On February 29, 2012, Gov. Walker signed into law legislation aimed at modifying Wisconsin’s wetland regulations. (2011 Wisconsin Act 118.) While critics have claimed that the new law takes away the DNR’s authority to regulate activities impacting wetlands, Act 118 actually gives the DNR more flexibility to consider mitigation and to look holistically at the environmental impacts of projects that could impact wetlands. Moreover, the new law will make Wisconsin’s general permitting standards more consistent with federal regulations and will likely result in a net increase in overall wetlands in the state. 

Mitigation

One of the most significant changes in the new law is the greater acceptance and use of mitigation. Mitigation allows new wetlands to be restored, enhanced or created, either on site or off site, to compensate for the filling in of other wetlands. Under Act 118, the three following changes were made to the mitigation requirements:

1. Mitigation can be used for all wetlands. Under prior law, mitigation could not be considered if the project was in an area designated as an area of special natural resource interest (ASNRI). This is a broad list that encompasses a significant number of wetlands. For example, one of the 12 categories of ANSRI is cold water streams, including trout streams, which constitute 20 to 25 percent of the streams in the state. Under Act 118, mitigation can be considered for all wetlands. 
2. Mitigation can be considered at the beginning of the permitting process. Under prior law, mitigation could not be considered until the end of the permitting process. Before mitigation could be considered, a permit applicant would first have to demonstrate that the wetland could not be avoided and that as impact was minimized to the greatest extent possible. As a result, the DNR never had the opportunity to look at mitigation for most projects. Under Act 118, mitigation can be considered during the early stages of the permitting process along with other factors in determining whether to issue a permit. 
3. Mitigation must be used for all individual permits. Under prior law, mitigation was rarely used or authorized under the permitting process. Under Act 118, wetland mitigation is required for all individual permits at a minimum ratio of 1.2 acres of newly created wetlands for every 1 acre of wetland filled, which will result in a net gain of wetlands in the state. The DNR is directed to develop mitigation ratios for different activities that meet or exceed the minimum 1.2 ratio.

Net Environmental Impact

Another important change to the law is the requirement for the DNR to consider the “net environmental impact” of the proposed project after it is completed, taking into consideration mitigation and other environmental benefits of the project. Under current law, mitigation and other environmental benefits are not factors acknowledged in the review process. As a result, even if the wetland and surrounding environment would be greatly improved due to mitigation and some of the other environmental improvements proposed as part of the project, the project would be denied if it harmed a wetland. 

Under Act 118, the DNR may now consider the impact on functional values resulting from the mitigation and the net positive or negative environmental impact of the proposed project. This allows the DNR to consider the overall environmental impacts of the project to the watershed, but continues to give the DNR the discretion to deny the proposed project if the DNR determines that the project will not result in a net environmental benefit.

Practicable Alternatives

The new law also creates a new definition for the term “practicable alternative,” which was often the litmus test used to determine whether a project would be eligible for a permit. Under prior law, the DNR could not authorize a wetland project if there was a “practicable alternative,” which was defined so broadly that if the project could be built somewhere else — even on different property not owned by the permit applicant — then the permit would be denied. 

Under Act 118, the term “practicable” is now statutorily defined to mean “reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project.” In addition, review of the scope of practicable alternatives can be further limited to the project site or adjacent site if the applicant can demonstrate that the project will (1) “result in a demonstrable public economic benefit,” (2) is necessary for the “expansion of an existing industrial or commercial facility,” or (3) is in an industrial park in existence at the time of the application. 

As a result of the changes, the definition and applicability of the practicable alternatives standard will be limited to alternative site locations where the project could be reasonably located without making significant changes to the purpose or the scope of the project.

Wetland General Permits

Act 118 also makes a few significant changes to the wetland general permitting process in order to make Wisconsin law more consistent with federal law. Under current federal law, a streamlined permit process allows for minor activities that are deemed to have minimal impact on wetlands; for example, a general permit for adding another garage stall onto a home. State law did not have this same type of shoreland permit process for minor activities.
Under the new law, certain activities where 10,000 square feet or less (0.2 acres) of wetlands will be disturbed are eligible for a general permit. While these activities will be eligible for general permits, the DNR continues to have the authority to establish requirements, conditions and exceptions for the general permits to ensure that the discharges will cause only minimal adverse environmental effects. 

Timelines for New Permits

The DNR is in the process of developing the new permits and guidance documents to help implement the new law changes. The individual permit documents will likely be completed by July 1, 2012, while the target completion date general permit documents is August 1, 2012.

For additional information on the new changes to Wisconsin’s wetlands laws, please contact Tom Larson (tlarson@wra.org) at (608) 240-8254. 

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