Illinois 2025-2026 Regular Session

Illinois House Bill HB3596 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	104TH GENERAL ASSEMBLY State of Illinois 2025 and 2026 HB3596 Introduced , by Rep. Anna Moeller SYNOPSIS AS INTRODUCED: See Index Creates the Wetlands Protection Act. Provides that no person may discharge dredged or fill material into a State jurisdictional wetland except with a permit issued by the Department of Natural Resources. Exempts certain activities from the requirements of the Act. Sets forth procedures for individual permit applications and other related procedural requirements. Provides that the Department shall not issue an individual permit unless the Environmental Protection Agency certifies to the Department that there will not be a violation of State water quality standards. Provides that the Department may issue an after-the-fact permit in certain emergency circumstances. Sets forth financial assurance requirements. Authorizes the Department to adopt general permits under the Act. Provides that any person who intends to conduct a regulated activity may do so in accordance with a general permit issued by the Department, which pre-authorizes a category of activities with minimal adverse effects. Provides procedures and requirements regarding preconstruction notifications. Provides that certain entities may establish and operate a mitigation bank or in lieu fee program. Describes procedures and requirements for mitigation banks. Grants the Department rulemaking powers. Provides that the Department shall prepare certain reports and studies. Provides for the review of final decisions of the Department. Provides for investigations by the Department and enforcement by a State's Attorney or the Attorney General. Provides for a civil penalty not to exceed $10,000 per day of violation, with interest after judgment, and with certain costs, fees, and expenses, payable to the Wetlands Protection Fund. Provides that any person may file a complaint with the Illinois Pollution Control Board concerning a violation of the Act, a rule adopted under the Act, a condition of a permit issued under the Act, or an order of the Pollution Control Board issued under the Act. Provides for county and special district stormwater program authorities to control or regulate activities in any wetlands within their jurisdiction. Establishes the Wetlands Protection Fund. Provides that a permit review fee for all permit applications is to be set by the Department by rule. Makes corresponding changes to the State Finance Act. Makes findings. Defines terms. Effective immediately. LRB104 09762 BDA 19828 b A BILL FOR 104TH GENERAL ASSEMBLY State of Illinois 2025 and 2026 HB3596 Introduced , by Rep. Anna Moeller SYNOPSIS AS INTRODUCED: See Index See Index Creates the Wetlands Protection Act. Provides that no person may discharge dredged or fill material into a State jurisdictional wetland except with a permit issued by the Department of Natural Resources. Exempts certain activities from the requirements of the Act. Sets forth procedures for individual permit applications and other related procedural requirements. Provides that the Department shall not issue an individual permit unless the Environmental Protection Agency certifies to the Department that there will not be a violation of State water quality standards. Provides that the Department may issue an after-the-fact permit in certain emergency circumstances. Sets forth financial assurance requirements. Authorizes the Department to adopt general permits under the Act. Provides that any person who intends to conduct a regulated activity may do so in accordance with a general permit issued by the Department, which pre-authorizes a category of activities with minimal adverse effects. Provides procedures and requirements regarding preconstruction notifications. Provides that certain entities may establish and operate a mitigation bank or in lieu fee program. Describes procedures and requirements for mitigation banks. Grants the Department rulemaking powers. Provides that the Department shall prepare certain reports and studies. Provides for the review of final decisions of the Department. Provides for investigations by the Department and enforcement by a State's Attorney or the Attorney General. Provides for a civil penalty not to exceed $10,000 per day of violation, with interest after judgment, and with certain costs, fees, and expenses, payable to the Wetlands Protection Fund. Provides that any person may file a complaint with the Illinois Pollution Control Board concerning a violation of the Act, a rule adopted under the Act, a condition of a permit issued under the Act, or an order of the Pollution Control Board issued under the Act. Provides for county and special district stormwater program authorities to control or regulate activities in any wetlands within their jurisdiction. Establishes the Wetlands Protection Fund. Provides that a permit review fee for all permit applications is to be set by the Department by rule. Makes corresponding changes to the State Finance Act. Makes findings. Defines terms. Effective immediately. LRB104 09762 BDA 19828 b LRB104 09762 BDA 19828 b A BILL FOR
2	2	104TH GENERAL ASSEMBLY State of Illinois 2025 and 2026 HB3596 Introduced , by Rep. Anna Moeller SYNOPSIS AS INTRODUCED:
3	3	See Index See Index
4	4	See Index
5	5	Creates the Wetlands Protection Act. Provides that no person may discharge dredged or fill material into a State jurisdictional wetland except with a permit issued by the Department of Natural Resources. Exempts certain activities from the requirements of the Act. Sets forth procedures for individual permit applications and other related procedural requirements. Provides that the Department shall not issue an individual permit unless the Environmental Protection Agency certifies to the Department that there will not be a violation of State water quality standards. Provides that the Department may issue an after-the-fact permit in certain emergency circumstances. Sets forth financial assurance requirements. Authorizes the Department to adopt general permits under the Act. Provides that any person who intends to conduct a regulated activity may do so in accordance with a general permit issued by the Department, which pre-authorizes a category of activities with minimal adverse effects. Provides procedures and requirements regarding preconstruction notifications. Provides that certain entities may establish and operate a mitigation bank or in lieu fee program. Describes procedures and requirements for mitigation banks. Grants the Department rulemaking powers. Provides that the Department shall prepare certain reports and studies. Provides for the review of final decisions of the Department. Provides for investigations by the Department and enforcement by a State's Attorney or the Attorney General. Provides for a civil penalty not to exceed $10,000 per day of violation, with interest after judgment, and with certain costs, fees, and expenses, payable to the Wetlands Protection Fund. Provides that any person may file a complaint with the Illinois Pollution Control Board concerning a violation of the Act, a rule adopted under the Act, a condition of a permit issued under the Act, or an order of the Pollution Control Board issued under the Act. Provides for county and special district stormwater program authorities to control or regulate activities in any wetlands within their jurisdiction. Establishes the Wetlands Protection Fund. Provides that a permit review fee for all permit applications is to be set by the Department by rule. Makes corresponding changes to the State Finance Act. Makes findings. Defines terms. Effective immediately.
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11	11	1 AN ACT concerning safety.
12	12	2 Be it enacted by the People of the State of Illinois,
13	13	3 represented in the General Assembly:
14	14	4 Section 1. Short title. This Act may be cited as the
15	15	5 Wetlands Protection Act.
16	16	6 Section 5. Findings and intent. The General Assembly
17	17	7 finds:
18	18	8 (1) In 1818, Illinois contained an estimated 8.2 million
19	19	9 acres of wetlands. Based on the Illinois portion of the
20	20	10 National Wetlands Inventory, less than 9% of those original
21	21	11 acres of wetlands remain.
22	22	12 (2) As a result of the significant loss in wetland
23	23	13 acreage, there has been a corresponding loss in the functional
24	24	14 values and benefits that wetlands provide.
25	25	15 (3) Illinois is bordered by 880 miles of rivers, which are
26	26	16 critical to navigation, commerce, recreation, and ecosystem
27	27	17 health at home and downstream to the Gulf of Mexico, and the
28	28	18 health of Illinois rivers is heavily influenced by the health
29	29	19 of the tributaries and streams that flow into them.
30	30	20 (4) In Illinois, 9,894 total miles of streams provide
31	31	21 water for surface water intakes, supplying public drinking
32	32	22 water systems that rely at least in part on intermittent,
33	33	23 ephemeral, or headwater streams.
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37	37	104TH GENERAL ASSEMBLY State of Illinois 2025 and 2026 HB3596 Introduced , by Rep. Anna Moeller SYNOPSIS AS INTRODUCED:
38	38	See Index See Index
39	39	See Index
40	40	Creates the Wetlands Protection Act. Provides that no person may discharge dredged or fill material into a State jurisdictional wetland except with a permit issued by the Department of Natural Resources. Exempts certain activities from the requirements of the Act. Sets forth procedures for individual permit applications and other related procedural requirements. Provides that the Department shall not issue an individual permit unless the Environmental Protection Agency certifies to the Department that there will not be a violation of State water quality standards. Provides that the Department may issue an after-the-fact permit in certain emergency circumstances. Sets forth financial assurance requirements. Authorizes the Department to adopt general permits under the Act. Provides that any person who intends to conduct a regulated activity may do so in accordance with a general permit issued by the Department, which pre-authorizes a category of activities with minimal adverse effects. Provides procedures and requirements regarding preconstruction notifications. Provides that certain entities may establish and operate a mitigation bank or in lieu fee program. Describes procedures and requirements for mitigation banks. Grants the Department rulemaking powers. Provides that the Department shall prepare certain reports and studies. Provides for the review of final decisions of the Department. Provides for investigations by the Department and enforcement by a State's Attorney or the Attorney General. Provides for a civil penalty not to exceed $10,000 per day of violation, with interest after judgment, and with certain costs, fees, and expenses, payable to the Wetlands Protection Fund. Provides that any person may file a complaint with the Illinois Pollution Control Board concerning a violation of the Act, a rule adopted under the Act, a condition of a permit issued under the Act, or an order of the Pollution Control Board issued under the Act. Provides for county and special district stormwater program authorities to control or regulate activities in any wetlands within their jurisdiction. Establishes the Wetlands Protection Fund. Provides that a permit review fee for all permit applications is to be set by the Department by rule. Makes corresponding changes to the State Finance Act. Makes findings. Defines terms. Effective immediately.
