AB917: Bill Text

LRB-4127/1

MCP/ZDW/EHS:all

2019 - 2020 LEGISLATURE

2019 Assembly BILL 917

February 14, 2020 - Introduced by Representatives Hebl, Pope, Shankland, Anderson, Billings, Brostoff, Emerson, Fields, Neubauer, Spreitzer, C. Taylor, Zamarripa, Cabrera, Considine, Doyle, Gruszynski, Hesselbein, Milroy, Ohnstad, Sargent, Sinicki, Stubbs, Subeck and Vruwink, cosponsored by Senators Miller, Risser, Smith, Carpenter, Erpenbach, Larson, Ringhand and L. Taylor. Referred to Committee on Environment.

AB917,3,2 An Act to repeal 15.347 (22), 20.370 (9) (gi), 23.099, 23.321 (1) (am), 23.321 (2) (d), 23.321 (2g), 23.321 (4) (a) 4., 23.321 (5) (b), 29.604 (7m), 30.025 (1e) (c), 31.23 (3) (e), 59.692 (1) (e), 59.692 (1d), 59.692 (1f), 59.692 (1k), 59.692 (5m), 66.1036, 77.105, 77.81 (1m), 77.81 (5m), 77.83 (2m), 77.84 (2) (bp), 77.88 (3) (d), 77.88 (9) (d) 2., 77.883, 87.30 (2) (b), 196.491 (3) (a) 3. c., 227.483 (3) (c), 281.12 (2), 281.36 (3r) (am), 281.36 (4n), 281.36 (12m), 281.37, 293.01 (2m), 293.01 (12m), 293.15 (7m), 293.26, 293.31 (4m), 293.32 (4), 293.37 (5), 293.40, 293.43 (2m), 293.43 (3m), 293.43 (4m), 293.49 (1) (a) 2m., 293.495, 293.51 (1g), 293.51 (1m), 293.51 (1r), 293.51 (5), 293.66, subchapter III of chapter 295 [precedes 295.40] and 323.60 (1) (gm); to renumber 59.692 (1c); to renumber and amend 23.321 (5) (a), 77.88 (9) (d) 1. and 87.30 (2) (a); to consolidate, renumber and amend 23.321 (1) (intro.) and (b); to amend 20.370 (9) (bm), 20.370 (9) (gh), 20.455 (1) (gh), 20.566 (7) (e), 20.566 (7) (v), 23.0917 (4) (c) 3., 23.321 (4) (a) 3., 29.604 (4) (intro.), 29.604 (4) (c) (intro.), 30.025 (1e) (a), 30.133 (2), 32.02 (12), 59.692 (1) (bn), 59.692 (4) (b), 61.353 (3) (intro.), 62.233 (3) (intro.), 70.375 (1) (as), 70.375 (1) (bm), 70.375 (2) (b), 70.375 (4) (h), 70.38 (2), 70.395 (1e), 70.395 (2) (dc) 1., 70.395 (2) (dc) 4., 70.395 (2) (fm), 70.395 (2) (g) (intro.), 70.395 (2) (g) 3., 70.395 (2) (h) 1., 70.395 (2) (hg), 70.395 (2) (hr), 70.395 (2) (hw), 74.25 (1) (a) 6., 74.30 (1) (f), 77.83 (2) (a), 77.84 (2) (b), 77.84 (2) (bm), 77.88 (5) (af) 1., 77.88 (5) (af) 2., 77.89 (2) (a), 107.001 (1), 107.01 (intro.), 107.01 (2), 107.02, 107.03, 107.04, 107.11, 107.12, 107.20 (1), 107.20 (2), 107.30 (8), 107.30 (15), 107.30 (16), 160.19 (12), 196.491 (3) (a) 3. b., 196.491 (4) (b) 2., 281.35 (5) (e), 281.36 (3b) (b), 281.36 (3g) (h) 2., 281.36 (3m) (a), 281.36 (3n) (d) 1., 281.36 (3r) (a) (intro.), 281.36 (4) (title), 281.36 (6) (a) (intro.), 281.36 (9) (a) (intro.), 281.36 (13m), 281.65 (2) (a), 281.75 (17) (b), 283.84 (3m), 287.13 (5) (e), 289.62 (2) (g) 2., 289.62 (2) (g) 6., 292.01 (1m), chapter 293 (title), 293.01 (5), 293.01 (7), 293.01 (9), 293.01 (12), 293.01 (18), 293.01 (25), 293.13 (2) (b) (intro.), 293.13 (2) (b) 4., 293.13 (2) (b) 7., 293.13 (2) (c) (intro.), 293.13 (2) (c) 7., 293.15 (8), 293.21 (1) (a), 293.25 (2) (a), 293.25 (4), 293.31 (title), 293.31 (1), 293.31 (2), 293.31 (3), 293.31 (4), 293.37 (4) (b), 293.43 (1), 293.43 (1m) (b), 293.47 (1) (b), 293.49 (1) (a) (intro.), 293.51 (title), 293.51 (1), 293.51 (3), 293.55 (1) (c), 293.55 (1) (d), 293.65 (3) (a), 293.65 (3) (b), 293.81, 293.86, chapter 295 (title), 295.16 (4) (f), 299.85 (7) (a) 2. and 4., 299.95, 323.60 (5) (d) 3., 706.01 (9) and 710.02 (2) (d); to repeal and recreate 59.692 (2m), 281.31 (2m) and 293.95; to create 59.692 (1u), 61.353 (3) (c), 61.353 (3) (d), 62.233 (3) (c), 62.233 (3) (d), 107.001 (2), 227.42 (4), 293.01 (8), 293.43 (2), 293.43 (3), 293.43 (4), 293.43 (5) and 293.50 of the statutes; and to affect 2013 Wisconsin Act 1, section 103 and 2017 Wisconsin Act 183, section 27; relating to: mining, wetlands, shoreland zoning, and scientist and educator positions and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill eliminates changes made to the regulation of sulfide ore mining, iron ore mining, wetlands, and shoreland zoning under various enactments since 2013 and restores Department of Natural Resources scientist and educator positions eliminated in 2015 Wisconsin Act 55.

