There are approximately 5.3 million acres of wetlands in Wisconsin – nearly 15 percent of the state's total area. When the state was being settled there was pressure to drain or fill wetlands and convert them to "productive uses."1 But, beginning in the 1970s, some individuals and organizations began to argue that wetland areas should be protected because they serve many valuable functions, including retaining stormwater, filtering pollutants, protecting shorelands, providing habitats for fish and wildlife, and serving as locations for recreational opportunities. As a result, over the past several decades, an increasingly complex set of federal, state, and local regulations has developed to regulate wetland fills.
Today, if an individual or business (the client) would like to develop an industrial park, erect a new residential subdivision, expand an agricultural operation, construct a road, utility line, or stormwater pond, or just move a driveway, the client needs to determine whether that activity could result in the fill of wetlands. Making that determination is not easy. Wetlands can be present in urban as well as rural areas. Wetlands are not solely open-water marshes; the category also includes wet meadows and prairies, forested wetlands, and cultivated fields. In many cases, water is not present at the surface or is only present during some times of the year. Even wetland fills of less than one-tenth of an acre are subject to regulatory review. In short, a large number of land development activities have the potential to involve wetland regulations. Further complicating the regulatory picture is the fact that some wetlands are subject only to state jurisdiction while others are subject to both state and federal jurisdiction.
Given the broad reach of wetland regulations, the changes to Wisconsin wetland law in 2011 Wisconsin Act 118 (the Act or Act 118) deserve attention. This article provides an overview of wetland regulations and describes the key changes made by the Act.
Overview of Act 118 in the Context of Existing Wetland Regulations
Act 118, which became effective on July 1, 2012, is a comprehensive revision of the standards and procedures used by the Wisconsin Department of Natural Resources (DNR) to issue permits for discharges into wetlands.
The Act was designed to accomplish several important goals:2
- Develop a uniform and comprehensive state system for reviewing and potentially permitting activities in all wetlands, regardless of whether they are subject to federal jurisdiction or just state jurisdiction;
- Develop a system of state permits that more closely corresponds to federal permits, including the use of "general permits";
- Use a process for reviewing and potentially granting approvals that is consistent with the process used for permitting activities in and near navigable waters under Wis. Stat. chapter 30;
- Provide greater clarity in the permit standards and require the DNR to consider a holistic "net-gain" analysis of the environmental impacts of a project; and
- Allow for greater consideration of wetland mitigation measures to address effects on wetlands.
These goals were welcomed by many persons seeking permits, but they were not without controversy. Some members of the environmental-protection community expressed concerns that these changes will make it easier to fill wetlands and that mitigation of such fills is not an adequate compensation or protection.3
Appreciating how the new law aims to achieve the stated goals of Act 118 requires better understanding the complex federal and state regulatory environment governing wetlands.
Both the state of Wisconsin and the U.S. government regulate the discharge of dredged or fill material into wetlands.4 The federal government's authority to regulate wetlands arises under section 404 of the Clean Water Act (CWA),5 which grants the U.S. Army Corps of Engineers (the Corps) the authority to issue permits for the discharge of material into waters of the United States, including wetlands.
Paul G. Kent, U.W. 1981, is a senior partner at Stafford Rosenbaum LLP, Madison. His practice focuses on water law and other environmental issues for municipalities and businesses throughout the state. He participated in the development of the revisions to Wisconsin’s wetlands law through his representation of the Wisconsin Realtors Association and the Wisconsin Builders Association.