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68	68	1 (5) Continued loss of Illinois' wetlands and streams may
69	69	2 deprive the People of the State of some or all of the benefits
70	70	3 that they provide, including:
71	71	4 (A) reducing flood damages and protecting vulnerable
72	72	5 communities by absorbing, storing, and conveying peak
73	73	6 flows from storms;
74	74	7 (B) improving water quality by serving as
75	75	8 sedimentation and filtering basins and as natural
76	76	9 biological treatment areas;
77	77	10 (C) providing breeding, nesting, foraging, and
78	78	11 protective habitat for approximately 40% of the State's
79	79	12 threatened and endangered plants and animals, in addition
80	80	13 to other forms of fish, wildlife, game, waterfowl, and
81	81	14 shorebirds;
82	82	15 (D) protecting underground water resources and helping
83	83	16 to recharge rivers, streams, and local or regional
84	84	17 underground water supplies;
85	85	18 (E) serving as recreational areas for hunting,
86	86	19 fishing, boating, hiking, bird watching, photography, and
87	87	20 other uses;
88	88	21 (F) providing open space and aesthetic values,
89	89	22 particularly in rapidly developing areas;
90	90	23 (G) providing unique educational and research
91	91	24 opportunities because of their high diversity of plants
92	92	25 and animals, their support for a high incidence of
93	93	26 threatened and endangered species, and their function as a
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104	104	1 natural buffer for rivers, lakes, and streams;
105	105	2 (H) supplying nutrients in freshwater food cycles and
106	106	3 serving as nursery areas and sanctuaries for young fish;
107	107	4 and
108	108	5 (I) helping to protect shorelines from the forces of
109	109	6 water erosion.
110	110	7 (6) Our changing climate and its more extreme and less
111	111	8 predictable weather patterns heighten the need for some or all
112	112	9 of the benefits that Illinois' wetlands provide, including
113	113	10 flood control, coastal resilience, water quality, aquifer
114	114	11 recharge, habitat, and maintenance of baseflow to recharge
115	115	12 rivers, streams, and local or regional underground water
116	116	13 supplies.
117	117	14 (7) Illinois historically relied on the federal Clean
118	118	15 Water Act's permit program administered by the U.S. Army Corps
119	119	16 of Engineers and the U.S. Environmental Protection Agency to
120	120	17 prevent harm to aquatic resources from unauthorized discharges
121	121	18 of dredge or fill material.
122	122	19 (8) After rejection of the 1989 Wetland Delineation Manual
123	123	20 and in light of uncertainty about federal protections for some
124	124	21 "isolated" wetlands, the General Assembly passed the
125	125	22 Interagency Wetland Policy Act of 1989 to protect these
126	126	23 wetlands from State agency actions and achieve no net loss of
127	127	24 wetlands.
128	128	25 (9) The Supreme Court's May 25, 2023 decision in Sackett
129	129	26 v. EPA rolled back the scope of waters of the United States,
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140	140	1 thereby removing federal Clean Water Act protections for many
141	141	2 waters of the United States, including wetlands that provide
142	142	3 significant flood control protections, such as bottomland
143	143	4 hardwood forested wetlands that are separated from the
144	144	5 Illinois River by levees.
145	145	6 (10) It is important for Illinois to adopt protections
146	146	7 under State law to reinstate protections lost by rolling back
147	147	8 the scope of the federal Clean Water Act.
148	148	9 Section 10. Definitions. As used in this Act:
149	149	10 "Adjacent" means bordering, contiguous, or neighboring.
150	150	11 "Adjacent wetlands" includes wetlands separated from
151	151	12 waters of the United States by man-made dikes or barriers,
152	152	13 natural river berms, beach dunes, and other man-made or
153	153	14 natural structures.
154	154	15 "Affected property" means any property upon which a
155	155	16 regulated activity is conducted.
156	156	17 "Agency" means the Illinois Environmental Protection
157	157	18 Agency.
158	158	19 "Approved county or district" means a county or special
159	159	20 district with a stormwater program that has been approved
160	160	21 under Section 55 to issue permits under this Act instead of the
161	161	22 Department of Natural Resources.
162	162	23 "Approved wetland specialist" means a person who has met
163	163	24 the educational, training, and field experience requirements
164	164	25 that have been adopted, by rule, under this Act or set forth in
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175	175	1 an approved county or district code and that assure
176	176	2 knowledgeable wetland delineations using the Corps of
177	177	3 Engineers Wetland Delineation Manual in a manner that is
178	178	4 consistent with subsection (f) of Section 25 of this Act.
179	179	5 "Avoidance" means any action that is taken in a manner
180	180	6 that will cause a regulated activity not to occur and that is
181	181	7 consistent with the federal Clean Water Act 404(b)(1)
182	182	8 Guidelines developed by the U.S. Environmental Protection
183	183	9 Agency and the U.S. Army Corps of Engineers.
184	184	10 "Bog" means a peat-accumulating wetland that has no
185	185	11 significant inflows or outflows and that supports acidophilic
186	186	12 mosses, particularly sphagnum, resulting in highly acidic
187	187	13 conditions.
188	188	14 "Bottomland hardwood" means forested riverine floodplain
189	189	15 forest, including flatwoods in northeastern Illinois, that are
190	190	16 located in the 100-year flood plain of Illinois rivers and
191	191	17 streams and that are at least seasonally flooded.
192	192	18 "Class I wetland" means a top tier wetland as indicated by
193	193	19 type (such as bog, bottomland hardwood forest, or panne),
194	194	20 designation (such as Ramsar wetland of international
195	195	21 importance), or function (such as threatened or endangered
196	196	22 species habitat or important flood protection) consistent with
197	197	23 Section 25 of this Act. Class I wetlands do not include waters
198	198	24 of the United States.
199	199	25 "Class II wetland" means a wetland, including its
200	200	26 contiguous area, that is larger than 0.5 acres and is not a
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211	211	1 Class I wetland. Class II wetlands do not include waters of the
212	212	2 United States.
213	213	3 "Class III wetland" means a wetland, including its
214	214	4 contiguous area, that is between 0.1 acres and 0.5 acres and is
215	215	5 not a Class I wetland. Class III wetlands do not include waters
216	216	6 of the United States.
217	217	7 "Commercial battery energy storage system" means a type of
218	218	8 energy storage system that uses batteries to store and
219	219	9 distribute energy in the form of electricity for the primary
220	220	10 purpose of wholesale or retail sale and is not intended
221	221	11 primarily for use on the property on which the device or
222	222	12 devices reside.
223	223	13 "Commercial solar energy facility" means a "commercial
224	224	14 solar energy system" as defined in Section 10-720 of the
225	225	15 Illinois Property Tax Code.
226	226	16 "Contiguous area" means the portion of a wetland that
227	227	17 extends beyond the property boundary of the affected property.
228	228	18 "Corps of Engineers" means the U.S. Army Corps of
229	229	19 Engineers.
230	230	20 "Corps of Engineers Wetlands Delineation Manual" means the
231	231	21 1987 U.S. Army Corps of Engineers, Wetlands Delineation
232	232	22 Manual, Research Program Technical Report Y-87-1, and any
233	233	23 applicable Regional Supplements thereto in effect May 24,
234	234	24 2023.
235	235	25 "Cypress swamp" means forested, permanent, or
236	236	26 semi-permanent bodies of water, with species assemblages
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247	247	1 characteristic of the Gulf of Mexico and Southeastern Coastal
248	248	2 Plains and including bald cypress, which are typically found
249	249	3 in far southern Illinois.
250	250	4 "Department" means the Department of Natural Resources.
251	251	5 "Director" means the Director of Natural Resources.
252	252	6 "Discharge" means any addition of dredged or fill material
253	253	7 into, including redeposit of dredged material other than
254	254	8 incidental fallback within, State jurisdictional wetlands.
255	255	9 "Dredged material" means material that is excavated or
256	256	10 dredged from waters of the U.S. and waters of the State.
257	257	11 "Fen" means a wetland fed by an alkaline water source,
258	258	12 such as a calcareous spring or seep.
259	259	13 "Fill material" means material placed in a State
260	260	14 jurisdictional wetland where the material has the effect of
261	261	15 replacing any portion of a State jurisdictional wetland with
262	262	16 dry land or changing the bottom elevation of any portion of a
263	263	17 State jurisdictional wetland.
264	264	18 "General permit" means a permit issued by an approved
265	265	19 county or district, or the Department, in a manner that is
266	266	20 authorized under Section 40 of this Act. "General permit"
267	267	21 includes a U.S. Army Corps of Engineers nationwide permit.
268	268	22 "High-Quality Aquatic Resources" or "HQAR" means
269	269	23 high-quality aquatic resources consistent with the guidelines
270	270	24 of the Chicago District of the U.S. Army Corps of Engineers or
271	271	25 approved county or district codes.
272	272	26 "Individual permit" means a permit issued by the
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283	283	1 Department under Section 25 of this Act after case-specific
284	284	2 sequenced review (avoidance, minimization, mitigation) of the
285	285	3 proposed project and certification of compliance with State
286	286	4 water quality standards.
287	287	5 "In lieu fee mitigation" means a payment to an approved in
288	288	6 lieu fee program made by a permittee to satisfy a mitigation
289	289	7 requirement in accordance with this Act and implementing
290	290	8 rules.
291	291	9 "Maintenance" means work to repair and keep in good
292	292	10 working order existing structures in wetlands, including
293	293	11 emergency reconstruction of recently damaged parts of
294	294	12 currently serviceable structures, including dikes, dams,
295	295	13 levees, groins, riprap, breakwaters, causeways, and bridge
296	296	14 abutments or approaches, and transportation structures.