Sulfide ore moratorium

This bill reinstates the prerequisite for issuing sulfide ore mining permits that existed prior to 2017 Wisconsin Act 134. Under the bill, DNR may not issue any permits for the purpose of mining a sulfide ore body until DNR determines that 1) there is a mining operation in a potentially acid-generating sulfide ore body in the United States or Canada that has been in operation for at least ten years without resulting in the pollution of groundwater or surface water from acid drainage or from the release of heavy metals; and 2) there is a mining operation that operated in a potentially acid-generating sulfide ore body in the United States or Canada that has been closed for at least ten years without resulting in the pollution of groundwater or surface water from acid drainage or from the release of heavy metals.

Iron mining and bulk sampling

This bill changes the laws under which DNR currently regulates mining so that the laws are substantially the same as they existed before enactment of 2013 Wisconsin Act 1, 2013 Wisconsin Act 81, and 2017 Wisconsin Act 134.

Under current law, DNR regulates mining for metallic minerals. Prior to the enactment of 2013 Wisconsin Act 1, the laws under which DNR regulated metallic mining applied to mining for ferrous and nonferrous minerals. 2013 Wisconsin Act 1 modified the laws regulating metallic mining so that they applied to mining for nonferrous minerals only and created new laws for regulating mining for ferrous minerals.

Under current law, certain forested land may be designated as managed forest land (MFL) under a program administered by DNR. Under this program, the owner of land designated as MFL makes an annual acreage share payment in lieu of property taxes and must open the land to the public for certain recreational activities. The landowner may designate a portion of the land as closed to public access and make an additional payment per acre. 2013 Wisconsin Act 81 generally provided that requirements regarding public access to MFL do not apply to an area of land within a certain distance of a proposed iron mining site and required an MFL owner to make an additional payment per acre for land located in a proposed ferrous mining site if the land is not open to public access.

Prior to 2017 Wisconsin Act 134, activities relating to nonferrous metallic minerals were regulated differently depending on whether the activity involved exploration, prospecting, or mining. 2017 Act 134 added as a regulated activity bulk sampling, which is the excavation of fewer than 10,000 tons of material with a license issued by DNR. 2017 Act 134 also repealed DNR administrative rules relating to mining and wetlands. This bill restores those provisions.

