definitions. In this section:
(a) “Additional federal law or interpretation" means any of the following:
1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.
2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in subds. 1. to 3. , that applies to wetlands located in this state, and that is issued after January 9, 2001.
(ad) “Bank service area” means the geographic area corresponding to the HUC 6 within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank as determined in an agreement between the department and the U.S. army corps of engineers and referenced in a mitigation banking instrument under sub. (3w) .
(ae) “Basin” means the Lake Michigan, Lake Superior, or Mississippi River basin.
(am) “Demonstrable economic public benefit" means an economic benefit to the community or region that is measurable, such as increased access to natural resources, local spending by the proposed project, employment, or community investment.
(b) “Existing federal law or interpretation" means any of the following:
1. 33 USC 1344 (f), as amended to January 8, 2001.
2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in subd. 1. or 2. , that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
(bd) “Fill material" has the meaning given in 33 CFR 323.2 (e), as the meaning exists on July 1, 2012.
(bf) “HUC 6” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 6-digit basin scale (the hydrologic unit code 6).
(bg) “HUC 8” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 8-digit subbasin scale (the hydrologic unit code 8).
(bj) “Mitigation" means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.
(bL) “Mitigation bank" means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands.
(bn) “Mitigation project" means mitigation of the type specified in sub. (3r) (a) 3.
(br) “Nonfederal wetland" means a wetland that is not subject to federal jurisdiction under 33 USC 1344 .
(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.
(ct) “Small business" has the meaning given in s. 227.114 (1) .
(d) “Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15 .
(2m) Delineation procedures. For purposes of delineating the boundary of a wetland 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 designates that edition as the one to be used under this subsection.
(3b) Permit required.
(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).
(b) No person may discharge dredged material or fill material into a wetland unless the discharge is authorized by a wetland general permit or individual permit issued by the department under this section or the discharge is exempt under sub. (4) , (4m) (a) , (4n) , or (4r) . No person may violate any condition contained in a wetland general or individual permit issued by the department under this section. The department may not issue a 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.
(3g) Wetland general permits.
(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 or aquacultural 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.
(b) Additional required permits. In addition to the wetland general permits required under par. (a) , the department shall issue wetland general permits that are consistent with, and correspond to, any general permits that are issued under 33 USC 1344 (e) and that regulate discharges other than those regulated under the required wetland general permits issued under par. (a) .
(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.
(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.
(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.
(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 website.
(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 website shall be considered the date of public notice.
(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.
(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.
(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.
Official source: Wisconsin State Legislature. Reproduced from public-domain Wisconsin statutes; confirm against the official source for the current text. Not legal advice.