297	297	15 "Maintenance" does not include any modification that changes
298	298	16 the character, scope, or size of the original fill design but
299	299	17 such a modification may be eligible to use Nationwide Permit
300	300	18 3, Maintenance.
301	301	19 "Metropolitan Water Reclamation District" or "district"
302	302	20 means a special district organized under the Metropolitan
303	303	21 Water Reclamation District Act.
304	304	22 "Minimization" means reducing, as much as practicable, the
305	305	23 adverse environmental impact of an unavoidable regulated
306	306	24 activity in a manner that is consistent with this Act and the
307	307	25 federal Clean Water Act 404(b)(1) Guidelines developed by the
308	308	26 U.S. Environmental Protection Agency and the U.S. Army Corps
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319	319	1 of Engineers.
320	320	2 "Mitigation" means the restoration, establishment,
321	321	3 enhancement, or protection and maintenance of wetlands and
322	322	4 other aquatic resources for the purpose of compensating for
323	323	5 unavoidable adverse impacts that remain after all appropriate
324	324	6 and practicable avoidance and minimization have been achieved.
325	325	7 Mitigation must be consistent with the requirements of this
326	326	8 Act. Mitigation may include wetlands creation if authorized by
327	327	9 the Department in situations in which other mitigation is
328	328	10 impractical and the likelihood of success is high. Wetland
329	329	11 creation is restricted to areas that are currently
330	330	12 non-wetlands.
331	331	13 "Mitigation bank" means a site, or suite of sites, where
332	332	14 aquatic resources, such as wetlands, streams, wetland buffers,
333	333	15 and riparian areas, are restored, established, enhanced, or
334	334	16 preserved for the purpose of providing compensatory mitigation
335	335	17 for impacts authorized by permits under this Act.
336	336	18 "Nationwide permit" means a nationwide permit issued by
337	337	19 the U.S. Army Corps of Engineers as of the effective date of
338	338	20 this Act.
339	339	21 "Navigable water" means traditionally navigable waters
340	340	22 that were historically navigable, are presently navigable, or
341	341	23 are susceptible to future navigable use. Navigable water also
342	342	24 includes interstate waters (including interstate wetlands),
343	343	25 impoundments of traditionally navigable waters and interstate
344	344	26 waters (including interstate wetlands), and tributaries.
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355	355	1 "Ordinary high water mark" means that line on the shore
356	356	2 established by the fluctuations of water and indicated by
357	357	3 physical characteristics, such as a clear, natural line
358	358	4 impressed on the bank, shelving, changes in the character of
359	359	5 soil, destruction of terrestrial vegetation, the presence of
360	360	6 litter and debris, or other appropriate means that consider
361	361	7 the characteristics of the surrounding areas.
362	362	8 "Panne" means wet interdunal flats located near Lake
363	363	9 Michigan. "Panne" includes dune and swale wetlands.
364	364	10 "Permit" means a written authorization issued by the
365	365	11 Department of Natural Resources under this Act and
366	366	12 implementing rules. "Permit" includes general permits and
367	367	13 individual permits.
368	368	14 "Person" means an individual, partnership, co-partnership,
369	369	15 firm, company, limited liability company, corporation,
370	370	16 association, joint-stock company, trust, estate, political
371	371	17 subdivision, state or federal agency or other legal entity, or
372	372	18 its legal representative, employee, agent or assigns.
373	373	19 "Preconstruction notification" means notice that a
374	374	20 permittee must provide the Department before undertaking an
375	375	21 activity authorized by a general permit.
376	376	22 "Prior converted cropland" means a wetland that was
377	377	23 converted to agricultural use before December 23, 1985, that
378	378	24 had an agricultural commodity produced on it at least once
379	379	25 before December 23, 1985, that remains available for
380	380	26 agricultural commodity production, and that, as of December
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391	391	1 23, 1985, did not support woody vegetation and met the
392	392	2 following hydrologic criteria for a farmed wetland: (i)
393	393	3 inundation was less than 15 consecutive days during the
394	394	4 growing season or 10% of the growing season, whichever is
395	395	5 less, in most years (50% chance or more); and (ii) if a
396	396	6 pothole, ponding was less than 7 consecutive days during the
397	397	7 growing season in most years (50% chance or more) and
398	398	8 saturation was less than 14 consecutive days during the
399	399	9 growing season most years (50% chance or more). However, if
400	400	10 the prior converted cropland is changed out of agricultural
401	401	11 use (including conservation) and the area reverts to a
402	402	12 wetland, the area may become subject to this Act under Section
403	403	13 15.
404	404	14 "Regulated activity" means the discharge of dredged or
405	405	15 fill material into a State jurisdictional wetland subject to
406	406	16 this Act.
407	407	17 "Renewable energy facility" means (i) a commercial solar
408	408	18 energy facility or commercial battery energy storage system;
409	409	19 or (ii) supporting facilities. Supporting facilities mean
410	410	20 transmission lines, substations, access roads, meteorological
411	411	21 towers, storage containers, and equipment associated with the
412	412	22 generation and storage of electricity by a commercial solar
413	413	23 energy facility.
414	414	24 "Significant nexus" means connectivity or nexus to
415	415	25 maintaining the chemical, physical, or biological integrity of
416	416	26 navigable waters.
417	417
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427	427	1 "State jurisdictional wetland" means a wetland that is
428	428	2 protected by the requirements of this Act and is identified
429	429	3 consistent with Department rules adopted under Section 40 of
430	430	4 this Act. State jurisdictional wetlands are adjacent to or
431	431	5 otherwise have a significant nexus to maintaining the
432	432	6 chemical, physical, or biological integrity of navigable
433	433	7 waters. A State jurisdictional wetland does not include waters
434	434	8 of the United States.
435	435	9 "Threatened or endangered species" means those species
436	436	10 that have been designated as threatened or endangered under
437	437	11 the Illinois Endangered Species Protection Act and those
438	438	12 species that have been listed as threatened or endangered
439	439	13 under the federal Endangered Species Act.
440	440	14 "Upland" means non-wetland, dry land.
441	441	15 "Voluntary aquatic habitat restoration project" means
442	442	16 activities that are voluntarily undertaken (not as required
443	443	17 mitigation) to restore, reestablish, rehabilitate, or enhance
444	444	18 altered, degraded, or former aquatic habitats that result in a
445	445	19 net increase in aquatic habitat functions and services
446	446	20 consistent with historic, pre-disturbance functions and
447	447	21 services of the aquatic habitat.
448	448	22 "Wetlands" means those areas that are inundated or
449	449	23 saturated by surface or groundwater at a frequency and
450	450	24 duration sufficient to support, and that under normal
451	451	25 circumstances do support, a prevalence of vegetation typically
452	452	26 adapted for life in saturated soil conditions. "Wetlands"
453	453
454	454
455	455
456	456
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463	463	1 includes areas that are delineated in accordance with the
464	464	2 Corps of Engineers Wetland Delineation Manual.
465	465	3 Section 15. Exemptions.
466	466	4 (a) Consistent with Section 404(f) of the federal Clean
467	467	5 Water Act, as long as they do not have as their purpose
468	468	6 bringing a wetland into a use to which it was not previously
469	469	7 subject where the flow or circulation of navigable waters may
470	470	8 be impaired or the reach of such waters be reduced and do not
471	471	9 entail discharge of toxic pollutants consistent with Section
472	472	10 307 of the Clean Water Act, the following activities are not
473	473	11 prohibited by or otherwise subject to regulation under this
474	474	12 Act:
475	475	13 (1) Normal farming, silviculture, and ranching
476	476	14 activities, including plowing, seeding, cultivating, minor
477	477	15 drainage, and harvesting for the production of food,
478	478	16 fiber, and forest products, or upland soil and water
479	479	17 conservation practices.
480	480	18 (2) Maintenance, including emergency reconstruction of
481	481	19 recently damaged parts, of currently serviceable
482	482	20 structures, such as dikes, dams, levees, groins, riprap,
483	483	21 breakwaters, causeways, bridge abutments or approaches,
484	484	22 and transportation structures. Maintenance does not
485	485	23 include any modification that changes the character,
486	486	24 scope, or size of the original fill design. Emergency
487	487	25 reconstruction must occur within a reasonable period of
488	488
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490	490
491	491
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498	498	1 time after damage occurs in order to qualify for this
499	499	2 exemption.
500	500	3 (3) Construction or maintenance of farm or stock ponds
501	501	4 or irrigation ditches, or the maintenance (but not
502	502	5 construction) of drainage ditches. Discharge associated
503	503	6 with siphons, pumps, headgates, wingwalls, weirs,
504	504	7 diversion structures, and such other facilities as are
505	505	8 appurtenant and functionally related to irrigation and
506	506	9 ditches are included in this definition.
507	507	10 (4) Construction of temporary sedimentation basins on
508	508	11 a construction site which does not include any regulated
509	509	12 activities within a wetland. As used in this paragraph,
510	510	13 the term "construction site" means any site involving the
511	511	14 erection of buildings, roads, and other discrete
512	512	15 structures and the installation of support facilities
513	513	16 necessary for construction and utilization of such
514	514	17 structures. "Construction site" also includes any other
515	515	18 land areas which involve land-disturbing excavation
516	516	19 activities, including quarrying or other mining
517	517	20 activities, where an increase in the runoff of sediment is
518	518	21 controlled through the use of temporary sedimentation
519	519	22 basins.