Wetlands

This bill eliminates the changes made by 2017 Wisconsin Act 183. That act exempted artificial wetlands and certain nonfederal wetlands from DNR wetland permitting requirements; changed some requirements relating to wetland boundary delineations; created wetland-related grant programs; and, if the Environmental Protection Agency delegates to the state the authority to administer its own permit program for the discharge of dredge or fill material into navigable waters, authorized DNR to assume that authority.

Nonfederal wetlands. Under current federal law, generally, a person must obtain a permit from the federal government for a discharge into a wetland that is under the jurisdiction of the federal government. Generally speaking, only wetlands that are adjacent to navigable waters are subject to federal jurisdiction. Federal law requires an applicant to submit with a permit application a certification from the state that the proposed discharge will comply with state water quality standards or that the state has waived such certification. In this state, DNR grants this certification by issuing a state wetland permit. Under current law, DNR must issue wetland general permits for discharges of dredged or fill material into certain wetlands and may require a person to apply for and obtain a wetland individual permit if 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. Under current law, before DNR may issue a wetland individual permit, it must require the restoration, enhancement, creation, or preservation of other wetlands to compensate for adverse impacts to a wetland resulting from the discharge, also known as mitigation.

This bill eliminates an exemption under current law from wetland permitting requirements for a discharge into a wetland that is not subject to federal jurisdiction (nonfederal wetland) that occurs in an urban area if it does not affect more than one acre of wetland per parcel, if it does not affect a rare and high quality wetland, and if the development related to the discharge is carried out in compliance with any applicable storm water management zoning ordinance or storm water discharge permit. Under current law, an urban area is an incorporated area, an area within one-half mile of an incorporated area, or an area that is served by a sewerage system. Current law defines a “rare and high quality wetland” as one that is directly adjacent or contiguous to a class I or class II trout stream or that consists of at least 75 percent of certain rare wetland types.

This bill eliminates an exemption under current law from wetland permitting requirements for a discharge into a nonfederal wetland that occurs outside an urban area if it does not affect more than three acres of wetland per parcel, if it does not affect a rare and high quality wetland, and if the development related to the discharge is a structure with an agricultural purpose.

Along with these exemptions, the bill eliminates a requirement that, for any discharge to one of these wetlands that is exempt from permitting requirements but that requires mitigation, mitigation must be conducted in the same compensation search area as the discharge. Under current DNR administrative rules, a compensation search area is an area that includes the statewide management unit of the impacted wetland, the county of the impacted wetland, and a circle with a 20-mile radius from the impacted wetland. DNR has defined 22 statewide management units based on the major river basins of the state.

Under current law, upon request and for a fee, DNR may provide to a landowner or tenant either a wetland identification that consists of a written evaluation, based upon an on-site inspection of the land by DNR, of whether a parcel of land contains a wetland, or a wetland confirmation that consists of a written statement, based upon an on-site inspection of the land by DNR, of whether DNR concurs with the boundaries of a wetland as delineated by a third person. Under current law, DNR must provide either service within 60 days of receiving a request, and a wetland identification or confirmation remains effective for five years.

The bill eliminates another type of wetland confirmation under current law that consists of a written statement, based upon DNR's review of the boundaries of a wetland as delineated by a qualified third person and not based upon an on-site inspection of the land by DNR, of whether DNR concurs with the delineation and requires DNR to provide this service within 15 days of receiving a request. Under current law, a “qualified third person” is an individual who has completed basic and advanced wetland training and has a minimum of one year of field experience in wetland delineation. The bill also eliminates an extension of the effectiveness of a wetland identification or confirmation to 15 years for a nonfederal wetland if the parcel of land is subject to a storm water management zoning ordinance or a storm water discharge permit, and eliminates a prohibition on DNR requiring a new delineation for such a parcel until the wetland identification or confirmation expires.

