Wetlands battle

– more on wetlands
An assessment prepared by Caryl Terrell, Sierra Club-John Muir Chapter, and Charlie Luthin, Wisconsin Wetlands Association
On Monday, May 7th, Wisconsin Governor Scott McCallum signed a wetlands protection legislation that gives authority to the Wisconsin DNR to regulate the development of isolated wetlands. The Jan 8, 2001, US Supreme Court decision had left isolated wetlands unprotected by restricting the authority of the U.S. Army Corps of Engineers (COE) to regulate wetlands not connected with a navigable water.
The law, 2001 Wisconsin Act 6, is the first of its kind nationwide to restore wetlands regulation to the state after federal authority had been revoked. 2001 WI Act 6 restores protection to over one million acres of isolated wetlands in Wisconsin.

The new law is a compromise, but the environmental, wetland restoration and conservation communities are generally quite pleased with it.

Our mantra was: “We want a ‘status quo’ bill, nothing more and nothing less than existed before this windfall for developers.” The Senate very quickly (Feb. 13, 2001) passed SB 37, which met our goal, on a strong bi-partisan vote of 27-6.

Seeing no action on SB 37 in the Assembly, the Senate passed a moratorium bill in March. In addition, the Assembly eventually passed their version of a weak moratorium bill. Later the Assembly began hearings on Rep. Kedzie’s isolated wetlands bill, AB 322, which the conservation community opposed.

While legislators from the Senate and Assembly tried to reach common ground on language for an acceptable bill, another group met in negotiating sessions several times a week. This core group included Mike Theo and Tom Larson of WI Realtors Association, Charlie Luthin, Sean Dilweg, Kirk McVoy and Tom Dawson of WI Wetlands Association, Scott Kelly of the Governor’s Office and Patrick Henderson of Senator James Baumgart’s office.

As needed, this group also met with Dave Siebert and Atty. Mike Cain of WI DNR, and John Stolzenberg and Rachel Letzing of the WI Legislative Council for legal and drafting assistance. Pat Henderson and Sean Dilweg regularly met with legislators and staff from the Senate and Assembly and with the staff of Governor Scott McCallum.

We mention these parties to illustrate that there were at least two very different scenarios unfolding throughout the process. The core group was negotiating as narrow a bill as possible under the sponsorship of the Governor who indicated he would sponsor such a consensus bill in a special session.

The more public process included many well-attended legislative hearings and several legislative votes. Intense public education on the value of wetlands and lobbying of legislators by an extremely broad range of sports hunting and fishing, lakes and rivers associations, land conservation, environmental and other groups.

Opposition came from the realtors, builders, developers, municipalities, Farm Bureau, agri-business and other business groups.

There was, of course, a “war of words” in the press and Op Ed columns. This “spirited dialogue” was set aside when the consensus was declared complete and the Governor called a Special Session on May 1st. Both houses of the Legislature passed Special Session SB 1 unanimously (33-0 and 94-0) that same week and the Governor signed the bill on Monday May 7, 2001.

Some Components of the New Law

Wisconsin has very good administrative rules in place, NR 103 Water Quality Standards for Wetlands. Since 1991, NR 103 has been the basis for DNR 401 review of Corps of Engineers 404 wetland permits. NR 103 includes “avoid, minimize, mitigate” and requires evaluation of practicable alternatives. The rules were adopted after more than a decade long fight to get them in place.

Once in place the loss of wetland acres in Wisconsin dropped from an average of 1,400 acres/yr to only 330 acres/yr (p. 25 WDNR, The State of the Natural Resources, Earth Day 2000). These rules remain controversial, so we had to be careful not to put any part of NR 103 into the proposed bill, for fear that mischief in the bill would force revisions in NR 103.

For a “status quo” bill, we had difficulty documenting the exact inspection and enforcement powers of the US Army Corps of Engineers. The COE inspects under a Memorandum of Agreement (MOA) with the US Environmental Protection Agency. The state previously had no inspection authority, except through the Corps’ jurisdiction. There was an involved debate over property rights and privacy of documents.

