Chapter 281

281.36(5) (5) Inapplicability of exemptions. Notwithstanding sub. (4), a discharge that would be exempt under sub. (4) is subject to the permitting requirement under sub. (3b) if the discharge is incidental to an activity that has as its purpose bringing a wetland, or part of a wetland, into a use for which it was not previously subject and if the activity may do any of the following:

281.36(5)(a) (a) Impair the flow or circulation of any wetland.

281.36(5)(b) (b) Reduce the reach of any wetland.

281.36(6) (6) Rules for exemptions.

281.36(6)(a) (a) The department shall promulgate rules to interpret and implement the provisions under subs. (4), (4n), (4r), and (5). In promulgating these rules, the department shall do all of the following:

281.36(6)(a)1. 1. Make the rules consistent with existing federal law or interpretation.

281.36(6)(a)2. 2. Incorporate any applicable additional federal law or interpretation into the rules.

281.36(6)(b) (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.

281.36(8m) (8m) Subsequent protection for wetlands.

281.36(8m)(a) (a)

281.36(8m)(a)1. 1. A person who is the holder of a wetland individual permit that authorizes a mitigation project shall grant a conservation easement under s. 700.40 to the department or shall execute a comparable legal instrument to ensure that a wetland that is being restored, enhanced, created, or preserved will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located. The department shall revoke the wetland individual permit if the holder of the individual permit fails to take these measures.

281.36(8m)(a)2. 2. A person who is restoring, enhancing, creating, or preserving a wetland to provide transferable credits as part of a wetlands mitigation bank shall grant a conservation easement under s. 700.40 to the department or shall execute a comparable legal instrument to ensure that the wetland will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located.

281.36(8m)(b) (b) Notwithstanding par. (a), the department shall modify or release a conservation easement granted under par. (a) or shall void a comparable legal instrument executed under par. (a) if all of the following apply:

281.36(8m)(b)1. 1. The department determines that part or all of the restored, enhanced or created wetland ceases to be a wetland.

281.36(8m)(b)2. 2. The person who is required to grant the conservation easement or execute the legal instrument did not contribute to the loss of the wetland specified in subd. 1.

281.36(8m)(b)3. 3. Any subsequent proprietor of or holder of interest in the property on which the wetland specified in subd. 1. is located did not contribute to the loss of the wetland.

281.36(9) (9) Inspection authority.

281.36(9)(a) (a) For purposes of determining whether to issue a wetland individual permit, whether authorization to proceed as authorized under a wetland general permit is appropriate, or whether an exemption under sub. (4), (4n), or (4r) is appropriate, and for purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:

281.36(9)(a)1. 1. Enter and inspect any property on which is located a wetland or part of a wetland, for which an application has been submitted under sub. (3g) or (3m).

281.36(9)(a)2. 2. Enter and inspect any property on which is located a wetland to investigate a discharge that the department has reason to believe is in violation of this section.

281.36(9)(a)3. 3. Gain access to and inspect any records that a holder of a wetland individual permit or a person acting under the authority of a wetland general permit is required by the department to keep.

281.36(9)(d) (d) The department shall provide reasonable advance notice to the property owner before entering and inspecting property as authorized under par. (a).

281.36(9)(e) (e) If the owner of the property refuses to give consent for the entry and inspection, the department may do any of the following:

281.36(9)(e)1. 1. Apply for, obtain, and execute a special inspection warrant under s. 66.0119.

281.36(9)(e)2. 2. Deny an application for a wetland individual permit or deny authorization to proceed under a wetland general permit.

281.36(10) (10) Additional requirements. The requirement of being issued a wetland individual permit or proceeding under the authority of a wetland general permit under this section is in addition to any permit or other approval required by the department for a project or activity that involves a discharge into a wetland. This section governs the determination of whether a discharge is in compliance with water quality standards but does not affect the authority of the department to otherwise regulate the discharge of dredged or fill material in a wetland under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, 281.11 to 281.35, 281.41 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299.

281.36(11) (11) Restoration; surcharge fee.