Artificial wetlands. This bill eliminates an exemption from wetland permitting requirements for a discharge to any artificial wetland, but leaves in place current rules promulgated by DNR, under which discharges to certain artificial wetlands are exempt from the wetland permitting requirements unless DNR determines that significant functional values are present. Current law defines an “artificial wetland” as a landscape feature where hydrophytic vegetation may be present as a result of human modification to the landscape or hydrology and for which DNR has no definitive evidence showing a prior wetland or stream history that existed before August 1, 1991, but excludes from the definition a wetland that serves as a fish spawning area or a passage to a fish spawning area or that was created as a result of a wetland mitigation requirement.

The bill eliminates a prohibition under current law on local governments regulating a discharge into nonfederal wetlands and artificial wetlands exempt from permitting requirements and on regulating mitigation requirements for such a discharge.

State administration of wetland permit program. Under current federal law, a state's governor may apply to the EPA requesting that the state be delegated the authority to administer its own individual and general permit program for the discharge of dredged or fill material into navigable waters, including federal wetlands, in place of the federal regulatory program. This bill removes the authority granted to DNR under current law to submit such an application on behalf of and at the direction of the governor and the authority of DNR to assume that administration authority if the EPA delegates it to the state.

Wetland mitigation grant program. Under the authority of current law, with the approval of the U.S. Army Corps of Engineers (ACE), DNR has created the in lieu fee subprogram as one method by which wetland mitigation may be accomplished. Under this subprogram, payments are made to DNR or another entity for the purposes of improving or preserving wetlands or other water resource features.

This bill eliminates the wetland mitigation grant program (mitigation program), under which nonprofit organizations may apply to DNR on a rolling basis for grants to conduct projects to create, restore, or enhance wetlands on DNR land, using moneys received under the in lieu fee subprogram and from surcharge fees charged for each application to proceed under a wetland general permit. The bill also removes DNR's authority under current law to submit a request to ACE that ACE move up all deadlines relating to its review and approval of wetland mitigation project proposals under the in lieu fee subprogram and that ACE approve a modification to the subprogram in order to implement the mitigation program.

Property development grants. The bill eliminates a separate grant program, funded from the property development and local assistance subprogram of the Warren Knowles-Gaylord Nelson stewardship 2000 program, under which DNR makes grants to nonprofit organizations for certain property development activities relating to wetlands affected by a project under a wetland mitigation grant.

Wetland study council. The bill eliminates the wetland study council, which under current law is established within DNR to research and provide recommendations on various issues relating to wetlands.

Shoreland zoning

This bill eliminates the changes to the laws regulating shoreland zoning that were made under the 2015 biennial budget act, 2015 Wisconsin Act 55.

Current law requires a county to enact shoreland zoning ordinances for all shorelands in its unincorporated area and requires those ordinances to meet shoreland zoning standards established by DNR by rule. Current law generally defines a shoreland to be an area within a specified distance from the edge of a navigable water.

Act 55 made various changes to the laws regulating shoreland zoning including the following:

1. Prohibiting a county shoreland zoning ordinance from regulating a matter more restrictively than the matter is regulated by a shoreland zoning standard promulgated by DNR.

2. Prohibiting a shoreland zoning ordinance from requiring a person to establish a vegetative buffer zone on previously developed land or expand an existing buffer zone.

3. Requiring a shoreland zoning ordinance to allow a vegetative buffer zone to contain a viewing corridor of at least 35 feet wide for every 100 feet of shoreline frontage and to allow the corridor to run contiguously for the entire maximum allowable width.

4. Prohibiting DNR from establishing shoreland zoning standards and prohibiting counties from enacting shoreland zoning ordinances that regulate certain outdoor lighting, that regulate certain construction activities with respect to nonconforming structures, and that impose certain standards for impervious surfaces.

5. Allowing certain maintenance and repair of nonconforming structures in shorelands that are accessory structures such as garages, sheds, sidewalks, and patios.

6. Generally requiring city and village shoreland zoning ordinances that apply to certain shorelands that were annexed or incorporated by the city or village to be consistent with the requirements and limitations applicable to county shoreland zoning ordinances.

7. Prohibiting DNR from appealing a decision of a county to grant or deny a variance to a law regulating county shoreland zoning.

This bill eliminates the changes to the law made by Act 55 so that the law is consistent with pre-Act 55 law.