The new law allows DNR to inspect any property on which an application for a permit is submitted until 30 days after the permitted discharge and any related conditions of the permit have ended or ending on the date of denial or withdrawal of the application. The new law allows the DNR to inspect a property if it has “reason to believe” an infraction has occurred.

Previous versions of the bill would have required the DNR to have “probable cause” if there was a violation, a higher standard. If the owner refuses access, DNR agents are required to obtain warrants from a court before they can conduct on-site property inspections. DNR may inspect required records only in presence of the permit holder or the holder’s designee, unless waived. The level of penalties was reduced from the previous federal levels.

In the new law, small (less than one acre) isolated wetlands that are proposed to be filled for “public safety” as authorized by a local government entity (city, village, town or county) or a state or federal transportation agency, may have an expedited review process for “practicable alternatives,” following public notice, public comment and possibly a public hearing and/or judicial review.

Frankly, we are not sure how well this new process will work. DNR retains the ability to deny the water quality certification based on the wetland’s functional values. Under a WDNR-WisDOT Memorandum of Agreement (MOA), DNR already considers public safety. Also under the MOA, WisDOT was required to provide mitigation for wetland losses.

In the new law, DNR is required to make a determination on isolated wetland applications within 120 days after the completed (DNR determines completeness) application is submitted, unless the applicant and the DNR agree to an extension. The DNR is further required to establish a timeline for review of all wetland applications by administrative rules.

If the DNR fails to meet the timeline, the applicant may petition a court to compel DNR to approve or deny the application (mandamus). If the court grants the petition, DNR must comply within 30 days and the applicant shall be awarded reasonable attorney fees and court costs.

The same exemptions from discharge permits allowed under federal law are included in the new law. These include: normal farming, forestry and ranching activities, maintenance and reconstruction of damaged parts of structures that are in bodies of water, maintenance of drainage ditches, and construction and maintenance of certain farm roads, forest roads and temporary mining roads if certain requirements are met (general permits).

As under federal law, a discharge that would be exempt loses its exemption if the discharge is incidental to an activity that brings the nonfederal wetland into a use for which it was not previously used and if the activity may impair the flow or circulation or reduce the reach of any nonfederal wetland. DNR is required to establish these exemptions and interpretations by the federal government into administrative rule.

The new law requires the DNR to issue general water quality certifications (general permits) consistent with those issued by the COE before the US Supreme Court decision. Wisconsin already has state specific general permits, LP/GLOP, which will expire after five years.

Some of the issues that were raised but rejected during negotiations include: presumptive approval, no inspection authority, require evidence (probable cause) of violation for inspection;

additional exemptions, exempt wetlands under one acre;
expedited review (i.e. no practicable alternatives analysis) or total exemption from water quality certification for projects deemed for “public purpose;
classification of wetlands by function; local governments to include agricultural drainage districts and utility districts (water, sewer, gas pipelines, transmission lines, power plants);
removal of the standard Army Corps of Engineers manual in determining a wetland designation;
wetland banks administered locally;
use of federal definition of navigability (this is more narrow than WI’s definition of navigability);
new definition of artificial wetland.
All of these issues were originally proposed to extend to all Wisconsin wetlands, not just those wetlands isolated from navigable waters covered by the SWANCC decision of the US Supreme Court.

Trouble Ahead?

Some possible troubles may lay ahead. The new law calls for establishing a future Legislative Council Study Committee on wetlands. Some of the “unresolved issues” (from the developers’ perspectives) for that committee are summarized by Rep. Neal Kedzie (Republican of Elkhorn, Assembly District 43) in a May 4 opinion piece he authored, “Wetlands Regulation Debate.” These issues include, in his words:

treatment of artificial or man-made wetlands,
multiple definitions of wetlands,
classifying and evaluating the functional value of wetlands,
the process by which applications and permits are approved or denied,
the burdensome regulations placed on agriculture and aquaculture industries,
the creation of tax credits,
development zones and incentives for wetlands restoration,
the need for more involvement by local officials and planners, and a whole host of others.
It is unlikely that this special study committee will be empowered this year.