281.36(11)(a) (a) The department shall set a surcharge fee to be charged for each application to proceed under a wetland general permit that is issued under sub. (3g) (a) 4., 5., or 6. The surcharge fee shall be set on an annual basis by the department and may not exceed more than 50 percent of the market price, as determined by the department, for the equivalent purchase of credits from a mitigation bank. These fees shall be credited to the appropriation account under s. 20.370 (9) (bm) for the restoration and creation of wetlands. The department may enter into agreements with other entities for the restoration and creation of such wetlands.

281.36(11)(b) (b) Any wetland that is restored or created using funding from the appropriation under s. 20.370 (9) (bm) shall be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof, but the department may establish reasonable restrictions on the use of the land by the public in order to protect public safety or to protect a unique plant or animal community.

281.36(12) (12) Application fees and time limits.

281.36(12)(a) (a) Fees required. The department shall charge a fee for reviewing, investigating, and making decisions on applications to proceed under wetland general permits under sub. (3g) and on applications for wetland individual permits under sub. (3m). For an authorization to proceed under a wetland general permit, the application fee shall be $500. For a wetland individual permit, the application fee shall be $800.

281.36(12)(b) (b) Additional fee. The department may set and charge a fee in the amount necessary to meet the costs incurred by the department in reviewing mitigation that is conducted by mitigation banks.

281.36(12)(c) (c) Adjustments in fees.

281.36(12)(c)1. 1. The department shall refund an application fee charged for a wetland individual permit under par. (a) if the applicant requests a refund before the department determines that the application is complete. The department may not refund a fee after the department determines that the application is complete unless required to do so under a rule promulgated under s. 299.05.

281.36(12)(c)2. 2. If the applicant submits an application for authorization to proceed under a wetland general or a wetland individual permit after the discharge is begun or after it is completed, the department shall charge an amount equal to twice the amount of the fee that it would have charged under this section.

281.36(12)(c)3. 3. The department may increase the fee specified in par. (a) only if the increase is necessary to meet the costs of the department in performing the activities for which the fee is charged.

281.36(12)(d) (d) Fee for expedited service.

281.36(12)(d)1. 1. The department, by rule, may charge a supplemental fee that is in addition to a fee charged under this subsection if all of the following apply:

281.36(12)(d)1.a. a. The applicant requests in writing that the decision on the application be issued within a time period that is shorter than the time limit promulgated under subd. 2. for the decision.

281.36(12)(d)1.b. b. The department verifies that it will be able to comply with the request.

281.36(12)(d)2. 2. If the department promulgates a rule under subd. 1., the rule shall contain a time limit for making decisions on the application.

281.36(12)(e) (e) Exemptions from fees. Paragraphs (a), (b), (c), and (d) do not apply to any federal agency or state agency.

281.36(12m) (12m) Local regulation of nonfederal or artificial wetlands. A local government may not enact an ordinance or adopt a resolution regulating a matter regulated under sub. (3n) (d) 1. or (3r) (a) (intro.) or (am), with respect to a discharge exempt from permitting requirements under sub. (4n) (b) or (c), or a matter regulated under sub. (4n). If a local government has in effect on March 30, 2018, an ordinance or resolution regulating nonfederal wetlands or artificial wetlands, the ordinance or resolution does not apply and may not be enforced.

281.36(13) (13) Parties to a violation.

281.36(13)(a) (a) Whoever is concerned in the commission of a violation of this section for which a forfeiture is imposed is a principal and may be charged and found in violation although he or she did not directly commit the violation and although the person who directly committed it has not been found in violation.

281.36(13)(b) (b) A person is concerned in the commission of the violation if the person does any of the following:

281.36(13)(b)1. 1. Directly commits the violation.

281.36(13)(b)2. 2. Aids and abets the commission of the violation.

281.36(13)(b)3. 3. Is a party to a conspiracy with another to commit the violation or advises, hires, counsels, or otherwise procures any person to commit it.

281.36(13m) (13m) Report to legislature. No later than January 31, 2003, and no later than January 31 of each subsequent odd-numbered year, the department shall submit to the legislature under s. 13.172 (2) a report that provides an analysis of the impact of the implementation of mitigation on wetland resources and on the issuance of permits or other approvals under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, 281.11 to 281.47 or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299. The department shall include in its report a discussion of proposals and projects under the property development grant program under s. 23.099.

281.36(14) (14) Penalties.

