SB 798

This bill directs the Department of Natural Resources to establish a wetland assured delineation program.

Current law generally prohibits the discharge of dredged or fill material into a wetland unless a person is issued a wetland general permit or individual permit by DNR. Under current law, a person who owns or leases land may use the following methods to delineate the boundaries of a wetland in a manner recognized by DNR: 1) the person may request that DNR provide a wetland identification to determine if wetlands are located on a parcel, or part of a parcel, that does not exceed five acres; 2) the person may have a third person prepare a wetland delineation and request that DNR confirm the boundaries of the wetland as delineated by that third person, based on DNR’s on-site inspection of the land; or 3) with respect to nonfederal wetlands, the person may have a qualified third person perform a wetland identification delineating the boundaries of a wetland and request DNR to confirm those boundaries, not based upon an on-site inspection of the land but rather based on a review of maps, aerial photographs, surveys, wetland delineations, and hydrophytic soil conditions. Under current law, nonfederal wetlands are wetlands that are not under the jurisdiction of the federal government, and a qualified third person is an individual who has completed basic and advanced wetland training and has a minimum of one year of field experience in wetland delineation.

The bill adds a wetland assured delineation program as a fourth method for delineating the boundaries of a wetland in a manner recognized by DNR. Under the program, a person may apply to DNR to be certified as an assured delineator. A wetland delineation prepared by an assured delineator has the same effect as a wetland identification or confirmation prepared by DNR, and a wetland delineation prepared by an assured delineator need not be confirmed by DNR. Under the bill, DNR must charge a $900 annual certification fee to an assured delineator, must require a report of each wetland delineation an assured delineator prepares, and may charge a filing fee not to exceed $20 for each report submitted.

The bill provides that a wetland delineation prepared by an assured delineator is effective for five years from the date upon which the wetland delineation report is submitted to DNR. This matches the general effective period for wetland identifications and confirmations of wetlands provided by DNR under current law. In an exception under current law, a wetland identification or confirmation provided by DNR is effective for 15 years from the date provided by DNR if the wetland is a nonfederal wetland and the parcel of land is subject to a storm water management zoning ordinance or a storm water discharge permit. The bill adds to this exception a wetland delineation by an assured delineator that meets these conditions, and changes this exception to be effective for 15 years from the date the U.S. army corps of engineers makes a determination regarding whether the wetland is subject to federal jurisdiction on the basis of the wetland identification, confirmation, or delineation.

The bill requires DNR to establish application and qualification requirements for assured delineator certification but includes some minimum requirements, such as certain educational degrees, specific amounts of full-time professional field experience in wetland delineation based on educational degree, and completion of a wetland delineation training course based on the U.S. Army Corps of Engineers wetland delineation manual. The bill also requires DNR to charge an application processing fee of $500. The bill provides that an applicant whose application is not approved may reapply and requires DNR to accept applications no less than annually and at least during the period beginning September 15 and ending November 30 for applicants who wish to be certified beginning on March 15 of the next calendar year.

The bill requires DNR to review the performance of assured delineators on a recurring basis and authorizes DNR to perform in-field audits of specific wetland delineations submitted by assured delineators in the 12 months preceding the beginning of the audit. The bill allows DNR to investigate any person’s complaint that an assured delineator may have failed to accurately identify wetlands on a property for which a report was submitted in the 12 months preceding the date of the complaint. If the data gathered in the investigation show substantial evidence that a wetland delineation was conducted in a manner not supported by the wetland delineation manual published by the U.S. Army Corps of Engineers, the bill requires DNR to so notify the assured delineator and require the assured delineator to correct the report. The bill provides that any deadline for DNR action with respect to a wetland general or individual permit is tolled on the date of that notification until the assured delineator submits a corrected report.

The bill prohibits DNR from using data gathered in the investigation to modify a wetland permit or exemption decision solely on the basis of that data. The bill allows DNR to use data gathered in the investigation to evaluate an assured delineator’s compliance with assured delineation program requirements.

The bill allows DNR to revoke a person’s certification as an assured delineator if it finds the person did any of a list of actions, for example knowingly falsifying or misrepresenting a wetland boundary. Under the bill, a person whose assured delineator certification has been revoked is entitled to a contested case hearing.

Under the bill, DNR must consider a person who is approved or certified as an assured delineator under an existing pilot program as certified as an assured delineator under the program created in the bill.