Permitting and mitigation requirements for nonfederal and artificial wetlands and state assumption of the federal regulatory program governing the discharge of dredged or fill material into navigable waters. (FE)

In this state, DNR grants this certification by issuing a state wetland permit. Under current law, DNR must issue wetland general permits for discharges of dredged or fill material into certain wetlands and may require a person to apply for and obtain a wetland individual permit if DNR determines that conditions specific to the site require additional restrictions on the discharge in order to provide reasonable assurance that no significant adverse impacts to wetland functional values will occur.

The bill exempts wetlands that are not subject to federal jurisdiction (nonfederal wetlands) from state wetland permitting requirements. Generally speaking, only wetlands that are adjacent to navigable waters are subject to federal jurisdiction. The bill continues to require the mitigation of impacts from a discharge to a nonfederal wetland, which under current law is required before DNR may issue a wetland individual permit.

The bill also excludes artificial wetlands from the definition of a wetland, thereby exempting these wetlands from the permitting and mitigation requirements that apply to the discharge of dredged or fill material into a wetland. Under the bill, an artificial wetland is a nonfederal wetland created by human modifications to the landscape or hydrology and for which DNR has no definitive evidence showing a prior wetland or stream history, but does not include a wetland created under a mitigation requirement. Under current rules promulgated by DNR, only certain artificial wetlands are exempt from the wetland permitting requirements and only if DNR determines that significant functional values are not present.

Under current federal law, a state's governor may apply to the EPA requesting that the state be delegated the authority to administer its own individual and general permit program for the discharge of dredged or fill material into navigable waters, including federal wetlands, in place of the federal regulatory program. This bill authorizes DNR to submit such an application on behalf of and at the direction of the governor and authorizes DNR to assume that authority if the EPA delegates it to the state.

The bill also requires DNR to expend all moneys received prior to the effective date of this bill for the in lieu fee subprogram no later than June 30, 2019, and, effective January 7, 2019, to expend moneys received for the in lieu fee subprogram within 24 months of being credited the moneys. The bill provides that, no later than the third month of each legislative session, DNR is required to provide a report to the governor and the appropriate standing committees of the legislature explaining how the department expended the moneys and, if necessary, why the department failed to expend all of the moneys. Under current law, as part of the mitigation program, DNR may establish an in lieu fee subprogram, under which payments are made to DNR for the purposes of restoring, enhancing, creating, or preserving wetlands or other water resource features.