Jordan K. Lamb, U.W. 2002, is a partner at DeWitt Ross & Stevens, Madison, whose practice focuses on environmental law and government relations. She represents numerous agricultural trade associations and is a past chair of the State Bar Agricultural and Agribusiness Law Section. She participated in the development of the revisions to Wisconsin’s wetlands law through her representation of several Wisconsin farm organizations. www.dewittross.com
Many CWA functions, such as issuance of wastewater-discharge permits, have been delegated to the DNR to administer. That is not the case with section 404 permits, which the Corps issues. Under the CWA, when a federal agency issues a permit, the states have the right to review and determine whether the federal permit meets state water-quality standards.6 This process is known as water quality certification. Thus, when the Corps issues a wetland permit, the DNR's role is to review the federal permit for compliance with state water-quality standards for wetlands.7
The reach of the Corps's jurisdiction has been the subject of several recent U.S. Supreme Court decisions, which are not particularly clear. Basically, federal jurisdiction applies to all waters and wetlands that have a significant nexus to navigable waters.8 To help make sense of these rulings, the Corps has developed guidance to assist it in making this jurisdictional determination on a case-by-case basis.
This technical legal issue has significant real-world effects because many wetlands are "isolated" from navigable waters and, therefore, are not subject to federal jurisdiction. As a result of 2001 Wisconsin Act 6, Wisconsin became the first state to fill the resulting regulatory gap by specifically authorizing the DNR to review and approve fills of nonfederal wetlands.9 For these nonfederal wetlands, the DNR became the permit-issuing authority and issued approvals based on state-law procedures.
Accordingly, one of the goals of Act 118 is to provide a uniform set of state standards and procedures to review wetland fills for all wetlands. Under the new law, if the wetland is subject to federal jurisdiction, the Corps issues its section 404 permit and the state permit fulfills the requirement of water-quality certification. If the wetland is not subject to federal jurisdiction, the state permit provides protection of the wetland under the same standards and procedures as are applicable to water-quality certification of federal permits.
Act 118 provides for two kinds of permits for wetlands: general permits and individual permits. Each type of permit is described below.
From the outset of federal regulation of wetlands, the Corps has used a variety of general permits to allow for expedited and standardized review of minor wetland fills.10 A general permit (GP) applies to a defined set of minor or routine activities for which a standard set of conditions can be applied. A person seeking to undertake an activity under authorization of a GP typically submits to the DNR an application that describes how the proposed activity fits with the GP authorization. This process does not involve public hearings or a detailed case-by-case analysis.11
Wisconsin has applied the GP concept to most environmental programs, including permits for activities in and near navigable waters under Wis. Stat. chapter 30, permits for routine wastewater discharges under Wis. Stat. chapter 283, and permits for minor air-emission sources under Wis. Stat. chapter 285. However, until passage of Act 118, Wisconsin had no GPs for wetlands. Thus, every fill, even those involving only a fraction of an acre, required an individual review. Act 118 provides for GPs in some situations. The Act both requires and authorizes the DNR to issue GPs.
Required General Permits. The DNR is required to issue GPs for discharges of 2.0 acres or less that are necessary to treat or dispose of hazardous waste or that are necessary for temporary dewatering. The DNR must also issue a GP for discharges of any size that are necessary for routine utility construction and maintenance projects.12
In addition, the DNR is required to issue GPs that are part of a development for industrial, commercial, residential, agricultural, municipal, or recreational purposes "if that discharge does not affect more than 10,000 square feet of wetland," approximately 0.2 acres.13 A GP must also be issued for discharges that are necessary for the "construction, reconstruction, or maintenance of a bridge or culvert" that is part of a city, village, town, or county transportation project.14
The Act also requires the DNR to issue GPs "that are consistent with and correspond to, any [wetland] general permits that are issued" by the federal government.15 The Corps is charged with reviewing and issuing regional GPs for wetland disturbances to determine compliance with the CWA. Currently, the Corps has issued three GPs that apply in Wisconsin.16
Current State General Permits. To date, the DNR has issued two GPs. The first is a statewide GP for wetland discharges that are part of development for industrial, commercial, or residential purposes.17 This GP is valid for five years and will allow applicants to apply for coverage under the permit for wetland impacts of up to 10,000 square feet if the impact meets all the eligibility criteria and conditions of the general permit.
