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Wisconsin REALTOR®
May 2000
Volume 16, Number 3
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New Law Authorizes Use of Wetland Mitigation
By Tom Larson
Wetlands, like other natural resources, are vital to Wisconsin’s
landscape. An incredibly complex and important ecosystem, wetlands are
home to a wide variety of species from microorganisms to plants, fish,
amphibians, birds and many other forms of wildlife. In addition to
providing an animal habitat, wetlands help prevent erosion and act as
filters by removing pollutants from the water and by aiding in nutrient
absorption.
Unfortunately, Wisconsin has lost a sizable quantity of its wetland
habitat over the years. As Wisconsin’s economy and population have
grown, so too has the demand for developable land. Because the demand
for new housing, businesses, and industry has exceeded the supply of
developable land in most parts of the state, communities have had to
utilize land with low quality wetlands in order to accommodate growth in
an efficient and cost-effective manner.
One of the primary causes of this loss of wetlands can be
attributable to the fact that Wisconsin is one of the only states in the
country that does not allow wetland mitigation. “Wetland mitigation”
is essentially the creation or enhancement of wetlands to compensate for
the disruption or degradation of other wetlands. In other words, if a
wetland is damaged or disturbed, wetland mitigation provides for either
the creation of a new or the expansion of an existing wetland in
generally the same proportion as the wetland that was damaged. In other
states, wetland mitigation has been very successful, providing
communities with a means to accommodate growth, while at the same time
giving them the ability to preserve and, in many cases, enhance its
wetland resources.
Wisconsin’s New Wetland Mitigation Law
In an effort to better preserve and enhance Wisconsin’s wetland
habitats without compromising the need to accommodate growth, the
Wisconsin REALTORS® Association, the Wisconsin Builders Association,
the Wisconsin Department of Natural Resources (“DNR”), and other
environmental groups worked together to develop Wisconsin’s new
wetland mitigation law. As a testament to its sound public policy and
the balanced nature of the interest groups involved, this new law
received an overwhelming amount of bi-partisan support in the
legislature, passing both the Assembly and Senate by unanimous vote.
The new wetland mitigation law contains the following provisions:
- Authorizes, but does not require, the DNR to consider wetland
mitigation under certain circumstances. In determining whether
to grant a permit or approval for an activity that will have an
adverse impact on a wetland, the DNR is authorized to consider
wetland mitigation, but only if:
- the permit applicant can demonstrate that every attempt will
be made to avoid and minimize adverse impacts on the wetland;
and
- the activity will not adversely affect an area of, or wetland
located in a, "special natural resource interest."
Furthermore, Wisconsin’s new wetland mitigation law authorizes the
DNR to impose additional conditions upon the permit application if it
determines that the permit does not meet the requirements established in
the memorandum of understanding between the DNR and the U.S. Army Corps
of Engineers.
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Authorizes the creation of wetland banks. The new law
authorizes the transfer of credits as part of a wetland mitigation
bank to provide for a structured management system of wetland
conservation. Unlike other forms of mitigation, wetland banking
allows landowners to purchase credits from a “bank” that will
create or restore the wetlands for him on another site, rather than
actually creating or restoring the wetland personally. By purchasing
the credits, the landowner also avoids the responsibilities of
maintaining and managing the wetlands that are required under
federal law. From an environmental perspective, wetland banking
increases the chances of providing a valuable habitat by preserving
or enhancing large contiguous areas.
-
Requires the granting of a conservation easement to the DNR.
To ensure that wetlands are being restored or created and will not
be destroyed or substantially altered by subsequent owners of the
wetland, the new law requires any person who receives a permit that
authorizes a mitigation project to grant a conservation easement to
the DNR.
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Requires the DNR to promulgate rules to regulate mitigation
projects. These rules must include an expedited decision-making
process that requires the DNR to act upon a permit application
within sixty working days after an application is complete, unless
weather conditions prevent the DNR from doing so.
By authorizing the DNR to utilize wetland mitigation and banking, the
new wetland mitigation law will provide Wisconsin, as it has other
states, with the tools necessary to both conserve our natural resources
and accommodate growth in an efficient and cost-effective manner.