520	520	23 (5) Construction or maintenance of farm roads or
521	521	24 forest roads or temporary roads for moving mining
522	522	25 equipment, where such roads are constructed and
523	523	26 maintained, in accordance with best management practices,
524	524
525	525
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527	527
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534	534	1 to assure that flow and circulation patterns and chemical
535	535	2 and biological characteristics of the wetland are not
536	536	3 impaired, that the reach of the wetland is not reduced,
537	537	4 and that any adverse effect on the aquatic environment
538	538	5 will be otherwise minimized.
539	539	6 (6) Activities for the placement of pilings for linear
540	540	7 projects, including bridges, elevated walkways, and power
541	541	8 line structures in accordance with best management
542	542	9 practices, to assure that the flow and circulation
543	543	10 patterns and chemical and biological characteristics of
544	544	11 the wetland are not impaired, that the reach of the
545	545	12 wetland is not reduced, and that any adverse effect on the
546	546	13 aquatic environment will be otherwise minimized.
547	547	14 (b) Any exemption that is authorized by and pertaining to
548	548	15 wetlands that are subject to regulation under the federal
549	549	16 Clean Water Act, or regulations promulgated thereunder, at the
550	550	17 time of enactment of this Act, shall also be an exemption for
551	551	18 the purpose of this Act.
552	552	19 (c) The following are exempt from regulation as State
553	553	20 jurisdictional wetlands under this Act:
554	554	21 (1) Waste treatment systems, including treatment ponds
555	555	22 or lagoons designed to meet the requirements of the
556	556	23 federal Clean Water Act and comply with State water
557	557	24 quality standards.
558	558	25 (2) Prior converted cropland unless there has been a
559	559	26 change in use out of agricultural or conservation use and
560	560
561	561
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563	563
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570	570	1 the area reverts to a wetland.
571	571	2 (3) Ditches (including roadside ditches) excavated
572	572	3 wholly in and draining only dry land and that do not carry
573	573	4 a relatively permanent flow of water.
574	574	5 (4) An artificially irrigated area that would revert
575	575	6 to upland if the irrigation ceased. This shall also
576	576	7 include the pumping of water for purposes of waterfowl
577	577	8 hunting or creating waterfowl habitat.
578	578	9 (5) An artificial lake or pond created by excavating
579	579	10 or diking upland to collect and retain water and which are
580	580	11 used exclusively for such purposes as stock watering,
581	581	12 irrigation, settling basins, or rice growing.
582	582	13 (6) Artificial reflecting or swimming pools or other
583	583	14 small ornamental bodies of water created by excavating or
584	584	15 diking dry land to retain water for primarily aesthetic
585	585	16 reasons.
586	586	17 (7) A water-filled depression created in dry land
587	587	18 incidental to construction activity and pits excavated in
588	588	19 dry land for the purpose of obtaining fill, sand, or
589	589	20 gravel unless and until the construction or excavation
590	590	21 operation is abandoned and the resulting water body meets
591	591	22 the definition of "waters of the State" consistent with
592	592	23 the Environmental Protection Act, including Section 3.550
593	593	24 of the Environmental Protection Act.
594	594	25 (8) Swales and erosional features, including gullies,
595	595	26 rills, and small washes, characterized by low volume,
596	596
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606	606	1 infrequent, or short duration flow.
607	607	2 (9) Wetlands created by the construction of stormwater
608	608	3 facilities in upland areas, provided that the facility was
609	609	4 not created for the purpose of wetland mitigation.
610	610	5 (d) Any activity with respect to which a county or special
611	611	6 district has an approved program under Section 55 of this Act.
612	612	7 Section 20. Applicability.
613	613	8 (a) The requirements of this Act apply to all State
614	614	9 jurisdictional wetlands as that term is defined in this Act.
615	615	10 If a wetland ceases to meet that definition because it becomes
616	616	11 subject to regulation under the federal Clean Water Act, it
617	617	12 shall no longer be subject to the provisions of this Act. The
618	618	13 Department may enter into an agreement with the Corps of
619	619	14 Engineers to coordinate the permit program under this Act with
620	620	15 the Corps of Engineers permit program under Section 404 of the
621	621	16 federal Clean Water Act.
622	622	17 (b) The following are presumed to be adjacent or have a
623	623	18 significant nexus to maintaining the chemical, physical, or
624	624	19 biological integrity of a navigable water and as such are
625	625	20 State jurisdictional wetlands for purposes of this Act:
626	626	21 (1) wetlands that are wholly or partially located
627	627	22 within 100 feet of the ordinary high water mark of a
628	628	23 navigable water, interstate water, or tributary;
629	629	24 (2) wetlands that are wholly or partially located in
630	630	25 the 100-year floodplain and are within 1,500 feet of the
631	631
632	632
633	633
634	634
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641	641	1 ordinary high water mark of a navigable water, interstate
642	642	2 water, or tributary;
643	643	3 (3) wetlands that are wholly or partially within 1,500
644	644	4 feet of the ordinary high water mark of Lake Michigan; or
645	645	5 (4) wetlands that have a visible surface water or a
646	646	6 regular shallow subsurface water connection to a navigable
647	647	7 water.
648	648	8 (c) An affected property owner or developer may introduce
649	649	9 information that is relevant to demonstrate that a particular
650	650	10 wetland is not a State jurisdictional wetland, thereby
651	651	11 rebutting the presumption in subsection (b). The Department
652	652	12 shall consider information presented to rebut the presumption
653	653	13 and determine whether the presumption has been rebutted. If
654	654	14 the Department determines that the presumption is rebutted and
655	655	15 the wetland is not a jurisdictional wetland for the purpose of
656	656	16 this Act, the wetland shall not be subject to this Act.
657	657	17 Section 25. Regulated activities; individual permits;
658	658	18 wetland classification; mitigation; delineation.
659	659	19 (a) No person may discharge dredged or fill material into
660	660	20 a State jurisdictional wetland protected by this Act except in
661	661	21 accordance with the terms of an individual or general permit
662	662	22 issued by the Department under this Section or Section 30 of
663	663	23 this Act. This subsection (a) becomes effective on the date
664	664	24 the Department adopts rules under Section 40 of this Act.
665	665	25 (b) No permit shall be required under this Act, and the
666	666
667	667
668	668
669	669
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676	676	1 requirements of the Act shall not apply to, renewable energy
677	677	2 facility construction, maintenance, repair, improvement, or
678	678	3 reconstruction that commenced construction before the
679	679	4 effective date of rules adopted under Section 40 of this Act.
680	680	5 For purposes of this subsection, "commenced construction"
681	681	6 means:
682	682	7 (1) to have begun a continuous program of on-site
683	683	8 physical construction, such as the placement, assembly, or
684	684	9 installation of facilities or equipment or the conducting
685	685	10 of site preparation work, including clearing, excavation,
686	686	11 or removal of existing structures;
687	687	12 (2) to have submitted a binding application or bid to
688	688	13 the Illinois Power Agency to execute a Renewable Energy
689	689	14 Credit Contract under Section 1-75 of the Illinois Power
690	690	15 Agency Act;
691	691	16 (3) to have entered into a binding contractual
692	692	17 agreement for the purchase and sale of electricity; or
693	693	18 (4) to have obtained municipal or county siting
694	694	19 approval, a special use permit, or building approval.
695	695	20 (c) Wetlands shall be classified as follows:
696	696	21 (1) The Department shall classify a wetland as Class I
697	697	22 if the wetland:
698	698	23 (A) is or encompasses a bog, bottomland hardwood
699	699	24 forest, fen, panne, or cypress swamp;
700	700	25 (B) has been designated a Ramsar wetland of
701	701	26 international importance under the Convention on
702	702
703	703
704	704
705	705
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712	712	1 Wetlands;
713	713	2 (C) is designated for important flood protection
714	714	3 services under paragraph (3);
715	715	4 (D) is occupied or suitable habitat for a
716	716	5 threatened or endangered species listed under State or
717	717	6 federal law;
718	718	7 (E) has a Floristic Quality Index that is equal to
719	719	8 or greater than 20 or a mean coefficient of
720	720	9 conservatism (Mean C) equal to or greater than 3.5,
721	721	10 determined in accordance with rules adopted by the
722	722	11 Department; or
723	723	12 (F) is a High-Quality Aquatic Resource.
724	724	13 (2) The Department shall classify a non-Class I
725	725	14 wetland as a Class II wetland if the wetland, including
726	726	15 its contiguous area, is larger than 0.5 acres. However, if
727	727	16 a non-Class I wetland is smaller than 0.5 acres it shall be
728	728	17 designated a Class III wetland. If a Class III wetland is
729	729	18 1/10th of an acre or smaller, there is no permit required.
730	730	19 (3) The Department may, in consultation with the
731	731	20 Illinois Emergency Management Agency and Office of
732	732	21 Homeland Security, the Federal Emergency Management Agency
733	733	22 or local authorities, designate a wetland as a Class I
734	734	23 wetland due to important flood protection services
735	735	24 protecting human life and property if the wetland is no
736	736	25 longer protected under the federal Clean Water Act.
737	737	26 (c) Mitigation shall be required in accordance with this
738	738
739	739
740	740
741	741
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748	748	1 Act for permitted activities and shall be conducted according
749	749	2 to the following preferred order:
750	750	3 (1) Discharges impacting Class I wetlands shall be
751	751	4 mitigated through either on-site mitigation or off-site
752	752	5 mitigation at an approved wetland mitigation bank within
753	753	6 the same watershed as the location of the proposed fill.