The second is a draft GP for highway-, bridge-, and culvert-improvement projects.18 This statewide general permit is intended to streamline the wetland and waterway permitting process for county, village, city, and town highway-, bridge-, and culvert-improvement projects affecting waterways and wetlands. This GP will be valid for five years and will allow municipalities to apply for coverage under the permit for wetland impacts of up to 10,000 square feet if the impact meets all eligibility criteria and conditions of the GP.
Authorized General Permits. The Act also authorizes the DNR to issue additional GPs. The statute provides very little guidance with regard to what other GPs the DNR might issue. It simply says that the DNR "may issue wetland general permits in addition to those required … [by the Act] to regulate other discharges that affect wetlands in this state."19 This is significant from a reform perspective, however, because it is an explicit grant of additional authority to the DNR to issue GPs for wetland fills. It indicates the legislature's intent to provide broad general-permitting authority to the DNR.
If an exemption or a GP is not applicable, then a person seeking to discharge to or fill a wetland must apply for an individual permit (IP). An IP, as the name implies, is a permit granted after a determination made on an individual, case-by-case basis. An IP typically involves an application, public notice, a public hearing, and the development of site-specific conditions that govern any authorized activity. On the federal level, the IP standards reflect regulations issued both by the Corps and by the U.S. Environmental Protection Agency (EPA).20
The IP process in Act 118 reflects the basic concepts of the federal IP program under the CWA. Issuance of an IP requires the DNR to apply standards similar to those used by the Corps. Those standards are now summarized in Wis. Stat. section 281.36(3n)(c) as follows:
"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."
The key factors that must be considered in the review process include a review of practicable alternatives and significant project impacts, along with the impacts of mitigation.
Practicable Alternatives. The scope of a practicable alternative has often been the subject of dispute. In the authors' experience, tension typically existed between defining the project's scope so narrowly that there were no alternatives, and defining the project's scope so broadly that there was no end of possible alternatives. The new law attempts to provide some additional guidance in this area in two respects. 21 First, the Act clarifies the definition of practicable by specifically referring to site availability and proximity:
"(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."
Second, the scope of the DNR's review of practicable alternatives may be limited to the project site or to land adjacent to the project site if the project is necessary for the expansion of an existing industrial, commercial, or agricultural facility; is in an existing industrial park; or provides a demonstrable economic public benefit.22
Impacts to Wetlands. Similarly, the evaluation of wetland impacts often was fraught with disagreement. In the authors' experience, there was tension between looking exclusively at the immediate wetland impact and looking at both the immediate impact and overall environmental impacts. The Act provides some additional flexibility in this area.23
Concurrent with its review of practicable alternatives, the DNR must consider the following factors when considering the impacts to wetland functional values: the project's direct, cumulative, and secondary effects; the impact on functional values resulting from the mitigation; and the "net" positive or negative environmental impact of the project.24 This list requires the DNR to adopt a more holistic view of the project and its overall environmental impacts when assessing wetland impacts.
Permit Process. The legislature made several changes with the goal of improving and clarifying the permit process. First, every applicant for an IP must meet with the DNR before submitting the application to discuss the details of the proposed discharge and the requirements for submitting the application and delineating the wetland.25 It is anticipated that this pre-application meeting will help applicants navigate the permitting process more efficiently and alert them to potential problems before the application is filed.
Second, the timelines for the IP permit process are now set forth by statute.26 These procedures track the procedures applicable to permits issued under Wis. Stat. chapter 30, which governs activities in and near navigable waters.27 After submission of the application and fee, the DNR has 30 days to review the application to determine whether it is complete. If the application is incomplete, the DNR may make one request for additional information. Within 30 days after the application has been submitted or 10 days after the DNR receives material following a request for additional information, the application is closed. This is referred to as the "date of closure."
The DNR must provide public notice of the application within 15 days after the date of closure. A request for a public informational hearing must be made within 20 days after the notice is given. If no public hearing is requested, then the public has 30 days from the date of the notice to submit written comments. If a public hearing is requested, the public comment period extends to 10 days after the close of the hearing. The DNR must issue a decision either 30 days after close of the public-comment period, if a hearing is not held; or 20 days after close of the public-comment period, if a hearing is held.
Finally, if a person requests a contested-case hearing on the DNR's final decision, the procedures also parallel those applicable to chapter 30 permit proceedings.28 This is another important change from prior law. As noted above, for Corps-issued permits under section 404, the DNR was required to review the permit and provide water-quality certification. The water-quality-certification process is subject to a separate Wisconsin Administrative Code chapter, chapter NR 299. Under chapter NR 299, if the DNR granted water-quality certification, then a person could challenge that interpretation by asking for a contested-case hearing. In such a case, the hearing examiner would hold a de novo hearing in which the applicant, not the challenging party, would have the burden of proof.29 Under Act 118, the wetland-permit decision is deemed final upon issuance by the DNR, and the burden of proof is on the party challenging that decision.
In many cases involving wetlands, issues associated with navigable-water permits under Wis. Stat. chapter 30 also arose. However, once the DNR issued a chapter 30 permit, any person challenging that permit had the burden of proof.30 Thus, hearings involving chapter 30 and wetland fills for the same project often involved conflicting procedures concerning burden of proof and order of presentation. The new Act resolves this conflict by creating a uniform procedure.31
Mitigation, the final part of the process in DNR wetland evaluations, is an important step. Mitigation, the process by which wetland impacts can be offset by the creation or enhancement of wetlands elsewhere, has long been part of the Corps permitting process.32 The old law substantially limited the DNR's ability to consider mitigation in most projects.33 The new law eliminates those restrictions and requires mitigation for all IPs.34 In addition, the Act also requires mitigation to be considered by the DNR when it evaluates a project's impacts on wetland functional values.35
Mitigation for wetland impacts may be accomplished by the following methods:36
- Purchasing credits from a mitigation bank in the state;
- Completing mitigation within the same watershed or within one-half mile of the discharge site; or
- Participating in the in-lieu fee program.
Under Act 118, the DNR must establish mitigation ratios consistent with federal regulations; the minimum ratio must be at least 1.2 acres of mitigation for each 1.0 acres affected by the discharge.37 The DNR must also establish a system of service areas for mitigation banks, based on watersheds in Wisconsin, that are consistent with federal mitigation-bank requirements.38 The DNR may also, in consultation with the Corps, create an in-lieu-fee program for the purpose of restoring, enhancing, creating, or preserving wetlands or other water resource features.39 Wetlands that benefit from the program must be open to the public for hunting, fishing, trapping, skiing, or hiking.40
Impact on Other Permits
The permit process in the Act, codified at Wis. Stat. section 281.36, is directed at wetland fills. However, the process for granting wetland permits must be used in implementing wetland water-quality standards for other environmental permits.41 This provision of the Act is critical to providing a consistent framework for wetland permitting in Wisconsin. For example, this new wetland-permitting process will be used as a part of issuing chapter 30 permits.
Act 118 represents a significant change to the process for regulating wetland activities. The Act provides a uniform system for regulating wetland fills for all wetlands, federal and nonfederal. It requires the use of mitigation so that wetland permitting will result in a net gain of wetlands in Wisconsin. It requires the DNR to consider environmental impacts in a holistic manner, while preserving the requirement to avoid and minimize wetland impacts. And, it streamlines the process for minor activities through general permits while providing clear procedures for individual permits.
Given the controversial nature of wetland regulations, it is likely that these changes will be closely scrutinized to determine whether they fulfill the hopes of the Act's sponsors, the fears of its opponents, or some combination.