If you have any questions or comments regarding Wisconsin’s new
wetland mitigation law, please contact Tom
Larson or call
(608) 241-2047.
For general information land-use issues, please visit our Web
site’s Land Use section.
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Comm 83 Set to Go Into Effect July 1, 2000 - Maybe
By Tom Larson
After approximately nine
years of drafting, re-drafting, public hearings, amendments, lawsuits,
negotiations, amendments, and approval by the Legislature, the new rules
regulating private septic systems will go into effect on July 1, 2000
– unless, of course, there is another lawsuit.
The proposed code makes
available five new septic system designs that treat wastewater more
effectively that current conventional systems. Unlike conventional
systems which rely upon the soil to treat wastewater, the new systems
contain filtering devices that remove organic material and bacteria from
wastewater before it is released into the ground. Because of the
effectiveness of these filtering devices, the new systems require only a
minimum of 6 inches of in situ soil (native soil; soil that has not been
brought in), rather than the 24 inches of in situ soil required by
conventional systems.
In addition to the new
systems that will be made available, the proposed rule contains the
following important provisions:
- Allows counties to
delay usage of new system designs for new development until January
1, 2003.
Counties, however, cannot delay the use of these designs for
replacement systems.
- Deletes the state
requirement for property owners to hook-up to public sewer and/or
water if it becomes available.
Communities, however, may still require hook-up as part of their
zoning code.
- Improves inspection
and maintenance requirements.
The proposed code requires property owners to maintain a maintenance
or service contract with a professional maintenance provider meeting
the state maintenance requirements. In addition, property owners
must provide a copy of the maintenance report to the department of
commerce or county, if applicable, within 10 business days from the
date of the inspection, maintenance, or servicing.
- Authorizes
municipalities to prohibit the use of the following systems:
holding tanks, constructed wetlands, and evapotranspiration beds.
Although these new systems
have been approved by the United States Environmental Protection Agency
(EPA) and the Wisconsin Department of Natural Resources (DNR) and have
been used for years in states like Minnesota and Michigan, a number of
interest groups have vehemently opposed the rule and will likely file a
lawsuit seeking to block its implementation. These groups include the
League of Wisconsin Municipalities, the Wisconsin Alliance of Cities,
and most of the environmental-interest groups.
Based upon public testimony
and various comments made through the media, a lawsuit could consist of
the following arguments (Note – Because a lawsuit has yet to be filed
and no formal outline of legal arguments has been made available, this
list represents an educated guess and should not be relied upon as the
basis for any lawsuit):
- Insufficient
Environmental Impact Statement (EIS) – The groups have maintained
that the EIS performed by the department of commerce and DNR was
insufficient because it did not adequately consider the impacts of
possible alternatives to the proposed rule.
- Department of Commerce
did not have the authority to establish certain provisions in the
rule. This argument has yet to be fully outlined, but it seems that
the opponents believe that the department exceeded its authority by
developing certain provisions in the rule that either violate other
state or federal laws or are reserved for another branch of
government. Again, the exact nature of their argument is unknown at
this time.
- New systems do not meet
state groundwater standards. Opponents have argued that the new
systems do not meet state groundwater standards because they release
wastewater that exceeds the amount of nitrates allowable.
Recognizing that no private septic systems throughout the country
meet the nitrate standards for drinking water, our state groundwater
law, which adopted federal drinking water standards and thus is
among the strictest in the country, exempts private septic systems
from the nitrate requirements. Although state groundwater laws are
not required to meet federal drinking water standards, it seems
opponents are arguing (paradoxically) that the nitrate exemption is
invalid.
If a lawsuit is filed, the
rule will be defended by the state, utilizing all of the financial,
legal, and scientific resources available through the department of
commerce, DNR, and attorney general’s office. In addition, the WRA,
the Wisconsin Builders Association, the Wisconsin Farm Bureau, and other
interest groups have agreed to commit significant financial and legal
resources to the defense of the rule.
For more information on Comm
83, please contact Tom Larson or
call (608) 241-2047, or visit our Web
site for details.
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