LRB-2940/1
MGG&RPN:cjs:ch
2001 - 2002 LEGISLATURE
March 26, 2001 - Printed by direction of Senate Chief Clerk.
AB215-engrossed,1,2
1An Act to amend 281.98 (1) and 299.95; and
to create 281.163 of the statutes;
2relating to: discharges of dredged or fill material into nonfederal wetlands.
Analysis by the Legislative Reference Bureau
Engrossment information:
The text of Engrossed 2001 Assembly Bill 215, consists of the bill, as passed by
the assembly on March 20, 2001, as affected by the following documents adopted in
the assembly on March 20, 2001: the bill as affected by Assembly Amendment 1 and
Assembly Amendment 3. The text also includes the March 20, 2001, chief clerk's
correction to the bill.
Content of Engrossed 2001 Assembly Bill 215:
Under federal law, activities involving the discharge of dredged or fill material
into "navigable waters" must comply with certain guidelines contained in
regulations promulgated by the federal environmental protection agency (EPA) in
order for a discharge permit to be issued by the U.S. army corps of engineers (ACE).
Before ACE may issue a permit, the department of natural resources (DNR) must
determine that the project complies with state water quality standards, including
those for wetlands.
Federal law defines "navigable waters" to be "the waters of the United States."
ACE in turn has interpreted "the waters of the United States" to include
nonnavigable, isolated, intrastate wetlands if they serve as habitat for migratory
birds that cross state lines.
A recent U.S. Supreme Court decision, Solid Waste Agency of Northern Cook
County v. Army Corps of Engineers, 69 U.S.L.W. 4048 (2001), limited the types of
bodies of waters for which ACE discharge permits are required. The court held that
these nonnavigable, isolated, intrastate wetlands that serve as habitat for migratory
birds cannot be interpreted by ACE to be navigable waters and that, therefore, no
ACE discharge permits are required to discharge dredged or fill material into these
wetlands.
This bill places a moratorium on any person discharging dredged or fill material
into wetlands for which ACE discharge permits are no longer required, with certain
exceptions. Discharges that are authorized by certain permits or approvals under
state law, discharges that are not subject to these requirements and that would have
been exempt on January 8, 2001, from the wetland water quality standards set by
DNR, discharges that are allowed under discharge permits that were issued by ACE
before the date of the U.S. Supreme Court decision, and discharges that are the result
of activities that would have qualified for an exemption from the federal permitting
process on January 8, 2001 are excepted from the moratorium. These provisions
sunset on the earlier of these two dates: July 1, 2001, or the day following the
effective date of legislation that affords protection to these wetlands that is
comparable to, or more protective than, the protection afforded under the federal
permitting process.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB215-engrossed,2,3
2281.163 Prohibitions against discharges into nonfederal wetlands. (1)
3Definitions. In this section:
AB215-engrossed,2,74
(a) "Nonfederal wetland" means a wetland to which the federal permitting
5process under
33 USC 1344 does not apply due to the decision in Solid Waste Agency
6of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan.
79, 2001) but to which such permitting process did apply on January 8, 2001.
AB215-engrossed,2,88
(b) "Wetland" has the meaning given in s. 23.32 (1).
AB215-engrossed,2,10
9(2) Prohibition. No person may discharge dredged or fill material into a
10nonfederal wetland.
AB215-engrossed,3,3
1(3) Inapplicability. (a) Subsection (2) does not apply to a person who
2discharges dredged or fill material into a nonfederal wetland if any of the following
3applies:
AB215-engrossed,3,74
1. The person has received notification from the department that the discharge
5is authorized by a permit or other approval under ss. 59.692, 61.351, 62.231, 87.30,
6281.11 to 281.16, 281.165 to 281.47, or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291,
7292, 293, 295, or 299.
AB215-engrossed,3,138
2. The person has received notification from the department that the discharge
9is not subject to a permitting or other approval requirement under ss. 59.692, 61.351,
1062.231, 87.30, 281.11 to 281.16, 281.165 to 281.47, or 281.49 to 281.85 or ch. 30, 31,
11283, 289, 291, 292, 293, 295, or 299 and the discharge would have been exempt on
12January 8, 2001 from the water quality standards for wetlands that are set under
13rules promulgated under s. 281.15 (1).
AB215-engrossed,3,1914
3. The person has received notification from the department that the discharge
15is permitted under a permit issued by the U.S. army corps of engineers on or before
16January 8, 2001, and a water quality certification required by rules promulgated by
17the department to implement
33 USC 1341 (a) has been issued by the department
18on or before January 8, 2001, and the discharge is performed in compliance with that
19permit.
AB215-engrossed,3,2520
4. The person has received notification from the department that the discharge
21is the result of an activity that would have qualified for an exemption under
33 USC
221344 (f) on January 8, 2001, or under any other regulation, rule, memorandum of
23agreement, guidance letter, or other provision established by a federal agency that
24was promulgated or adopted pursuant to that subsection or that was used to
25implement that subsection and that was in effect on January 8, 2001.
AB215-engrossed,4,1
1(b) This section does not apply beginning on the earlier of the following:
AB215-engrossed,4,83
2. The day after the effective date of legislation enacted by the state legislature
4that subjects discharges of dredged or fill material into nonfederal wetlands to a
5certification process that includes provisions that afford protection to nonfederal
6wetlands that is comparable to, or more protective than, the protection afforded
7under the federal certification and permitting processes under
33 USC 1341 (a) and
81344 that applied to nonfederal wetlands on January 8, 2001.
AB215-engrossed,4,1510
281.98
(1) Except as provided in ss. 281.47 (1) (d), 281.75 (19) and 281.99 (2),
11any person who violates this chapter or any rule promulgated or any plan approval,
12license or special order issued under this chapter
or who violates the prohibition
13under s. 281.163, shall forfeit not less than $10 nor more than $5,000 for each
14violation. Each day of continued violation is a separate offense. While an order is
15suspended, stayed or enjoined, this penalty does not accrue.
AB215-engrossed,5,7
17299.95 Enforcement; duty of department of justice; expenses. The
18attorney general shall enforce chs. 281 to 285 and 289 to 295 and this chapter, except
19ss. 281.48, 285.57, 285.59 and 299.64, and all rules, special orders, licenses, plan
20approvals and permits of the department, except those promulgated or issued under
21ss. 281.48, 285.57, 285.59 and 299.64 and except as provided in s. 285.86
, and shall
22enforce the prohibition under s. 281.163. The circuit court for Dane county or for any
23other county where a violation occurred in whole or in part has jurisdiction to enforce
24chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan
25approval or permit by injunctional and other relief appropriate for enforcement. For
1purposes of this proceeding where chs. 281 to 285 and 289 to 295 or this chapter or
2the rule, special order, license, plan approval or permit prohibits in whole or in part
3any pollution, a violation is considered a public nuisance. The department of natural
4resources may enter into agreements with the department of justice to assist with
5the administration of chs. 281 to 285 and 289 to 295 and this chapter. Any funds paid
6to the department of justice under these agreements shall be credited to the
7appropriation account under s. 20.455 (1) (k).