754	754	7 Mitigation shall be in kind, restoring to the maximum
755	755	8 degree practicable, as determined by the Department, both
756	756	9 the type and functions of the wetland that will be
757	757	10 affected by the regulated activity. The mitigation ratio
758	758	11 shall be 5:1 unless the Director, for good cause shown and
759	759	12 on a case-by-case basis, authorizes a higher mitigation
760	760	13 ratio not to exceed 6:1 or a lower mitigation ratio not
761	761	14 less than 4:1. In lieu fee mitigation may be used for
762	762	15 mitigation when there are no available mitigation credits
763	763	16 within the watershed.
764	764	17 (2) Discharges impacting Class II wetlands shall be
765	765	18 mitigated through either on-site mitigation or off-site
766	766	19 mitigation at an approved wetland mitigation bank within
767	767	20 the same watershed as the location of the proposed fill.
768	768	21 Mitigation shall be in kind, restoring to the maximum
769	769	22 degree practicable as determined by the Department, both
770	770	23 the type and functions of the wetland that will be
771	771	24 affected by the regulated activity. The mitigation ratio
772	772	25 shall be 3:1 unless the Director, for good cause shown and
773	773	26 on a case-by-case basis, authorizes a higher mitigation
774	774
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784	784	1 ratio not to exceed 3.5:1 or a lower mitigation ratio not
785	785	2 less than 2.5:1. In lieu fee mitigation may be used for
786	786	3 mitigation when there are no available mitigation credits
787	787	4 within the watershed.
788	788	5 (3) Discharges impacting Class III wetlands shall be
789	789	6 mitigated through either participation in an approved
790	790	7 wetland mitigation bank or an approved in-lieu fee
791	791	8 program, unless the Department for good cause requires in
792	792	9 kind on-site mitigation or off-site mitigation at an
793	793	10 approved mitigation bank. The mitigation ratio shall be
794	794	11 1.5:1 for compensation through an approved wetland
795	795	12 mitigation bank and 2:1 for compensation through an
796	796	13 approved in-lieu fee program. The Director, for good cause
797	797	14 shown and on a case-by-case basis, may authorize a higher
798	798	15 or lower mitigation ratio.
799	799	16 (d) Persons seeking a permit are responsible for wetland
800	800	17 delineation and classification made by or under the
801	801	18 supervision of an approved wetland specialist. Wetland
802	802	19 delineations shall be made in accordance with the Corps of
803	803	20 Engineers Wetland Delineation Manual. Classifications shall be
804	804	21 in accordance with this Section or an approved program under
805	805	22 Section 55. Delineations by the Corps of Engineers, by
806	806	23 approved counties, or by Corps of Engineers approved agencies
807	807	24 shall be honored.
808	808	25 (e) Persons seeking an individual permit shall provide the
809	809	26 Department with a complete application, including, at a
810	810
811	811
812	812
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820	820	1 minimum, the following items: (i) a map of the area that will
821	821	2 be affected by the activity, including wetland and water
822	822	3 boundaries for the areas affected and the existing uses and
823	823	4 structures; (ii) a wetland delineation made in accordance with
824	824	5 the Corps of Engineers Wetland Delineation Manual by or under
825	825	6 the supervision of an approved wetland specialist and this
826	826	7 Section; (iii) a description of the proposed activity,
827	827	8 including its purpose, the location and dimensions of any
828	828	9 structures, grading or fills, drainage, roads, sewers and
829	829	10 water supply, parking lots, stormwater facilities, discharge
830	830	11 of pollutants and on-site waste disposal; (iv) a description
831	831	12 of any public benefit to be derived from the proposed project;
832	832	13 (v) a description of avoidance, minimization, and mitigation,
833	833	14 including a mitigation plan; and (vi) the names and addresses
834	834	15 of adjacent landowners as determined by the current tax
835	835	16 assessment rolls. The Department shall notify the applicant
836	836	17 within 20 business days if the permit application is
837	837	18 incomplete and provide a reasonable time for the applicant to
838	838	19 correct deficiencies in the permit application. Within 90
839	839	20 business days of receipt of a complete permit application, the
840	840	21 Department shall either issue the permit, deny the permit, or
841	841	22 issue the permit with conditions. All individual permit
842	842	23 decisions are subject to public comment. If a public hearing
843	843	24 is held, the deadline to make a permit determination is
844	844	25 extended by 45 business days.
845	845	26 (f) The Department shall evaluate individual permit
846	846
847	847
848	848
849	849
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856	856	1 requests through the following sequence: (i) avoidance of
857	857	2 impacts to aquatic resources if a less environmentally
858	858	3 damaging practicable alternative exists; (ii) minimization of
859	859	4 unavoidable impacts by taking appropriate and practicable
860	860	5 steps such as reduction of the footprint of the fill; (iii)
861	861	6 compensatory mitigation for any remaining impacts to aquatic
862	862	7 resources in accordance with this Act. The Department shall
863	863	8 not issue an individual permit pursuant to this Section unless
864	864	9 the Agency has certified to the Department that the proposed
865	865	10 activity will not cause or contribute to a violation of a State
866	866	11 water quality standard. The Agency shall, within 80 business
867	867	12 days of receipt of a complete application, approve, deny, or
868	868	13 approve with conditions the water quality certification. The
869	869	14 applicant for a permit may mutually agree to extend the 80-day
870	870	15 deadline up to an additional 80 business days in which the
871	871	16 Agency must take final action on the water quality
872	872	17 certification under this paragraph. If the Agency does not
873	873	18 approve, deny, or approve with conditions the water quality
874	874	19 certification within the extended time period, the
875	875	20 certification requirements shall be waived and the Department
876	876	21 may issue their permit decision consistent with the sections
877	877	22 of this Act.
878	878	23 (g) Upon request by an applicant, the Department may issue
879	879	24 an after-the-fact permit if the Department determines that the
880	880	25 activities covered by the after-the-fact permit were
881	881	26 undertaken and conducted in response to emergency
882	882
883	883
884	884
885	885
886	886
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888	888
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892	892	1 circumstances that constituted an imminent threat to persons,
893	893	2 public infrastructure, personal property, or uninterrupted
894	894	3 utility service. The request for an after-the-fact permit must
895	895	4 be made as soon as reasonably possible after the event. The
896	896	5 Department shall require compensatory mitigation. If the
897	897	6 Department for good cause shown denies an after-the-fact
898	898	7 permit, the applicant shall be in violation of this Act.
899	899	8 However, the applicant and Department may, through mutual
900	900	9 agreement, provide for compensatory mitigation, restoration,
901	901	10 or other measures to resolve the violation. In such an
902	902	11 instance, the applicant may appeal the denial of an
903	903	12 after-the-fact permit consistent with the appeals procedures
904	904	13 in this Act.
905	905	14 (h) The permit applicant and the Department may waive or
906	906	15 extend the permit deadlines in this Section through mutual
907	907	16 agreement. If the Department is unable to comply with the
908	908	17 permit deadlines and they are not waived or extended through
909	909	18 mutual agreement, the permit application will be denied
910	910	19 without prejudice.
911	911	20 Section 30. General permits.
912	912	21 (a) Notwithstanding Section 25, any person who intends to
913	913	22 conduct a regulated activity within the State may do so in
914	914	23 accordance with a general permit issued by the Department
915	915	24 under this Section. A general permit pre-authorizes a category
916	916	25 of activities that are similar in nature and impact on water
917	917
918	918
919	919
920	920
921	921
922	922	HB3596 - 25 - LRB104 09762 BDA 19828 b
923	923
924	924
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926	926	HB3596 - 26 - LRB104 09762 BDA 19828 b
927	927	1 quality, will have only minimal adverse effects when performed
928	928	2 separately, will have minimal cumulative impacts on water
929	929	3 quality provided the permittee complies with all of the
930	930	4 conditions of the general permit, and will not cause or
931	931	5 contribute to a violation of State water quality standards.
932	932	6 (b) Permits for all categories of activities, subject to
933	933	7 the same permit limitations and conditions, that are the
934	934	8 subject of a nationwide permit issued by the Corps of
935	935	9 Engineers, in effect on the date of the enactment of this Act,
936	936	10 are adopted as general permits covering regulated activities
937	937	11 subject to this Act. Notwithstanding the foregoing, all such
938	938	12 permits will include a preconstruction notification
939	939	13 requirement and compensatory mitigation, unless the permit
940	940	14 states compensatory mitigation is not required because the
941	941	15 work is designed to improve water quality or, with respect to
942	942	16 voluntary aquatic habitat restoration, to provide net increase
943	943	17 in wetland function. In any case, compensatory mitigation is
944	944	18 not required for impacts below 1/10 of an acre.
945	945	19 (c) The Department may, through rulemaking in accordance
946	946	20 with the Illinois Administrative Procedure Act, adopt general
947	947	21 permits covering activities not covered by general permits
948	948	22 under subsection (b) of this Section if the Department
949	949	23 determines that the activities in the category would be
950	950	24 subject to the same permit limitations and conditions and will
951	951	25 cause only minimal adverse environmental effects when
952	952	26 performed separately, will have only minimal cumulative
953	953
954	954
955	955
956	956
957	957
958	958	HB3596 - 26 - LRB104 09762 BDA 19828 b
959	959
960	960
961	961	HB3596- 27 -LRB104 09762 BDA 19828 b HB3596 - 27 - LRB104 09762 BDA 19828 b
962	962	HB3596 - 27 - LRB104 09762 BDA 19828 b
963	963	1 adverse effect on the environment, will not cause or
964	964	2 contribute to a violation of State water quality standards
965	965	3 when performed separately, and will have only a minimal
966	966	4 cumulative adverse effect on water quality. The Department
967	967	5 shall prescribe best management practices for any general
968	968	6 permit issued under this Section. The Department shall include
969	969	7 compensatory mitigation requirements in general permits for
970	970	8 impacts that exceed 1/10 of an acre.
