New Wisconsin Wetland Requirements Can Help Projects Get Off The Ground Faster

February 22, 2018

SEH natural resources scientist Heidi Kennedy explains how new legislation passed by the Wisconsin Legislature is important for developers, builders, manufacturers and Wisconsin communities.

The legislation dials back specific wetland requirements and may allow more projects to proceed without state wetland permits—this can help projects get off the ground faster.

Heidi shares examples of when a state permit is no longer required, what she found when she did a deeper dive into the new legislation, what didn’t change and what’s on the horizon.

When a permit is no longer required

The new legislation creates a new permit exemption process (exemptions begin to take place July 1, 2018) for state wetlands if the impacts of the new development meet certain criteria. Here are three examples.

  1. When you fill one acre or less of an urban wetland. This means developers can move projects forward quickly. There is one catch. If high-quality or rare wetlands are disturbed, a wetland permit may be required. If the developer disturbs more than one acre of wetland a permit will be necessary and the developer must restore wetlands elsewhere, or purchase credits from a wetland bank or pay a DNR wetland restoration fund. Previously, developers would have needed permits for any impacts to wetlands, regardless of the size of the fill, and would have to mitigate for wetlands impacts that exceeded 10,000 square feet.
  2. When building new agricultural structures that fill up three acres of rural wetland. This is good news for the agricultural industry. However, a catch applies. If the new structure disturbs rare or high-quality wetlands, a permit may be required. If the development exceeds the three acres, then the developer will need a permit and will need to restore the wetlands elsewhere, or purchase credits from a wetland bank or pay a DNR wetland restoration fund.
  3. When building on an artificial wetland. In the past, permits were required for artificial wetlands, or wetlands that were created as a result of human activities. Now filling of an artificial wetland may occur without a permit.

The new legislation only applies to state wetlands. If you’re not sure if a wetland is a state wetland or a federal wetland, you’ll need to submit an application to the U.S. Army Corps of Engineers. Applications or requests for jurisdictional determinations need to be submitted to determine if the wetlands are regulated under the Clean Water Act. If they are regulated under the Clean Water Act, it’s a federal wetland and permits will be necessary from the U.S. Army Corps of Engineers and the Wisconsin Department of Natural Resources. A jurisdictional review by the U.S. Army Corps of Engineers could take up to six months.

“In some cases, it may be quicker to apply for the permit than wait for a jurisdictional decision,” says Heidi.  

A more thorough review reveals the win-win

When Heidi dissected the legislation more thoroughly, here’s what she learned:

  1. Wetland Study Council. This Governor-appointed Council will include a broad range of interests to discuss wetland policy, regulations, procedures and issues. This brings the perspectives of many stakeholders together and keeps the balance of economic development and importance of preserving wetlands at a high visibility level.
  2. Grant Opportunities. A portion of stewardship funding will be targeted to supporting the wetland banks—developed as part of the DNR In-Lieu Fee Program. It also directs the DNR to take a closer look at opportunities on DNR land for In-Lieu Fee projects.  
  3. Streamlines Process and Extends the Delineation. A new process for reviewing delineations for non-federal wetlands extends the life of the delineation to 15 years. This is good news for developers and communities and will save time and money on projects that have been delineated by extending the expiration date.

Here’s what didn’t change:

  • The legislation does not change the permit process or mitigation requirements for federal wetlands regulated by the U.S. Army Corps of Engineers. These wetlands will still require permits from the Wisconsin DNR and the U.S. Army Corps of Engineers.
  • Wetland delineation for federal wetlands would remain valid for only five years.

What’s on the horizon?

The legislation grants permission for the Wisconsin DNR to pursue delegation of federal wetland regulations to state wetlands. According to Heidi, this would take many years and require many changes in state statute and federal oversight but could eventually reduce some of the permitting by the U.S. Army Corps of Engineers and consolidate the approval of wetland impacts with the Wisconsin DNR.

Bringing it together

New Wisconsin wetland legislation provides some relief to developers creating more housing and economic development opportunities in the state. It saves them time and money, which can mean less costs passed on to the eventual property owners. Communities also benefit as they want to put vacant land parcels back on tax rolls to generate much-needed revenue. And, the legislation puts in place governance to make sure Wisconsin’s beloved recreational areas remain pristine for wildlife species and generations to follow.

About the Expert

Heidi Kennedy

Heidi Kennedy is a natural resources scientist dedicated to helping clients understand and take advantage of new and changing regulations. Contact Heidi

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