Wisconsin Legislature Passes Comprehensive Wetland Regulation Reform


 Tom Larson  |    March 08, 2018
Wetland.jpg

On February 20, 2018, the Wisconsin Legislature passed Assembly Bill 547 (AB 547), which will reform Wisconsin’s nonfederal wetland regulations in a meaningful and responsible manner. The legislation, authored by Rep. Jim Steineke (R-Kaukauna) and Sen. Roger Roth (R-Appleton), initially met strong opposition from the environmental community and hunting and fishing groups. However, the bill authors along with Sen. Rob Cowles (R-Green Bay) and Rep. Rob Stafsholt (R-New Richmond) worked diligently to find a workable compromise that ultimately caused several key conservation groups to remove their opposition. Gov. Walker is expected to sign this legislation into law within the weeks ahead.

Background

Wetlands play a critical role in our environment, serving as waterfowl habitat, providing flood control, and filtering stormwater runoff before entering our groundwater. Regulations are necessary to protect these important natural resources. 

Wisconsin’s wetland regulations, however, go too far. Under current law, all wetlands are treated the same regardless of their functional values, whether they are natural or artificial, or their impact on economic development. Moreover, the regulations contain subjective determinations like “practicable alternatives” and “area of special natural resource interest” that have been interpreted so broadly that they can be used to stop most projects from moving forward. Finally, Wisconsin’s wetland mitigation program is inflexible and has been slow to be developed, with a shortage of mitigation banks and credits, limited on-site mitigation options, and a fee-in-lieu program that has yet to be fully implemented. 

Wetland regulations have been identified to be among the top barriers to economic development in Wisconsin. As our state tries to compete both nationally and globally for economic development opportunities, we need to revamp our wetland regulations to focus on preserving high-quality wetlands as well as providing more flexibility for mitigating disturbances to lower-quality wetlands to accommodate new economic development opportunities. 

Why wetland regulations needed to be changed

Wisconsin’s wetland regulations needed to be significantly modified for the following reasons:

  • Wisconsin is one of only a few states to regulate nonfederal wetlands: After the U.S. Supreme Court declared that the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) did not have authority to regulate isolated/nonfederal wetlands in 2001, Wisconsin was the first state to regulate such wetlands. Only Ohio and Indiana have adopted similar comprehensive isolated wetland regulations. No other states place similar restrictions on economic development.
  • All wetlands are not created the same: Wisconsin’s wetland regulations do not differentiate between different types of wetlands. Whether they are damp spots in the middle of a farm field, puddles formed in the depressions left by heavy construction equipment, or pristine wetlands that serve as valuable waterfowl habitat, Wisconsin’s wetland regulations treat all of these bodies of water the same and provide limited options for disturbing any wetlands even if they are in the direct path of economic development. 
  • Mitigation program lacks flexibility: Currently, Wisconsin’s wetland regulations lack the flexibility to allow property owners to decide the most appropriate and feasible form of mitigation — on-site vs. off-site — to use for their project. 
  • Regulatory overlap between federal and state regulations creates confusion and unnecessary delays: Both the USACE and the Wisconsin Department of Natural Resources (DNR) regulate wetlands in Wisconsin, which often results in confusion and delays in determining who has jurisdiction, wetland boundaries and permit decisions. This results in a lack of accountability when such problems arise.

Key provisions in AB 547

To remove regulatory barriers to economic development and protect our most valuable wetlands, AB 547 contains the following provisions.

  • Extend the life of wetland delineations from five to 15 years: Currently, wetland delineations, which are site maps identifying the specific type and location of wetlands, have an expiration date after five years. For larger, multiphase projects or projects that may pause due to economic conditions, a five-year expiration date is an insufficient amount of time and often results in temporary or artificial wetlands popping up on the property during the development process. Extending the life of delineations to 15 years will help add greater certainty to the development process and prevent water-filled depressions created by grading and construction activities and other man-made activities from being treated as “wetlands.” 
  • Create greater flexibility for wetland disturbances in urban growth areas: Allowing small disturbances, up to 1 acre, to lower-quality wetlands in urban areas lets development occur in a more compact and contiguous manner, using less land with lower infrastructure costs. The new law also requires mitigation on any such disturbance in an urban area greater than a quarter acre to perform mitigation — i.e., to create new wetlands — at a ratio of 1.2:1. This ratio allows for every acre of wetland filled, 1.2 acres of new wetlands must be created.
  • Protect rare and high-quality wetlands: Protects 11 types of Wisconsin’s most rare and sensitive wetlands by prohibiting any permit exemptions to apply to these wetlands. 
  • Provide more flexibility for selecting mitigation options: Under the bill, property owners will have more flexibility in choosing between on-site and off-site mitigation, so long as any off-site mitigation occurs within the same compensation search area. 
  • Eliminate federal and state regulatory overlap: Authorizes the DNR to request jurisdiction from the EPA and USACE over the federal 404 program, which regulates federal wetlands. This will make the DNR responsible for overseeing all regulations relating to both federal and nonfederal wetlands, which would hopefully result in more timely and consistent decision making. 
  • Allow modifications, enhancements and maintenance to artificial or manmade wetlands without a permit: Currently, these artificial wetlands, often found in retention ponds, are subject to onerous DNR permitting requirements that prevent expansions or routine maintenance activities such as the removal of muck and debris without a permit. Creating a permit exemption for disturbances to artificial wetlands will resolve many of the frustrations associated with Wisconsin’s wetland regulations. 

These changes will help promote economic development, while still maintaining one of the strongest regulatory frameworks for nonfederal wetlands in the country.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.

Copyright 1998 - 2019 Wisconsin REALTORS® Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education