281.36(3w)(a)6.6. “Mitigation banking instrument” means the legal document that governs the establishment, operation, and use of a mitigation bank. 281.36(3w)(b)(b) A developing mitigation bank may sell its estimated credits under the mitigation program under sub. (3r) only if the mitigation bank has met the financial assurance requirements established by the department under sub. (3t) (g) and, except as provided under par. (c), only in accordance with the following schedule: 281.36(3w)(b)1.1. No more than 20 percent of the estimated credits after the department approves and executes the mitigation banking instrument. 281.36(3w)(b)2.2. No more than 65 percent of the estimated credits after the department issues a letter of compliance stating that construction and all corrective actions are complete. 281.36(3w)(b)3.3. No more than 85 percent of the estimated credits after the department approves a monitoring report for the mitigation bank or after 2 years have passed after construction of the mitigation project is completed, whichever is later. 281.36(3w)(b)4.4. One hundred percent of the estimated credits after the department approves the final monitoring report for the mitigation bank and determines that all performance standards identified in the compensation site plan are met. 281.36(3w)(c)(c) The department may authorize a developing mitigation bank to sell its estimated credits at a faster rate than the schedule under par. (b) allows if the bank provides an additional level of financial assurance or if the mitigation is of a type that is less prone to failure, such as wetland preservation or enhancement. 281.36(3w)(d)(d) After the department approves and executes a mitigation banking instrument establishing the specifications for a developing mitigation bank, the sponsor of the bank may not change the mitigation banking instrument without the approval of the department. After the sponsor of a developing mitigation bank submits to the department a proposed change to the mitigation banking instrument for review, the mitigation bank may not sell any estimated credits under par. (b) until one of the following occurs: 281.36(3w)(d)1.1. The department approves the change to the mitigation banking instrument, and the mitigation bank sponsor and the department adjust the estimated credits and make any necessary adjustments to the credit release schedule under par. (b), if the department believes these adjustments are necessary based on the change to the mitigation banking instrument. 281.36(3w)(d)2.2. The department rejects the changes submitted by the mitigation bank sponsor, in which case the existing mitigation banking instrument remains effective. 281.36(4)(4) Exemptions; certain activities. Except as provided in sub. (5), the permitting requirement under sub. (3b) does not apply to any discharge that is the result of any of the following activities: 281.36(4)(a)(a) Normal farming, silviculture, or ranching activities. 281.36(4)(am)(am) Normal aquaculture activities, if the discharge is to a wetland created for aquacultural purposes in an area without any prior wetland history. In this paragraph, “normal aquaculture activities” includes all of the following: 281.36(4)(am)1.1. Construction, maintenance, or repair of ponds, raceways, or other similar retention structures used in fish farms. 281.36(4)(am)2.2. The filling in or drawing down of ponds, raceways, or other similar retention structures used in fish farms. 281.36(4)(am)3.3. Maintenance or improvement of swales or other drainage areas into or out of ponds used in fish farms. 281.36(4)(am)4.4. Maintenance, repair, or replacement of drains, pipes, or other flowage controls used in fish farms. 281.36(4)(b)(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a wetland. 281.36(4)(c)(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches. 281.36(4)(e)(e) Construction or maintenance of farm roads, roads used in fish farms, 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: 281.36(4)(e)1.1. That the flow and circulation patterns and chemical and biological characteristics of the affected wetland are not impaired. 281.36(4)(e)2.2. That the reach of the affected wetland is not reduced. 281.36(4)(e)3.3. That any adverse effect on the aquatic environment of the affected wetland is minimized to the degree required by the department. 281.36(4)(f)(f) Maintenance, operation, or abandonment of a sedimentation or stormwater detention basin and associated conveyance features that were not originally constructed in a wetland. 281.36(4m)(4m) Exemption and waiver; electronics and information technology manufacturing zone. 281.36(4m)(a)(a) The permitting requirement under sub. (3b) does not apply to any discharge into a wetland located in an electronics and information technology manufacturing zone designated under s. 238.396 (1m) if the discharge is related to the construction, access, or operation of a new manufacturing facility in the zone and all adverse impacts to functional values of wetlands are compensated at a ratio of 2 acres per each acre impacted through any of the following methods, consistent with the rules promulgated under this section: 281.36(4m)(a)1.1. Purchasing credits from a mitigation bank located in this state. 281.36(4m)(a)2.2. Participating in the in lieu fee subprogram under sub. (3r), under which the department shall identify and consider mitigation that could be conducted within the same watershed and may locate mitigation outside the watershed only upon agreement of the department and the person exempt from permitting under this subsection. 