DNR positions

This bill increases moneys appropriated to DNR by $1,672,900 in each fiscal year of the 2019-21 fiscal biennium for the purpose of increasing educator and science services positions by the equivalent of 29.4 full-time positions. This funding was decreased by this amount and these positions were eliminated under 2015 Wisconsin Act 55.

DOJ positions

The bill appropriates to the Department of Justice $390,800 to fund two assistant attorneys general and one paralegal for environmental protection purposes.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB917,1 Section 1 . 15.347 (22) of the statutes is repealed.

AB917,2 Section 2 . 20.370 (9) (bm) of the statutes is amended to read:

AB917,8,4 20.370 (9) (bm) Wetland restoration — fees; payments. From the general fund, all moneys received as surcharge fees under s. 281.36 (11), all moneys received as transfers to the in lieu fee subprogram as provided in s. 281.36 (3s) (h), 2015 stats., and all moneys received under the in lieu fee subprogram under s. 281.36 (3r) (e) for the restoration or creation of wetlands, for the wetland mitigation grant program under s. 281.37, and for any other activities authorized under the in lieu fee subprogram.

AB917,3 Section 3 . 20.370 (9) (gh) of the statutes, as affected by 2019 Wisconsin Act 9, is amended to read:

AB917,8,11 20.370 (9) (gh) Nonferrous metallic mining Mining regulation and administration. The amounts in the schedule for the administration, regulation, and enforcement of nonferrous metallic mining exploration, bulk sampling, prospecting, mining and mine reclamation activities under ch. 293. All moneys received under ch. 293 shall be credited to this appropriation.

AB917,4 Section 4 . 20.370 (9) (gi) of the statutes, as affected by 2019 Wisconsin Act 9, is repealed.

AB917,5 Section 5 . 20.455 (1) (gh) of the statutes is amended to read:

AB917,8,18 20.455 (1) (gh) Investigation and prosecution. Moneys received under ss. 23.22 (9) (c), 49.49 (6), 100.263, 133.16, 281.98 (2), 283.91 (5), 289.96 (3) (b), 291.97 (3), 292.99 (2), 293.87 (4) (b), 295.19 (3) (b) 2., 295.79 (4) (b), and 299.97 (2), for the expenses of investigation and prosecution of violations, including attorney fees.

AB917,6 Section 6 . 20.566 (7) (e) of the statutes is amended to read:

AB917,8,22 20.566 (7) (e) Investment and local impact fund supplement. The amounts in the schedule to supplement par. (v) for the purposes of ss. 70.395, 293.33 (4), and 293.65 (5) (a), 295.443, and 295.61 (9) (a) and (c).

AB917,7 Section 7 . 20.566 (7) (v) of the statutes is amended to read:

AB917,9,2 20.566 (7) (v) Investment and local impact fund. From the investment and local impact fund, all moneys received under s. 70.395 (1e) and (2) (dc) and (dg), less the moneys appropriated under s. 20.370 (4) (gr), to be disbursed under ss. 70.395 (2) (d) to (g), 293.33 (4), and 293.65 (5) (a), 295.443, and 295.61 (9) (a) and (c).

AB917,8 Section 8 . 23.0917 (4) (c) 3. of the statutes is amended to read:

AB917,9,4 23.0917 (4) (c) 3. Grants under ss. s. 23.098 and 23.099.

AB917,9 Section 9 . 23.099 of the statutes is repealed.

AB917,10 Section 10 . 23.321 (1) (intro.) and (b) of the statutes are consolidated, renumbered 23.321 (1) and amended to read:

AB917,9,9 23.321 (1) Definition. In this section: (b) “Wetland”, “ wetland” has the meaning given in s. 23.32 (1).

AB917,11 Section 11 . 23.321 (1) (am) of the statutes is repealed.

AB917,12 Section 12 . 23.321 (2) (d) of the statutes is repealed.

AB917,13 Section 13 . 23.321 (2g) of the statutes is repealed.

AB917,14 Section 14 . 23.321 (4) (a) 3. of the statutes is amended to read:

AB917,9,16 23.321 (4) (a) 3. Provide a wetland confirmation not later than 60 days after a person files a request, in the manner and form required by the department, for a wetland confirmation under sub. (2) (c).