281.36(14)(a) (a) Except as provided in par. (b), any person who violates any provision of this section shall forfeit not less than $100 nor more than $10,000 for the first offense and shall forfeit not less than $500 nor more than $10,000 upon being found in violation of the same offense a 2nd or subsequent time.

281.36(14)(b) (b) Any person who violates a wetland general permit issued under sub. (3g) shall forfeit not less than $10 nor more than $500 for the first offense and shall forfeit not less than $50 nor more than $500 upon being found in violation of the same offense a 2nd or subsequent time.

281.36(14)(c) (c) A violation of any condition contained in a wetland general permit issued under sub. (3g) is a violation of the statute under which the general permit was issued.

281.36(14)(d) (d) In addition to the forfeitures specified under pars. (a) and (b), a court may order a defendant to abate any nuisance, restore a natural resource, or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the defendant.

281.36(14)(e) (e) Each day of a continuing violation is a separate offense.

281.36(14)(f) (f) The department may follow the procedures for the issuance of a citation under ss. 23.50 to 23.99 to collect a forfeiture for a violation of this section.

281.36 History History: 2001 a. 6; 2005 a. 253; 2011 a. 118, ss. 43, 45 to 47, 49 to 55, 57 to 118, 122, 123, 127 to 137, 141; 2013 a. 1, 20, 69, 80; 2013 a. 151 s. 27; 2013 a. 166 s. 77; 2013 a. 168, 173; 2015 a. 387; 2017 a. 21, 58, 59, 115, 118, 183; 2017 a. 365 s. 112; 2019 a. 59; 2023 a. 111.

281.36 Cross-reference Cross-reference: See also chs. NR 300, 351, 352, and 353, Wis. adm. code.

281.36 Annotation Once a violation of sub. (2) (a) [now sub. (3b) (b)] is proven, Goode, 219 Wis. 2d 654 (1998), sets forth a rebuttable presumption that the court should grant an injunction. The state is not required to prove particular instances of environmental harm to obtain an injunction. Once a violation is proven, it is the defendant who must establish compelling equitable reasons not to grant injunctive relief. State v. CGIP Lake Partners, LLP, 2013 WI App 122, 351 Wis. 2d 100, 839 N.W.2d 136, 12-2346.

281.36 Annotation Sub. (3n) (b) 5. requires that the Department of Natural Resources (DNR) consider the net positive or negative environmental impact of a proposed project before deciding to issue a wetland-fill permit. This consideration is necessary for DNR to meet the mandate in sub. (3n) (c) 3. that it may issue a wetland-fill permit only if it determines that the proposed project will not result in significant adverse environmental impacts. In this case, the permit stated that DNR lacked sufficient information to enable it to assess the proposed project’s net positive or negative environmental impact. Accordingly, DNR improperly issued the permit without being able to consider the proposed project’s net positive or negative environmental impact, contrary to sub. (3n) (b) 5. Meteor Timber, LLC v. Division of Hearings & Appeals, 2022 WI App 5, 400 Wis. 2d 451, 969 N.W.2d 746, 20-1869.

281.36 Annotation The legislature has set a tight timeline for the Department of Natural Resources (DNR) to process a wetland-fill permit application, and the legislature has mandated that at the end of that timeline DNR must decide to issue or deny the permit and explain in the case of a denial why the permit does not meet statutory standards or is incomplete. The applicant in this case pointed to no statutory language authorizing DNR to issue a permit if it had not received sufficient information within that timeline. In that situation, the legislature has provided that DNR must deny the permit as incomplete, and the applicant may seek administrative and judicial review of that denial or submit a new application with all necessary information. Meteor Timber, LLC v. Division of Hearings & Appeals, 2022 WI App 5, 400 Wis. 2d 451, 969 N.W.2d 746, 20-1869.

281.36 Annotation Sub. (3n) (b) and (c) requires the Department of Natural Resources (DNR) to consider the entirety of a proposed project when addressing a wetland individual permit, not just the wetlands within the proposed project. By its plain meaning, sub. (3n) (c) instructs DNR to determine whether a proposed project will result in significant adverse impacts to wetland functional values and water quality and whether the proposed project will result in other significant adverse environmental consequences. That review necessarily requires DNR to consider impacts beyond the physical footprint of directly impacted wetlands. For example, DNR must consider potential secondary impacts to wetland functional values and the net positive or negative environmental impact of the proposed project. Kohler Co. v. DNR, 2024 WI App 2, 410 Wis. 2d 433, 3 N.W.3d 172, 21-1187.

