Wisconsin REALTOR® 
February 2002
Volume 18, Number 5

	Land Use Forum
Seminars Offered on New Wetland Mitigation Rules Congress Passes Brownfields Legislation DNR Proposes New Stormwater Runoff Standard Changes In State Law Affect Unrecorded Certified Survey Maps

Archive Land Use Articles

  Seminars Offered on New Wetland Mitigation Rules

by Tom Larson

The WRA, in conjunction with the Wisconsin Department of Natural Resources and local REALTOR® and builder associations, will be hosting three regional seminars on the new wetland mitigation program that will go into effect on Feb. 1, 2002.

The seminars will be held in three locations throughout the state during the month of March. Each seminar will include speakers from the DNR and will provide attendees with a general overview of the program and a discussion of how the program will be implemented at the local level, followed by a Q & A session.

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  Congress Passes Brownfields Legislation

Congress recently passed one of the most important environmental bills of the year-a five-year venture giving states up to $200 million a year to clean up more than 500,000 polluted industrial sites.

The legislation combines two measures previously considered by Congress: a Senate bill authorizing money for the cleanups and tightening some regulations governing them, and a House bill exempting small businesses from liability under the Superfund law if they didn't contribute a significant amount of waste. It also would create a public record of brownfields.

Many of the bill's provisions are intended to exempt innocent developers from having to pay decontamination costs if toxic waste is found on a site after it is purchased. But federal Superfund law still would apply, putting responsibility on those who caused the spill or leakage. Generally speaking, the bill attempts to make a common-sense distinction between large-scale polluters and smaller developers who don't deserve to be penalized. The bill also contains a brownfields-to-parks funding provision intended to encourage communities to reclaim land for public use.

Finally, the bill adds a small business liability exemption to the nation's Superfund law, which helps fund cleanup of abandoned sites contaminated with hazardous wastes, particularly where the original polluters cannot be found or have gone bankrupt. Under the bill, businesses would be shielded from the cost of a Superfund site clean-up if they did not contribute a significant amount of non-hazardous waste to the site, and did not add any hazardous wastes. 

Some of the key provisions of the bill include the following:

Brownfield Revitalization Funding

• Provides $200 million per year (through 2006) for grants to states, local governments, and tribes, as well as entities such as quasi-public redevelopment agencies and authorities;
• Allows funding to be used for (1) site assessment grants (typically up to $200,000, with EPA discretion to bump this to $350,000 under some circumstances); and (2) grants for cleanup (both for direct remediation grants up to $200,000 to governments or non-profit groups, as well as for capital grants for redevelopment loan funds up to $1 million);
• Allows $50 million (or 25 percent of the appropriated funds if less than $200 million) for use at sites with petroleum contamination; 
• Allows funding to be used for insurance premiums.

Liability Clarifications 

• Provides Superfund liability relief to:
  a) Contiguous property owners who provide cooperation and access for the cleanup;
  b) Prospective purchasers who are not responsible for contamination at the site and who do not impede its cleanup (bill includes windfall lien provisions for sites where the government pays for cleanup, thus enhancing the fair market value of the property); 
  c) Innocent landowners.

State Response Programs

• Authorizes $50 million per year (through 2006) for grants to states and tribes to establish and enhance state voluntary cleanup and response programs;
• Requires that states maintain a "public record of sites" addressed through their programs and update it annually;
• Provides for deferral of listing sites on National Priorities List if a state is taking action;
• Establishes finality for sites addressed through state programs, protecting them from EPA enforcement and cost recovery actions under CERCLA except in the case of re-openers - specifically defined situations in which EPA can come back with an enforcement action - including: 
  a) migration of contamination across state lines or onto federal property, if releases or threats of release present an imminent and substantial endangerment;
  b) new information shows that a cleanup no longer is protective;
  c) a state requests intervention;
• Requires EPA to consult with the state on re-opener situations; and
• Allows citizens to request that a state conduct an assessment at a specific site, and requires the state to "appropriately" respond.

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  DNR Proposes New Stormwater Runoff Standard

The DNR is proposing new stormwater runoff standards that may have a significant impact on commercial development in Wisconsin. The proposed runoff standards are part of a new administrative rule, NR 151, which has been under development for the past four years. Although most of the debate in the legislature during this time has focused on the rule's impact on agriculture, the rule has much broader impacts. 

Under the proposed rule, a stormwater management plan that meets a number of technical standards must be developed whenever one acre or more of land is disturbed. While much of the rule is practical, logical, and will help protect the environment, some sections may be problematic for owners and developers of commercial or industrial property, especially as it relates to expansion of those properties.

The problem areas of the preliminary draft include:

• A mandated 50-foot "protection area" around all wetlands (no matter how small or degraded) which could create very significant siting problems for business expansions.
• A requirement that a portion of stormwater be "infiltrated" (allowed to soak into the ground) on-site, instead of being handled in the municipal stormwater system. Since road salt is not filtered by soil, this may lead to violations of the groundwater law, for which developers may be held liable.
• The rule does not allow the use of the most common, and up-to-date development modeling systems, which will create significant financial consequences.

The WRA will continue to work with the DNR and other groups to address these concerns. Please look to the Wisconsin REALTOR® for future updates on this issue.

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  Changes In State Law Affect Unrecorded Certified Survey Maps

As part of the state's 2001-03 biennial budget, a number of process changes were made to the certified survey map ("CSM") regulations to make them consistent with the subdivision regulations. Most of the changes are technical in nature and relate to how the surveys must be performed, but others impact the CSM approval and recording process. 

Under the new changes, communities must "act" (approve, conditionally approve, or reject) on a CSM within 90 days after it has been submitted. If the community fails to act within 90 days, the CSM is deemed approved. This new presumptive approval requirement for CSMs is similar to the requirements for subdivisions.

In addition, the time limit for recording CSMs was changed to be consistent with the time limits for recording subdivision plats. Under the changes, CSMs must be recorded within 6 months from the last approval and 24 months of the first approval. If the CSMs or subdivision plats are not recorded within this time, they are no longer valid and the land divider must go back through the approval process.

For additional information on these new changes, please contact Renee Powers with the Wisconsin Department of Administration's Plat Review Department at (608) 266-3200 or visit their website.

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