Chapter 281

281.36(3q)(g) (g) Administrative hearing.

281.36(3q)(g)1. 1. An administrative hearing under this subsection shall be treated as a contested case under ch. 227.

281.36(3q)(g)2. 2. If a stay under par. (d) 1. is in effect, the hearing examiner shall, within 30 days after receipt of the referral under par. (f) 4., determine whether continuation of the stay is necessary to prevent significant adverse impacts or irreversible harm to the environment pending completion of the administrative hearing. The hearing examiner shall make the determination based on the request under par. (d) 1., any response from the applicant under par. (e), and any testimony at a public hearing or any public comments. The determination shall be made without a hearing.

281.36(3q)(g)3. 3. An administrative hearing under this subsection shall be completed within 90 days after receipt of the referral of the petition under par. (f) 4., unless all parties agree to an extension of that period. In addition, a hearing examiner may grant a one-time extension for the completion of the hearing of up to 60 days on the motion of any party and a showing of good cause demonstrating extraordinary circumstances justifying an extension.

281.36(3q)(g)4. 4. Notwithstanding s. 227.44 (1), the department shall provide a notice of the administrative hearing at least 30 days before the date of the hearing to all of the following:

281.36(3q)(g)4.a. a. The applicant.

281.36(3q)(g)4.b. b. Each petitioner, if other than the applicant.

281.36(3q)(g)4.c. c. Any other persons required to receive notice as provided under sub. (3p).

281.36(3q)(g)5. 5. In an administrative hearing under this subsection, the petitioner shall proceed first with the presentation of evidence and shall have the burden of proof.

281.36(3q)(h) (h) Judicial review.

281.36(3q)(h)1. 1. Any person whose substantial interest is affected by a decision of the department under par. (b) 1. or 2. may commence an action in circuit court to review that decision.

281.36(3q)(h)2. 2. Any party aggrieved by a decision of the hearing examiner under par. (g) may commence an action in circuit court to review that decision.

281.36(3r) (3r) Mitigation; in lieu fee subprogram.

281.36(3r)(a) (a) The department shall establish a mitigation program that applies only to the issuance of wetland individual permits and, with respect to a discharge that is exempt from permitting requirements under sub. (4n) (b) that affects more than 10,000 square feet of wetland or under sub. (4n) (c) that affects more than 1.5 acres of wetland, the portion of the affected wetland that exceeds 10,000 square feet or 1.5 acres, respectively. Under the mitigation program, subject to par. (am), the department shall allow mitigation to be accomplished by any of the following methods:

281.36(3r)(a)1. 1.

281.36(3r)(a)1.a. a. Except as provided in subd. 1. b. and par. (ag), purchasing credits from a mitigation bank located in the same HUC 8 as the wetland impacted by the discharge.

281.36(3r)(a)1.b. b. Except as provided in subd. 1. c. and par. (ag), if credits are not available to be purchased as provided under subd. 1. a., credits may be purchased from a mitigation bank within the same bank service area as the wetland impacted by the discharge.

281.36(3r)(a)1.c. c. Except as provided in par. (ag), if credits are not available to be purchased as provided under subd. 1. b., credits may be purchased from a mitigation bank in the same basin as the wetland impacted by the discharge.

281.36(3r)(a)2. 2. Participating in the in lieu fee subprogram under par. (e).

281.36(3r)(a)3. 3. Completing mitigation within the same watershed or within one-half mile of the site of the discharge.

281.36(3r)(ag) (ag) The department may, in consultation with the U.S. army corps of engineers, allow credits to be purchased from a different mitigation bank than the one prescribed under par. (a) 1. or allow mitigation to be done through the in lieu fee subprogram rather than by purchasing credits from a mitigation bank if the department determines it would better serve natural resource goals, such as retaining flood water, improving or restoring wildlife habitat, or more closely matching the impacted wetland type. The department may also consider economic factors when making this determination only if the HUC 8 has one approved mitigation bank and that bank is charging a price for credits in that watershed that is in excess of 150 percent of the price of a credit in that watershed under the in lieu fee subprogram.

281.36(3r)(am) (am) For a discharge that is exempt from permitting requirements under sub. (4n) (b) or (c), any off-site mitigation, including any mitigation conducted by a mitigation bank or under the in lieu fee subprogram, shall be completed within the same compensation search area, as defined by the department by rule, as the discharge.

281.36(3r)(b) (b) Under the mitigation program, mitigation as specified in par. (a) 1. and participation in the in lieu fee subprogram shall be the preferred types of mitigation.

281.36(3r)(c) (c) The department shall establish a system of service areas for the mitigation banks under the mitigation program that is geographically based on the locations of the major watersheds in the state. The system shall be consistent with federal regulations.

281.36(3r)(cm) (cm) Before entering into an agreement with a sponsor of a mitigation bank to establish such a bank or before otherwise approving a mitigation bank, the department shall provide written notice that a mitigation bank may be established. The notice shall be given to each city, village, town, and county in which each proposed mitigation bank site will be located. Each city, village, town, and county receiving the notice shall be given an opportunity to submit comments regarding the establishment of the mitigation bank. The notice shall contain all of the following information:

281.36(3r)(cm)1. 1. The name of the sponsor of the proposed mitigation bank.