281.36 Annotation Wisconsin’s Wetland Reform Act. Kent & Lamb. Wis. Law. Feb. 2013.

281.37 281.37 Wetland mitigation grant program.

281.37(1) (1) In this subsection:

281.37(1)(a) (a) “Department land” means land owned by or under easement to the state that is under the jurisdiction of the department and used for one of the purposes specified in s. 23.09 (2) (d).

281.37(1)(b) (b) “Mitigation program” means the wetland mitigation grant program established under sub. (2).

281.37(1)(c) (c) “Nonprofit organization” means an organization that is described in section 501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

281.37(2) (2) The department shall establish a wetland mitigation grant program under which it awards grants to nonprofit organizations to conduct projects to create, restore, or enhance wetlands under the in lieu fee subprogram in s. 281.36 (3r) (e) on department land as provided in this subsection.

281.37(3) (3) No later than 6 months after March 30, 2018, the department shall identify department land that is appropriate to include in the mitigation program. The department shall identify no less than 25 percent of department land for this purpose. The land identified shall include land in every watershed in the state.

281.37(4) (4) 

281.37(4)(a) (a) No later than 3 months after completion of the land identification stage under sub. (3) or at the beginning of the following fiscal year, whichever is earlier, and no later than July 1 of each subsequent year, the department shall issue a request for proposals from nonprofit organizations for grants to conduct wetland mitigation projects on department land identified under sub. (3). The issuance of each new request for proposal begins a new grant cycle.

281.37(4)(b) (b) The department shall require applications for grants under this section to include all of the following:

281.37(4)(b)1. 1. The scope of the proposed project.

281.37(4)(b)2. 2. A project timeline.

281.37(4)(b)3. 3. If possible, a specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the project area does not provide or only sparsely provides.

281.37(4)(b)4. 4. A specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the proposed project would create, restore, or enhance.

281.37(4)(b)5. 5. All information required to be submitted for approval to the U.S. army corps of engineers under 33 CFR part 332 and the Wisconsin Wetland Conservation Trust program instrument.

281.37(4)(c) (c) After issuing the request for proposals under par. (a), the department shall accept grant applications on a rolling basis over the course of a fiscal year. The department shall select and announce grant recipients under this subsection at the end of each quarter as funds are available.

281.37(5) (5) 

281.37(5)(a) (a) If an application under sub. (4) is approved, the grantee and the department, in consultation, shall identify all department permits required for the grantee to conduct the project. The department shall waive all permit fees for the grantee in relation to department permits required to conduct the project.

281.37(5)(b) (b) Notwithstanding timelines otherwise established for individual permits, within 60 days of receiving the grantee’s application for an individual permit that is required to conduct the project, the department shall render a decision issuing, denying, or modifying the permit, and the department shall adjust all other deadlines relating to the review of the application accordingly.

281.37(7) (7) 

281.37(7)(a) (a) The department shall pay out a grant under the mitigation program quarterly unless the department determines that more frequent payments are necessary to fulfill the objectives of the grant program. The department shall withhold the final payment until the grantee certifies that the project is complete.

281.37(7)(b) (b) If the grantee fails to certify that the project is complete by the date indicated for completion in its application, the department shall use the remaining unpaid grant amount to either complete the project or contract with or issue a grant to another nonprofit organization to complete the project. An organization that fails to certify completion of a project by the date indicated in its application for completion is not eligible for a new grant under the mitigation program for 2 grant cycles.

281.37(7)(c) (c) The department may agree to a modified deadline for the project if unusual or unforeseen circumstances cause a delay. If the department agrees to a modified deadline, the consequences under par. (b) apply only if the grantee fails to certify that a project is complete by the date indicated in that agreement.

281.37(8) (8) Before 6 months have elapsed after the 5th anniversary of the department’s first issuance of a request for proposals under sub. (4), the department shall submit to the legislature under s. 13.172 (2) a report analyzing the effectiveness of the first 5 years of the mitigation program and making recommendations for changes to the program.

281.37 History History: 2017 a. 183.