On February 20, 2018, the Wisconsin Legislature passed legislation creating limited exemptions to state wetland permitting requirements. The legislation allows property owners and developers to impact nonfederal wetlands – predominately isolated and intrastate wetlands so named because they are not subject to federal regulatory jurisdiction under the Clean Water Act – without seeking a state permit and, in some cases, without completing mitigation to compensate for wetland losses. Governor Walker is expected to sign the bill into law.
Though significantly narrowed through the legislative process from initial proposals, the final legislation is still expected to provide tangible benefits to the regulated community by reducing the burden and expense of permitting projects that impact low-quality wetlands.
The legislation builds on previous efforts to streamline and add predictability to the wetland permitting process in Wisconsin. In addition to permitting exemptions, the legislation adds flexibility to the process of obtaining state determinations regarding the presence of wetlands on a property.
The bill creates three limited permitting exemptions from requirements to obtain a permit from the Wisconsin Department of Natural Resources (WDNR) for activities that impact nonfederal wetlands.
- Development in Urban Areas. First, the bill exempts activities that impact no more than one acre (per parcel) of lower-quality wetlands in urban areas from obtaining a state permit. “Urban area” is defined broadly to include any area that is incorporated, within one-half mile of an incorporated area, or in an area of a town that is served by a sewerage system. This provision should reduce the regulatory burden of obtaining state wetland permits for low-value wetlands in areas that are well-suited or slated for future development. Mitigation is required for a disturbance in an urban area greater than one-fourth of an acre at a ratio of 1.2:1.
- Construction of Agricultural Structures. Under the legislation, farms can undertake development activities that impact up to three acres of lower-quality wetlands per parcel. The development must be related to the construction of a structure with an agricultural purpose, including buildings, driveways, and roads.
- Artificial Wetlands. Finally, the bill exempts discharges of fill material into artificial wetlands. Artificial wetlands are landscapes that contain vegetation characteristic of wetlands, but which instead result from human modification to the landscape or hydrology. There can also be no evidence that a prior wetland or stream existed at the location prior to 1991 for the wetland to be considered artificial. This provision prevents low-lying drainage areas that may have been created as part of an earlier development or construction project from triggering permitting or mitigation requirements.
While these projects are exempt from permitting, a landowner or developer must still provide WDNR with notice of the project and documentation to show that the wetland qualifies for one of these three exemptions.
Wetland Delineation Changes
The proposed legislation creates an additional avenue for obtaining a WDNR-approved wetland delineation. Under current law, a party may ask WDNR to complete a wetland identification or confirmation – with such determination to be provided by WDNR within 60 days after a completed request is filed.
This legislation provides an avenue for property owners to seek expedited confirmation of a wetland delineation (within 15 days) without a site visit by the agency, provided that the wetlands at issue are only nonfederal wetlands. This provision builds on the success of WDNR’s wetland assured delineator initiative, which eliminates the need for WDNR to concur in the delineation if an assured delineator performs the wetland review.
Under existing law, completed wetland identifications or confirmations remain effective for five years. Under the bill, some of these determinations may be valid for 15 years if certain conditions are met. This provision provides additional certainty for property owners as they make long-term development plans and multi-phase commitments.
The legislation also:
- Authorizes WDNR to seek delegated authority from EPA and the Army Corps to administer the federal dredge-and-fill permit program;
- Commissions a wetlands study council to be housed at WDNR to research and develop recommendations on various issues relating to wetland permitting, mitigation requirements, and WDNR’s administration of wetlands regulations in Wisconsin;
- Limits the ability of local governments to regulate certain discharges to wetlands; and
- Creates two related grant programs designed to put dollars collected under the state’s wetland mitigation in-lieu fee program to work.
Please contact your Michael Best attorney or any of the attorneys listed below for further information on how this legislation may affect your property or business.