281.36(3r)(cm)2. 2. A brief description of the mitigation bank and all of its bank sites.

281.36(3r)(cm)3. 3. A date after which the department will not accept comments from the affected cities, villages, towns, or counties.

281.36(3r)(cm)4. 4. An address to which any comments shall be submitted.

281.36(3r)(d) (d)

281.36(3r)(d)1. 1. The department shall establish under the mitigation program mitigation ratios that are consistent, to the greatest extent possible, with the federal regulations that apply to mitigation and mitigation banks but, unless subd. 2. applies, the minimum ratio shall be at least 1.2 acres for each acre affected by the discharge.

281.36(3r)(d)2. 2. For mitigation that occurs within the same watershed in which the discharge is located or within one-half mile of the site of the discharge, the ratio established by the department shall equal 90 percent of the ratio that would apply if the mitigation were to occur outside the watershed or were to occur one-half mile or more from the site of the discharge, but the ratio established under this subdivision may be no less than 1.2 acres for each acre affected by the discharge.

281.36(3r)(e) (e) As part of the mitigation program established under par. (a), the department shall establish an in lieu fee subprogram, under which payments are made to the department or another entity for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features. The subprogram must be approved by the U.S. army corps of engineers. The department shall establish requirements for calculating the in lieu fee payments. Under the in lieu fee subprogram, the wetlands that benefit from the subprogram may be open to the public for hunting, fishing, trapping, cross-country skiing, or hiking or any combination thereof. In determining approved mitigation projects that benefit from the subprogram, the department shall, to the extent practicable, ensure that there is no net loss of public access to wetlands. If the wetlands that benefit from the subprogram are open to the public, 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. The subprogram shall be consistent with federal regulations.

281.36(3t) (3t) Rules for mitigation. The department shall promulgate rules to establish a process for the mitigation program under sub. (3r). The rules shall address all of the following:

281.36(3t)(a) (a) Requirements for the analysis of practicable alternatives that is included in an application for a wetland individual permit under sub. (3m) (b).

281.36(3t)(b) (b) The conditions under which credits may be purchased from a mitigation bank to comply with the mitigation program under sub. (3r).

281.36(3t)(c) (c) Enforcement of requirements under the mitigation program under sub. (3r) that apply to mitigation projects and mitigation banks.

281.36(3t)(d) (d) Baseline studies of wetlands that will be affected by the discharges and of sites for mitigation projects.

281.36(3t)(e) (e) Plan and design requirements for mitigation projects and mitigation bank sites, which shall include requirements for relating the design of a mitigation project or a mitigation bank site to the hydrology of the watershed in which a mitigation project or mitigation bank site is located.

281.36(3t)(f) (f) Standards for comparing wetlands that will be restored, enhanced, created, or preserved as a mitigation project or at a mitigation bank site to the wetlands that will be adversely affected by discharges, including all of the following:

281.36(3t)(f)1. 1. Consideration of the size, location, type and quality of the
wetlands.

281.36(3t)(f)2. 2. Consideration of the functional values performed by the
wetlands.

281.36(3t)(g) (g) Financial assurance requirements for the construction of mitigation projects by mitigation banks.

281.36(3t)(h) (h) Standards for measuring the short-term and long-term success of mitigation projects and mitigation bank sites and requirements for the short-term and long-term monitoring of mitigation projects and mitigation bank sites.

281.36(3t)(i) (i) Remedial actions to be taken by holders of wetland individual permits for mitigation projects that are not successful and actions to be taken by mitigation banks for mitigation projects performed by the mitigation banks that are not successful.

281.36(3w) (3w) Release of credits.

281.36(3w)(a) (a) In this subsection:

281.36(3w)(a)1. 1. “Applicant” means the applicant for a wetland individual permit for which wetland mitigation is required under sub. (3n) (d) or the proponent of a wetland mitigation project required under sub. (3n) (d).

281.36(3w)(a)2. 2. “Bank sponsor” means any public or private entity financially responsible for establishing or operating a mitigation bank.

281.36(3w)(a)3. 3. “Compensation site plan” means a comprehensive document prepared by an applicant or bank sponsor that provides a thorough description of a proposed wetland mitigation project.

281.36(3w)(a)4. 4. “Developing mitigation bank” means a mitigation bank that has not completed its mitigation project and that has not yet been established under an agreement between the bank sponsor and the department or otherwise approved by the department.

281.36(3w)(a)5. 5. “Estimated credits” means the total number of credits that a developing mitigation bank estimates it will have once its mitigation project is constructed.

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)(d) (d) Maintenance of drainage 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(4m)(a)3. 3. Completing mitigation within this state.

281.36(4m)(b) (b) The department shall waive water quality certification under 33 USC 1341 (a) (1) for a discharge under par. (a).

281.36(4n) (4n) Exemptions; certain nonfederal wetlands and artificial wetlands.

281.36(4n)(a) (a) In this subsection:

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)1.b. b. A wetland created as a result of a mitigation requirement under sub. (3r).

281.36(4n)(a)2. 2. “Definitive evidence” means documentary evidence such as any of the following: