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. 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)(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)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)(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)(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)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)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:
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