971	971	9 (d) The Department shall adopt a general permit for:
972	972	10 (1) construction or maintenance of access roads for
973	973	11 utility lines, substations, or related equipment or
974	974	12 facilities with adequate culverts, bridges, or other
975	975	13 structures to provide freshwater connectivity and passage
976	976	14 for fish or other aquatic life;
977	977	15 (2) activities for the purpose of preserving and
978	978	16 enhancing aviation safety or to prevent an airport hazard;
979	979	17 and
980	980	18 (3) conservation activities, such as voluntary aquatic
981	981	19 habitat restoration and fish passage.
982	982	20 The Department shall develop the general permit under
983	983	21 paragraph (3) in consultation with local, state, and federal
984	984	22 resource agencies, such as the U.S. Fish and Wildlife Service,
985	985	23 and qualified non-profit organizations engaged in aquatic
986	986	24 habitat restoration as a central part of their mission.
987	987	25 (e) No general permit adopted under subsection (b), (c),
988	988	26 or (d) of this Section shall be for a period of more than 5
989	989
990	990
991	991
992	992
993	993
994	994	HB3596 - 27 - LRB104 09762 BDA 19828 b
995	995
996	996
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998	998	HB3596 - 28 - LRB104 09762 BDA 19828 b
999	999	1 years after the date of its adoption, and the Department shall
1000	1000	2 revoke or modify such a general permit, after opportunity for
1001	1001	3 public hearing, if the Department determines that the
1002	1002	4 activities authorized by the general permit have an adverse
1003	1003	5 impact on the environment, cause or contribute to a violation
1004	1004	6 of State water quality standards, or are more appropriately
1005	1005	7 authorized by individual permits.
1006	1006	8 (f) Compliance with the terms of a general permit shall be
1007	1007	9 deemed compliance with the provisions of this Act if the
1008	1008	10 applicant:
1009	1009	11 (1) files a preconstruction notification in accordance
1010	1010	12 with regulations adopted under this Act, including the
1011	1011	13 specific requirements of the general permit;
1012	1012	14 (2) files all reports required by the general permit;
1013	1013	15 (3) complies with all limitations required by the
1014	1014	16 general permit; and
1015	1015	17 (4) complies with applicable compensatory mitigation
1016	1016	18 requirements.
1017	1017	19 (g) The Department may respond to a preconstruction
1018	1018	20 notification issued under this Section within 30 days after
1019	1019	21 the Department receives the notice. In any response, the
1020	1020	22 Department may require the applicant to:
1021	1021	23 (1) provide more information to determine whether the
1022	1022	24 applicant's proposed regulated activity is covered by the
1023	1023	25 general permit;
1024	1024	26 (2) file a preconstruction notification for a
1025	1025
1026	1026
1027	1027
1028	1028
1029	1029
1030	1030	HB3596 - 28 - LRB104 09762 BDA 19828 b
1031	1031
1032	1032
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1034	1034	HB3596 - 29 - LRB104 09762 BDA 19828 b
1035	1035	1 different general permit if the Department determines the
1036	1036	2 applicant's proposed activity is not covered by the
1037	1037	3 general permit for which the notification was filed; or
1038	1038	4 (3) apply for an individual permit if the Department
1039	1039	5 determines that the proposed activity does not fall within
1040	1040	6 the scope of any valid general permit.
1041	1041	7 (h) If a person files a preconstruction discharge
1042	1042	8 notification and receives no response under subsection (g) of
1043	1043	9 this Section for a general permit that is valid at the time of
1044	1044	10 the notification but that general permit is later modified,
1045	1045	11 revoked, or expires, that person may proceed as if that
1046	1046	12 general permit were still valid for the purposes of the
1047	1047	13 project for which the preconstruction discharge notification
1048	1048	14 was filed.
1049	1049	15 (i) The Department may require bonds or letters of credit
1050	1050	16 in favor of the State, including conditions sufficient to
1051	1051	17 secure compliance with conditions and limitations of a permit
1052	1052	18 under this Act.
1053	1053	19 Section 35. In lieu fee program; permittee responsible for
1054	1054	20 on-site mitigation and mitigation banking.
1055	1055	21 (a) The following entities may establish and operate a
1056	1056	22 mitigation bank or in lieu fee program consistent with this
1057	1057	23 Act and rules implementing this Act:
1058	1058	24 (1) State agencies;
1059	1059	25 (2) qualified for-profit and non-profit entities; and
1060	1060
1061	1061
1062	1062
1063	1063
1064	1064
1065	1065	HB3596 - 29 - LRB104 09762 BDA 19828 b
1066	1066
1067	1067
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1069	1069	HB3596 - 30 - LRB104 09762 BDA 19828 b
1070	1070	1 (3) units of local government, including, but not
1071	1071	2 limited to, counties, the Metropolitan Water Reclamation
1072	1072	3 District of Greater Chicago (MWRD), soil and water
1073	1073	4 conservation districts, and county forest districts.
1074	1074	5 (b) Mitigation banks may be established on public or
1075	1075	6 private lands and must be located on sites that possess the
1076	1076	7 physical, chemical, and biological characteristics to support
1077	1077	8 establishment of the desired aquatic resources and functions,
1078	1078	9 such as wetland hydrology.
1079	1079	10 A mitigation bank may be approved to provide mitigation
1080	1080	11 for impacts to wetlands that have been approved by the Corps of
1081	1081	12 Engineers under Section 404 of the federal Clean Water Act,
1082	1082	13 for impacts to wetlands under the Illinois Interagency
1083	1083	14 Wetlands Policy Act of 1989, or for both. A mitigation bank
1084	1084	15 must be approved by the Department in accordance with this Act
1085	1085	16 and implementing rules, by an approved county, or by the Corps
1086	1086	17 of Engineers in accordance with the process established in 33
1087	1087	18 CFR 332.8 and 40 CFR 230.98.
1088	1088	19 (c) The requirements for mitigation banks shall include a
1089	1089	20 mitigation bank instrument, long-term management and
1090	1090	21 protection, monitoring requirements, remedial action
1091	1091	22 procedures, reporting requirements, and financial assurances,
1092	1092	23 such as performance bonds.
1093	1093	24 (d) In lieu fee programs must include (i) an agreement
1094	1094	25 between an operating entity listed in subsection (a) and the
1095	1095	26 Department that is similar to a mitigation bank instrument,
1096	1096
1097	1097
1098	1098
1099	1099
1100	1100
1101	1101	HB3596 - 30 - LRB104 09762 BDA 19828 b
1102	1102
1103	1103
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1105	1105	HB3596 - 31 - LRB104 09762 BDA 19828 b
1106	1106	1 (ii) a time-table, such as a requirement to use funds to design
1107	1107	2 and implement restoration projects within 3 years, (iii)
1108	1108	3 accounting requirements, including, but not limited to,
1109	1109	4 watershed-based accounting, (iv) monitoring requirements, (v)
1110	1110	5 reporting requirements, and (vi) financial assurances. Any
1111	1111	6 agency in lieu fee program must have provisions that protect
1112	1112	7 the integrity of the fund and prevent this funding from being
1113	1113	8 reassigned to other uses.
1114	1114	9 (e) The permittee is responsible for on-site mitigation as
1115	1115	10 approved by the Department on a case-by-case basis in
1116	1116	11 accordance with this Act and implementing rules if (i) on-site
1117	1117	12 mitigation has a strong likelihood of success, (ii) the
1118	1118	13 permittee has a Department approved monitoring plan, and (iii)
1119	1119	14 sufficient financial assurances, such as bonds or letters of
1120	1120	15 credit in favor of the State, have been provided as required by
1121	1121	16 the Department to assure long-term success.
1122	1122	17 Section 40. Rulemaking and reporting.
1123	1123	18 (a) The Department shall adopt rules pursuant to the
1124	1124	19 Illinois Administrative Procedure Act:
1125	1125	20 (1) to implement Sections 25 and 30 of this Act within
1126	1126	21 one year after the effective date of this Act, including:
1127	1127	22 (A) rules for the review, issuance, denial, or
1128	1128	23 issuance with conditions of individual permits; and
1129	1129	24 (B) rules to promulgate, revise, or revoke general
1130	1130	25 permits;
1131	1131
1132	1132
1133	1133
1134	1134
1135	1135
1136	1136	HB3596 - 31 - LRB104 09762 BDA 19828 b
1137	1137
1138	1138
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1140	1140	HB3596 - 32 - LRB104 09762 BDA 19828 b
1141	1141	1 (2) to administer and prioritize use of funding from
1142	1142	2 the Wetlands Protection Fund under Section 60 of this Act;
1143	1143	3 (3) to approve mitigation banks and in lieu fee
1144	1144	4 programs under Section 35 of this Act, including:
1145	1145	5 (A) criteria that an applicant to operate a
1146	1146	6 mitigation or in lieu fee program under Section 35 of
1147	1147	7 this Act shall meet and that are at least as stringent
1148	1148	8 as the U.S. Army Corps of Engineers requirements set
1149	1149	9 out in 33 CFR Part 332;
1150	1150	10 (B) requirements for in lieu fee agreements
1151	1151	11 consistent with subsection (d) of Section 35 of this
1152	1152	12 Act;
1153	1153	13 (C) priority for mitigation banks and in lieu fee
1154	1154	14 programs that restore previously existing wetlands and
1155	1155	15 small streams; and
1156	1156	16 (D) surety provisions for permittee-responsible
1157	1157	17 on-site mitigation, mitigation banks, and in lieu fee
1158	1158	18 programs;
1159	1159	19 (4) to establish, within one year after the effective
1160	1160	20 date of this Act, the procedures under which a
1161	1161	21 governmental body with a stormwater management program
1162	1162	22 under Section 5-1062 of the Counties Code or under Section
1163	1163	23 7h of the Metropolitan Water Reclamation District Act
1164	1164	24 shall be recognized to have met the conditions of
1165	1165	25 subsection (b) of Section 55 of this Act;
1166	1166	26 (5) to govern State jurisdictional wetlands
1167	1167
1168	1168
1169	1169
1170	1170
1171	1171
1172	1172	HB3596 - 32 - LRB104 09762 BDA 19828 b
1173	1173
1174	1174
1175	1175	HB3596- 33 -LRB104 09762 BDA 19828 b HB3596 - 33 - LRB104 09762 BDA 19828 b
1176	1176	HB3596 - 33 - LRB104 09762 BDA 19828 b
1177	1177	1 determinations; State jurisdictional wetlands are adjacent
1178	1178	2 to or otherwise have a significant nexus to maintaining
1179	1179	3 the chemical, physical or biological integrity of
1180	1180	4 navigable waters;
1181	1181	5 (6) to establish procedures and standards for
1182	1182	6 rebutting a significant nexus presumption under Section 20
1183	1183	7 of this Act;
1184	1184	8 (7) to provide for approval of wetland delineators
1185	1185	9 consistent with subsection (f) of Section 25 of this Act,
1186	1186	10 including recognition of existing county, special
1187	1187	11 district, or U.S. Army Corps of Engineers wetland
1188	1188	12 delineator training programs, approval programs, or both;
1189	1189	13 and
1190	1190	14 (8) to otherwise implement and administer this Act.
1191	1191	15 (b) The Department may provide by rule for any
1192	1192	16 requirements regarding bonds or letters of credit in favor of
1193	1193	17 the State, including conditions sufficient to secure
1194	1194	18 compliance with conditions and limitations of a permit.
1195	1195	19 (c) The Department may consult with the Illinois Water
1196	1196	20 Plan Task Force.
1197	1197	21 (d) The Department shall seek to create a joint permit
1198	1198	22 process with the U.S. Army Corps of Engineers.
1199	1199	23 (e) Subject to appropriation, the Department shall do all
1200	1200	24 of the following:
1201	1201	25 (1) provide a report to the Governor and the Illinois
1202	1202	26 General Assembly regarding implementation of this Act and
1203	1203
1204	1204
1205	1205
1206	1206
1207	1207
1208	1208	HB3596 - 33 - LRB104 09762 BDA 19828 b
1209	1209
1210	1210
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1212	1212	HB3596 - 34 - LRB104 09762 BDA 19828 b
1213	1213	1 recommendations, including legislative proposals, to
1214	1214	2 enhance the effectiveness of this Act;
1215	1215	3 (2) provide recommendations to harmonize these
1216	1216	4 wetlands protections with the Illinois Interagency
1217	1217	5 Wetlands Policy Act of 1989; and
1218	1218	6 (3) study the impact of federal rollback of protection
1219	1219	7 for waters beyond wetlands, such as ephemeral streams, in
1220	1220	8 Illinois and provide recommendations, including possible
1221	1221	9 legislative proposals, to protect the citizens of Illinois
1222	1222	10 and waters of the State.
1223	1223	11 Section 45. Appeal of final Department decisions; judicial
1224	1224	12 review.
1225	1225	13 (a) Any permit applicant who has been denied a permit in
1226	1226	14 whole or in part, and any person who participated in the permit
1227	1227	15 proceeding and who is aggrieved by a decision of the
1228	1228	16 Department to grant a permit in whole or in part, may appeal
1229	1229	17 the decision to the Director within 60 calendar days of the
1230	1230	18 date the permit is granted or denied. In all such appeals, the
1231	1231	19 burden of persuasion shall be on the party appealing the
1232	1232	20 Department's decision. Appeals shall be in accordance with
1233	1233	21 administrative rules set out by the Department, including
1234	1234	22 allowed basis for appeals.
1235	1235	23 (b) A person who is aggrieved by a final decision made
1236	1236	24 under this Act and who has participated in an appeal to the
1237	1237	25 Director under subsection (a) of this Section, including
1238	1238
1239	1239
1240	1240
1241	1241
1242	1242
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1244	1244
1245	1245
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1247	1247	HB3596 - 35 - LRB104 09762 BDA 19828 b
1248	1248	1 parties that have participated in the permit process if a
1249	1249	2 permit was granted, may seek judicial review of the Director's
1250	1250	3 decision under the Administrative Review Law.
1251	1251	4 Section 50. Investigation; enforcement.
1252	1252	5 (a) In accordance with constitutional limitations, the
1253	1253	6 Department shall have authority to enter at all reasonable
1254	1254	7 times upon any private or public lands for the purpose of
1255	1255	8 inspecting and investigating to ascertain compliance and
1256	1256	9 possible violations of this Act, implementing rules, or permit
1257	1257	10 terms or conditions.
1258	1258	11 (b) The civil penalties provided for in this Section may
1259	1259	12 be recovered in a civil action that may be instituted in a
1260	1260	13 court with jurisdiction over the place where the violation
1261	1261	14 occurred. The State's Attorney of the county in which the
1262	1262	15 alleged violation occurred, or the Attorney General may, at
1263	1263	16 the request of the Department or on the State's Attorney's or
1264	1264	17 Attorney General's own motion, institute a civil action in a
1265	1265	18 court of competent jurisdiction to recover civil penalties and
1266	1266	19 to obtain an injunction to restrain violations of this Act and
1267	1267	20 to compel compliance with this Act.
1268	1268	21 (c) Any person who violates any provision of this Act, any
1269	1269	22 rule adopted under this Act, any permit issued under this Act,
1270	1270	23 or any term or condition of a permit issued under this Act
1271	1271	24 shall be liable for a civil penalty not to exceed $10,000 per
1272	1272	25 day of violation. Any such penalty shall be made payable to the
1273	1273
1274	1274
1275	1275
1276	1276
1277	1277
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1279	1279
1280	1280
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1282	1282	HB3596 - 36 - LRB104 09762 BDA 19828 b
1283	1283	1 Wetlands Protection Fund and shall be deposited into that Fund
1284	1284	2 as provided in Section 60. In assessing a penalty, courts
1285	1285	3 shall consider any matters of record including:
1286	1286	4 (1) the duration and gravity of the violation;
1287	1287	5 (2) the presence or absence of due diligence on the
1288	1288	6 part of the violator in attempting to comply with the Act;
1289	1289	7 (3) any economic benefits accrued by the violator
1290	1290	8 through the violation;
1291	1291	9 (4) the likely deterrence effect of the penalty;
1292	1292	10 (5) any history on the part of the violator of past
1293	1293	11 violations of this Act; and
1294	1294	12 (6) a recommendation by the Department to limit or
1295	1295	13 waive penalties.
1296	1296	14 (d) All final orders imposing civil penalties under this
1297	1297	15 Section shall prescribe the deadline for payment. If such a
1298	1298	16 penalty is not paid within the time prescribed, interest on
1299	1299	17 the penalty shall be charged at the rate set forth in
1300	1300	18 subsection (a) of Section 1003 of the Illinois Income Tax Act
1301	1301	19 unless the deadline for payment is stayed by a court pending
1302	1302	20 appeal.
1303	1303	21 (e) The Department may terminate a permit if the permittee
1304	1304	22 violated the terms or conditions of the permit, obtained the
1305	1305	23 permit by misrepresentation, or failed to disclose relevant
1306	1306	24 facts.
1307	1307	25 (f) The Attorney General or State's Attorney of the county
1308	1308	26 where the affected wetland is located, may, upon his or her own
1309	1309
1310	1310
1311	1311
1312	1312
1313	1313
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1315	1315
1316	1316
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1318	1318	HB3596 - 37 - LRB104 09762 BDA 19828 b
1319	1319	1 motion or upon request of the Department, institute a civil
1320	1320	2 action in circuit court for an injunction or other appropriate
1321	1321	3 legal action to restrain a violation of this Act. In the
1322	1322	4 proceeding, the court shall determine whether a violation of
1323	1323	5 this Act has been committed, and shall enter any order it
1324	1324	6 considers necessary to remove the effects of the violation and
1325	1325	7 to prevent the violation from occurring, continuing or being
1326	1326	8 renewed in the future. An order may include a requirement that
1327	1327	9 the violator restore the affected wetland area, including a
1328	1328	10 provision that, if the violator does not comply by restoring
1329	1329	11 the wetland within a reasonable time, the Department may
1330	1330	12 restore the wetland to its condition prior to the violation
1331	1331	13 and the violator shall be liable to the Department for the cost
1332	1332	14 of the restoration. However, the Department retains the right
1333	1333	15 to act to remedy emergency situations, such as threats to
1334	1334	16 public safety, and the violator shall be liable to the
1335	1335	17 Department for the cost of the restoration.