1 For example, the 1891 drainage law noted its objective was to "promote the drainage and reclamation of wet and overflowed lands within the state." 1891 Wis. Laws ch. 401 § 27.
2 See Press Release of Senator Kedzie, Wetlands Regulation Reform Bill Headed to Governor.
3 Testimony from the Wisconsin Wetlands Association, available at www.wisconsinwetlands.org.
4 Under federal law, wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. See 33 C.F.R. § 328.4(b); 40 C.F.R. § 230.3(t).
5 33 U.S.C. § 1344.
6 33 U.S.C. § 1341.
7 Those standards are found in Wisconsin Administrative Code chapter NR 103.
8 33 CFR § 328.1 (a). Rapanos v. United States, 547 U.S. 715 (2006). This limitation arises in part because federal power only arises from specific provisions in the U.S. Constitution, in this case the Commerce Clause, and in part from the way Congress has exercised this power in delegating authority to the Corps to issue permits under section 404 of the CWA.
9 2001 Wis. Act 6 (creating Wis. Stat. § 281.36).
10 Nationally these approvals are known as nationwide permits (NWPs); related procedures are codified at 33 C.F.R. pt. 330. The regional office that regulates activities in Wisconsin does not use NWPs but instead relies on a number of regional general permits.
11 A very limited set of exemptions from the wetland-permitting process is designed to follow the section 404(f) exemptions described above. Like the federal provision, there is a "recapture" provision if the exemption would cause certain adverse impacts.
12 Wis. Stat. § 281.36(3g)(a)1.-3.
13 Wis. Stat. § 281.36(3g)(a)4.-9.
14 Wis. Stat. § 281.26(3g)(a)10.
15 Wis. Stat. § 281.36(3g)(b).
16 See GP-001-WI, GP-002-WI, GP-014-WI, available at http://www.mvp.usace.army.mil/regulatory/default.asp?pageid=681.
17 See WDNR-GP1-2012, available at http://dnr.wi.gov/topic/Waterways/all_about_permits/GPs/GP1WetlandDischarge2012.pdf.
18 The draft general permit, WDNR-GP2-2012, is available at http://dnr.wi.gov/topic/Waterways/construction/wetland_GP/WDNR-GP2-2012_DRAFT.pdf.
19 Wis. Stat. § 281.36(3g)(c).
20 40 C.F.R. § 230.10; 33 C.F.R. § 320.4
21 Wis. Stat. § 281.36(3m)(b).
22 Wis. Stat. § 281.36(3n).
23 See Wis. Stat. § 281.36(3m)(c).
24 Wis. Stat. § 281.36(3n)(b). These factors are to be considered "in its [DNR's] review under par. (a)," which requires the DNR to evaluate the practicable-alternatives analysis required under Wis. Stat. section 281.36(3m)(b).
25 Wis. Stat. § 281.36(3m)(a).
26 Wis. Stat. § 281.36(3m), (3p).
27 Compare Wis. Stat. § 30.208.
28 Wis. Stat. § 281.36(3q).
29 Wis. Admin Code § NR 299.05(6).
30 Wis. Stat. § 30.209.
31 Wis. Stat. § 281.36(3q).
32 33 C.F.R. § 320.4(r). The EPA has promulgated rules governing mitigation standards and procedures. 40 C.F.R. §§ 230.91-230.98.
33 Section 281.37(2) (2009-10) of the Wisconsin Statutes established a long list of areas of special natural resource interest, and other limitations that significantly reduced the areas in which mitigation would be allowed. Those provisions have been repealed.
34 Wis. Stat. § 281.36(3n)(d).
35 See Wis. Stat. § 281.36(3n)(b)4.
36 Wis. Stat. § 281.36(3r).
37 Wis. Stat. § 281.36(3r)(d).
38 Wis. Stat. § 281.36(3r)(c).
39 Wis. Stat. § 281.36(3r)(e).
40 See id.
41 Wis. Stat. § 281.36(10).
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