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The Wisconsin Legislature is currently considering changes to various state regulations that negatively impact economic development. One such regulation is the wetland mitigation program, which critics claim is underutilized and in need of modifications.

Background

Most people think of wetlands as areas such as marshes or bogs with easily identifiable characteristics like standing water and certain aquatic vegetation such as reed canary grass or cattails. However, Wisconsin’s definition of “wetland” is much broader and includes “areas where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic (water-loving) vegetation and which has soils indicative of wet conditions.” In other words, a wetland can include small depressions on land with no standing water, or areas that have certain soil types but no other physical characteristics that would identify the land as a wetland to the average person.

Because wetlands are often not easily identifiable, many property owners are unaware of wetlands on their property until after they purchase the property and attempt to build on or develop it. Wetlands are often located in the exact location that the property owner wants to build something or in the only place the property can be developed. Property owners who discover a wetland on their property generally must avoid any activity that could harm the wetland or apply for a permit from the Department of Natural Resources, which is often difficult to obtain.

To address situations in which damaging a wetland is difficult or impossible to avoid, Wisconsin developed a wetland mitigation program to allow new wetlands to be restored, enhanced or created to compensate for the filling in of other wetlands. To meet wetland mitigation requirements, property owners may choose to perform a mitigation activity themselves or purchase a “credit” from a wetland mitigation bank. If a “credit” is purchased, the mitigation activity will be performed by another party at a designated wetland area.

Problems with Wisconsin’s Wetland Mitigation Program

While wetland mitigation sounds like an effective solution that allows for both property development and environmental protection, Wisconsin’s program has not been widely utilized. Critics claim that mitigation is not an option for most property owners because the program consists of several fundamental flaws in the way that it was created, such as:

• Mitigation is allowed only as a last resort. Under Wisconsin’s wetland regulatory framework, a property owner who intends to build on or fill a portion of a wetland can utilize mitigation only if the property owner can first demonstrate that (a) damage to the wetland cannot be avoided, and (b) that every effort had been made to minimize the project’s impact on the wetland. In other words, a property owner cannot use mitigation unless the property owner can show that there are no other “practicable alternatives” that would avoid or minimize to a lesser degree the impact on the wetland. Many other states (e.g., Iowa) allow property owners to more quickly jump to the mitigation process.
• The scope of the “practicable alternatives” analysis is too broad. As indicated above, property owners must be able to demonstrate that there is no other “practicable alternative” prior to being able to qualify for mitigation. When determining whether a practicable alternative exists, the DNR currently can consider whether the proposed project needs to be built (i.e., doing nothing can be a “practicable alternative”) or whether the proposed project could be built on some other property in another location (even if the property is not owned by the same property owner).
• The net environmental impact of a project is not considered. Under current practice, filling a wetland by definition results in a “significant adverse impact” and therefore the DNR can (and often does) deny a permit without considering the impact on the wetland or the entire wetland “complex” after the mitigation is performed. In many cases, wetland mitigation can enhance a wetland by improving the functional qualities (e.g., water retention, wildlife habitat) or restoring previous damage. Therefore, because the DNR fails to consider the net environmental impact (both positive and negative) of a project after mitigation is performed, property owners are generally unable to utilize wetland mitigation.
• Inadequate differentiation between size and quality of wetlands. The current wetlands permitting process does not adequately differentiate between wetlands based upon size, function or man-made vs. natural qualities. Therefore, a permit for an activity that would impact a small, low-quality wetland is treated the same as a permit for an activity that would impact a larger, high-quality wetland.

Looking for Solutions

The Wisconsin REALTORS^® Association is meeting with DNR officials, legislators, environmental groups and other interested parties to find ways to improve Wisconsin’s wetland mitigation program. Our goal is to identify solutions that will make wetland mitigation a more effective tool for property owners without compromising the important role that wetlands play in our environment.

For more information about wetland mitigation, please contact Tom Larson (tlarson@wra.org) at 608-212-0066.

Tom Larson is Chief Lobbyist and Director of Legal and Public Affairs for the WRA.