1336	1336	18 (g) Any person, other than the Attorney General or the
1337	1337	19 State's Attorney, may file a complaint with the Illinois
1338	1338	20 Pollution Control Board against any person allegedly violating
1339	1339	21 this Act, any rule adopted under this Act, any permit issued
1340	1340	22 under this Act, or any term or condition of a permit issued
1341	1341	23 under this Act, or any relevant Board order. The Board shall
1342	1342	24 have authority to conduct proceedings upon complaints charging
1343	1343	25 such violations of this Act unless the Board determines that
1344	1344	26 such complaint is duplicative or frivolous. The Board may
1345	1345
1346	1346
1347	1347
1348	1348
1349	1349
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1351	1351
1352	1352
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1354	1354	HB3596 - 38 - LRB104 09762 BDA 19828 b
1355	1355	1 impose civil penalties for a violation of this Act as
1356	1356	2 described in subsection (c).
1357	1357	3 (h) Any penalty assessed under this Act, including costs
1358	1358	4 of wetland restoration and any restoration requirement, shall
1359	1359	5 be recorded by the clerk of the court as a lien against the
1360	1360	6 property and shall not be removed until the penalty is paid or
1361	1361	7 the restoration is completed.
1362	1362	8 (i) All costs, fees, and expenses in connection with an
1363	1363	9 enforcement or restoration action shall be assessed as damages
1364	1364	10 against the violator.
1365	1365	11 (j) Enforcement actions under this Section may be
1366	1366	12 concurrent or separate.
1367	1367	13 Section 55. County and special district authority.
1368	1368	14 (a) Nothing in this Act preempts or denies the right of any
1369	1369	15 governmental body with a stormwater management program under
1370	1370	16 Section 5-1062 of the Counties Code or a special district with
1371	1371	17 a stormwater program under Section 7h of the Metropolitan
1372	1372	18 Water Reclamation District Act from controlling or regulating
1373	1373	19 activities in any wetlands within the jurisdiction of the
1374	1374	20 governmental body.
1375	1375	21 (b) Upon the request of a governmental body with a
1376	1376	22 stormwater management program under Section 5-1062 of the
1377	1377	23 Counties Code or under Section 7h of the Metropolitan Water
1378	1378	24 Reclamation District Act, the Director shall, within 30
1379	1379	25 calendar days of receiving the written request or, in the case
1380	1380
1381	1381
1382	1382
1383	1383
1384	1384
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1386	1386
1387	1387
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1390	1390	1 of subsection (d), within 30 calendar days after the effective
1391	1391	2 date of this Act, provide a letter of recognition delegating
1392	1392	3 permitting authority under this Act to the county or special
1393	1393	4 district stormwater program. Subject to subsection (c), the
1394	1394	5 letter of recognition shall be provided if the governmental
1395	1395	6 body's stormwater management program:
1396	1396	7 (1) provides wetlands protections that are consistent
1397	1397	8 with the scope and intent of this Act and that are at least
1398	1398	9 as stringent as those in this Act;
1399	1399	10 (2) has an administration and qualified staff to
1400	1400	11 implement the governmental body's stormwater management
1401	1401	12 program; and
1402	1402	13 (3) is implementing and enforcing its stormwater
1403	1403	14 management program.
1404	1404	15 (c) Activities within or affecting wetlands that occur in
1405	1405	16 the jurisdiction of a governmental body with a stormwater
1406	1406	17 management program under Section 5-1062 of the Counties Code
1407	1407	18 or under Section 7h of the Metropolitan Water Reclamation
1408	1408	19 District Act and that meet the requirements of paragraphs (1),
1409	1409	20 (2), and (3) of subsection (b) of this Section are deemed to be
1410	1410	21 in compliance with the requirements of this Act, but must meet
1411	1411	22 those county or special district stormwater management
1412	1412	23 requirements, at a minimum. This also applies during the
1413	1413	24 period that the Department is considering a county's request
1414	1414	25 under subsection (b), but the requirements of this Act do
1415	1415	26 apply until the county has requested recognition under
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1426	1426	1 subsection (b).
1427	1427	2 (d) Lake, Cook, Kane, McHenry, and DuPage Counties and the
1428	1428	3 Metropolitan Water Reclamation District of Greater Chicago are
1429	1429	4 deemed to have requested recognition as of the effective date
1430	1430	5 of this Act, and their programs are deemed to meet the
1431	1431	6 requirements of paragraph (b) of this Section.
1432	1432	7 (e) The Director may rescind recognition status, or place
1433	1433	8 conditions on recognition status, for any county or special
1434	1434	9 district program as set out in administrative rule, if the
1435	1435	10 defect with regard to subsection (b) is not resolved. However,
1436	1436	11 notwithstanding any other provision of this Section, a county
1437	1437	12 or special district delegation will not be revoked or modified
1438	1438	13 if the local program remains at least as stringent as it was on
1439	1439	14 the effective date of this Act.
1440	1440	15 (f) A governmental body with a stormwater management
1441	1441	16 program under Section 5-1062 of the Counties Code or under
1442	1442	17 Section 7h of the Metropolitan Water Reclamation District Act
1443	1443	18 that has obtained recognition by the Director under this
1444	1444	19 Section shall submit an annual report to the Director.
1445	1445	20 (g) Nothing in this Act shall be construed as a limitation
1446	1446	21 or preemption of any home rule power.
1447	1447	22 (h) The Department may provide technical assistance and
1448	1448	23 grant funding under Section 60 to governmental bodies with
1449	1449	24 approved programs under this Section.
1450	1450	25 Section 60. Wetlands Protection Fund.
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1461	1461	1 (a) The Wetlands Protection Fund shall be established as a
1462	1462	2 special fund in the State treasury, to be managed by the
1463	1463	3 Department, separate and distinct from the General Revenue
1464	1464	4 Fund. Any interest earned by the Wetlands Protection Fund
1465	1465	5 shall be credited to the Fund. The purpose of the Wetlands
1466	1466	6 Protection Fund is to further wetlands and small streams
1467	1467	7 protection and management. Its purpose is to supplement, not
1468	1468	8 supplant, existing Department resources. The Wetlands
1469	1469	9 Protection Fund may not be used to pay for compensatory
1470	1470	10 mitigation obligations under this Act.
1471	1471	11 (b) Pursuant to Section 50, all penalties collected by the
1472	1472	12 Department under this Act shall be deposited into the Wetlands
1473	1473	13 Protection Fund.
1474	1474	14 (c) The Illinois General Assembly may appropriate
1475	1475	15 additional moneys to the Wetlands Protection Fund to implement
1476	1476	16 this Act.
1477	1477	17 (d) The Department shall use the moneys in the Wetlands
1478	1478	18 Protection Fund to further wetlands and small streams
1479	1479	19 protection and management. Eligible uses of moneys in the Fund
1480	1480	20 include:
1481	1481	21 (1) providing technical assistance and grant funding
1482	1482	22 to counties or special districts with approved programs
1483	1483	23 under Section 55 to restore, preserve, enhance, protect,
1484	1484	24 or maintain wetlands, streams, and upland buffers,
1485	1485	25 particularly Class I areas or wetlands, waters, and
1486	1486	26 buffers that provide floodwater storage and flood risk
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1497	1497	1 reduction;
1498	1498	2 (2) supplementing other State, local, or private
1499	1499	3 funding for non-compensatory wetlands and small streams
1500	1500	4 restoration, enhancement, preservation and maintenance;
1501	1501	5 (3) providing matching funds for wetland and stream
1502	1502	6 inventories, mapping, watershed planning and wetland
1503	1503	7 program development grants; and
1504	1504	8 (4) covering staffing, administrative, and enforcement
1505	1505	9 costs for the Department to implement this Act.
1506	1506	10 Section 65. Review fee. All inquiries to determine whether
1507	1507	11 or not the proposed activity requires permit authorization by
1508	1508	12 the Department under this Act will be reviewed by the
1509	1509	13 Department free of charge. A permit review fee that is to be
1510	1510	14 set by the Department by rule is required for all permit
1511	1511	15 applications under this Act. The Department shall establish a
1512	1512	16 graduated review fee payment schedule depending on the
1513	1513	17 intensity of required review and the size of the individual
1514	1514	18 project. Accordingly, the highest review fees will be charged
1515	1515	19 for individual permits to authorize major projects. The
1516	1516	20 Department may, by rule, impose a reasonable fee for wetlands
1517	1517	21 delineation and classification.
1518	1518	22 Section 90. The State Finance Act is amended by adding
1519	1519	23 Section 5.1030 as follows:
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1530	1530	1 (30 ILCS 105/5.1030 new)
1531	1531	2 Sec. 5.1030. The Wetlands Protection Fund.
1532	1532	3 Section 97. Severability. The provisions of this Act are
1533	1533	4 severable under Section 1.31 of the Statute on Statutes.".
1534	1534	5 Section 99. Effective date. This Act takes effect upon
1535	1535	6 becoming law.
1536	1536	HB3596- 44 -LRB104 09762 BDA 19828 b 1 INDEX 2 Statutes amended in order of appearance HB3596- 44 -LRB104 09762 BDA 19828 b HB3596 - 44 - LRB104 09762 BDA 19828 b 1 INDEX 2 Statutes amended in order of appearance
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1538	1538	HB3596 - 44 - LRB104 09762 BDA 19828 b
1539	1539	1 INDEX
1540	1540	2 Statutes amended in order of appearance
1541	1541
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1552	1552	1 INDEX
1553	1553	2 Statutes amended in order of appearance
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