By: Ted A. Warpinski
As many landowners, developers and builders know, having to obtain a permit to dredge or fill wetlands can cause substantial delays and increased costs. Some relief is now in sight with the recently enacted Wisconsin Act 183, which became fully effective on July 1, 2018. If the exemptions apply, all that is required is a 15-day advance notice to the Wisconsin DNR.
The DNR currently has two guidance documents out for public comment, one addressing the what it referred to as the “artificial” wetland exemption and the other addressing what it refers to as the “non-federal” wetland exemptions. Federal wetlands remain under the jurisdiction of the United States Army Corps of Engineers (the “Corps”) and will continue to require both state and federal permits.
The non-federal wetland exemption.
The non-federal exemption is intended to roll back previous state legislation that gave the DNR jurisdiction over all wetlands in the state after federal court decision limited the Corps’ jurisdiction to only those wetlands that have a significant nexus to navigable waters. As such, the non-federal exemption may appear to be the most beneficial. However, the DNR’s proposed guidance is requiring a jurisdictional determination from the Corps concluding that the wetlands to be filled are non-federal before an exemption will be granted. Since such determination can take months to secure, the non-federal exemption may be of little use on time-sensitive projects. The requirement to obtain a jurisdictional determination from the Corps is not actually found in the statute, so it is possible the DNR may clarify this requirement as a result of comments submitted on the proposed guidance.
In addition to a jurisdictional determination, to qualify for the non-federal exemption the area to be disturbed must not contain “rare or high-quality wetlands.” The burden will be on the party seeking the exemption to show that the wetland is not rare or of high quality and this is something that should be discussed with a qualified wetland delineator early in the process.
Also, there are size limitations to the exemption depending on whether the wetland is located in an urban or rural area. The new law defines “urban area” as any area that is incorporated or within half a mile of an incorporated area or in an area served by a sewerage system. Assuming the project is in an urban area, up to one acre of temporary and permanent wetlands impacts may be allowed and there is no limit on the type of project. In contrast, if the wetland is in a rural area, up to three acres may be affected, but only projects that involve a structure with an agricultural purpose qualify. Commercial or residential projects are not eligible.
Also, depending on the size of the impacts, some mitigation can still be required even though the permit exemption applies. Mitigation will be required for urban projects that exceed 10,000 sq. ft. of wetlands and for rural projects that affect more than 1.5 acres of wetlands. For example, a non-federal urban wetland of 35,000 sq. ft. would require that 25,000 sq. ft. of wetland impacts be mitigated.
The artificial wetland exemption.
The new law defines an “artificial wetland” as a landscape feature where hydrophytic vegetation may be present as a result of human modification to the landscape or hydrology and for which the DNR has no definitive evidence showing a prior wetland or stream history that existed prior to August 1, 1991.
An example of an artificial wetland might be a depression created by the use of heavy equipment or a road side ditch. While the area may presently contain some wetland vegetation, if the historical use shows that it was farm land or woods, the exemption may apply.
With this definition, an analysis of the wetland history of the site will be critical. The draft DNR guidance requires an applicant for the exemption to provide an original land survey along with other soil, topographic and aerial images. If the information does not support a definitive wetland history, the exemption will apply.
While there are still steps to take to utilize either the non-federal or artificial wetland exemption, the exemptions should allow many projects to move forward without getting bogged down in the permitting process and result in lower development costs. While there may be concerns regarding the environmental impact of allowing the exemptions, the DNR’s retention of jurisdiction over high quality wetlands as well as the continued jurisdiction of the Corps over federal wetlands still provide some level of protection.
Ted A. Warpinski is an attorney with the law firm of Davis |Kuelthau, and is a member of the firms’ environmental law team. Mr. Warpinski can be reached at firstname.lastname@example.org or 920.431.2236.
This article was published in the August 2018 edition of The Business News.