281.36(4n)(4n) Exemptions; certain nonfederal wetlands and artificial wetlands. 281.36(4n)(a)1.1. “Artificial wetland” means a landscape feature where hydrophitic vegetation may be present as a result of human modification to the landscape or hydrology and for which the department has no definitive evidence showing a prior wetland or stream history that existed before August 1, 1991, but does not include any of the following: 281.36(4n)(a)1.a.a. A wetland that serves as a fish spawning area or a passage to a fish spawning area. 281.36(4n)(a)2.2. “Definitive evidence” means documentary evidence such as any of the following: 281.36(4n)(a)3.3. “Rare and high quality wetland” means a wetland that is directly adjacent or contiguous to a class I or class II trout stream or that consists of 75 percent or more of any of the following wetland types: 281.36(4n)(b)(b) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into a nonfederal wetland that occurs in an urban area and to which all of the following apply: 281.36(4n)(b)1.1. The discharge does not affect more than one acre of wetland per parcel. 281.36(4n)(b)2.2. The discharge does not affect a rare and high quality wetland. 281.36(4n)(b)3.3. The development related to the discharge is carried out in compliance with any applicable storm water management zoning ordinance enacted under s. 59.693, 60.627, 61.354, or 62.234 or storm water discharge permit issued under s. 283.33. 281.36(4n)(c)(c) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into a nonfederal wetland that occurs outside an urban area and to which all of the following apply: 281.36(4n)(c)1.1. The discharge does not affect more than 3 acres of wetland per parcel. 281.36(4n)(c)2.2. The discharge does not affect a rare and high quality wetland. 281.36(4n)(c)3.3. The development related to the discharge is a structure, such as a building, driveway, or road, with an agricultural purpose. 281.36(4n)(d)(d) Subject to par. (e), the permitting requirement under sub. (3b) does not apply to any discharge into an artificial wetland. 281.36(4n)(e)1.1. A person who proposes a project that may affect a wetland or landscape feature under par. (b), (c), or (d) shall notify the department no fewer than 15 working days before initiating the project. The notice shall include one of the following to show that the wetland or landscape feature is eligible for the relevant exemption: 281.36(4n)(e)1.a.a. A statement issued by a professional who has investigated the wetland and who is qualified to give such an opinion. 281.36(4n)(e)1.b.b. A wetland delineation prepared by a qualified professional showing the exact location and boundaries of the wetland. 281.36(4n)(e)2.2. Except as provided in subd. 3., if the department receives the notice and information required under subd. 1., the department shall presume that the wetland or landscape feature is eligible for the exemption unless the department, within 15 working days after receiving notification of the proposed project under subd. 1., notifies the person that one of the following conditions applies: 281.36(4n)(e)2.b.b. The location and boundaries of the wetland identified in a wetland delineation included with the notification under subd. 1. are not accurate. 281.36(4n)(e)2.c.c. With respect to an exemption under par. (d) only, the department determines that the landscape feature is providing significant functions that either protect adjacent or downstream property or infrastructure from flooding or significantly improve the water quality of an adjacent or downstream water body. 281.36(4n)(e)3.3. If the department receives the notice and information required under subd. 1. but is unable to determine based on that information whether the eligibility requirements are met, the department may, within 15 working days after the notification under subd. 1., notify the person one time to request additional information about the parcel of land. The person shall cooperate with the department’s efforts to obtain information about the relevant parcel of land and may proceed with the project only upon notification that the department has determined the landscape feature to be eligible for the exemption based on the definitive evidence. 281.36(4n)(e)4.4. If, within 15 working days after the notification is delivered to the department, the department notifies the person that subd. 2. a., b., or c. applies, the person may not proceed with the project unless authorized by, or otherwise exempted from, a wetland general or individual permit under this section. 281.36(4r)(4r) Drainage district activity exemption. 281.36(4r)(a)(a) The permitting requirement under sub. (3b) does not apply to any discharge that is the result of activity undertaken by a drainage district to maintain drainage district drains in accordance with plans and specifications approved by the department of agriculture, trade and consumer protection. 281.36(4r)(b)(b) The department shall waive any water quality certification requested under 33 USC 1341 (a) for a discharge described under par. (a). 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(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.
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Chs. 279-299, Natural Resources
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