Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB254 Compare Versions

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

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 254
5	5	May 8, 2023 - Introduced by Representatives MURSAU, BEHNKE, S. JOHNSON,
6	6	KITCHENS, O'CONNOR and STEFFEN, cosponsored by Senators COWLES and
7	7	BALLWEG. Referred to Committee on Environment.
8	8	*AUTHORS SUBJECT TO CHANGE*
9	9	AN ACT to amend 15.347 (22) (b) 9. and 23.321 (5) (a); and to create 23.321 (2d)
10	10	of the statutes; relating to: a wetland assured delineation program, extending
11	11	the time limit for emergency rule procedures, providing an exemption from
12	12	emergency rule procedures, and granting rule-making authority.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill directs the Department of Natural Resources to establish a wetland
15	15	assured delineation program.
16	16	Current law generally prohibits the discharge of dredged or fill material into
17	17	a wetland unless a person is issued a wetland general permit or individual permit
18	18	by DNR. Under current law, a person who owns or leases land may use the following
19	19	methods to delineate the boundaries of a wetland in a manner recognized by DNR:
20	20	1) the person may request that DNR provide a wetland identification to determine
21	21	if wetlands are located on a parcel, or part of a parcel, that does not exceed five acres;
22	22	2) the person may have a third person prepare a wetland delineation and request
23	23	that DNR confirm the boundaries of the wetland as delineated by that third person,
24	24	based on DNR's on-site inspection of the land; or 3) with respect to nonfederal
25	25	wetlands, the person may have a qualified third person perform a wetland
26	26	identification delineating the boundaries of a wetland and request DNR to confirm
27	27	those boundaries, not based upon an on-site inspection of the land but rather based
28	28	on a review of maps, aerial photographs, surveys, wetland delineations, and
29	29	hydrophytic soil conditions. Under current law, nonfederal wetlands are wetlands
30	30	that are not under the jurisdiction of the federal government, and a qualified third
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37	37	person is an individual who has completed basic and advanced wetland training and
38	38	has a minimum of one year of field experience in wetland delineation.
39	39	The bill adds a wetland assured delineation program as a fourth method for
40	40	delineating the boundaries of a wetland in a manner recognized by DNR. Under the
41	41	program, a person may apply to DNR to be certified as an assured delineator. A
42	42	wetland delineation prepared by an assured delineator has the same effect as a
43	43	wetland identification or confirmation prepared by DNR, and a wetland delineation
44	44	prepared by an assured delineator need not be confirmed by DNR. Under the bill,
45	45	DNR must charge a $1,200 annual certification fee to an assured delineator, must
46	46	require a report of each wetland delineation an assured delineator prepares, and
47	47	may charge a filing fee not to exceed $20 for each report submitted. The bill provides
48	48	that a wetland delineation prepared by an assured delineator is effective for five
49	49	years from the date upon which the wetland delineation report is submitted to DNR.
50	50	This matches the effective period for wetland identifications and confirmations of
51	51	federal wetlands provided by DNR under current law.
52	52	The bill requires DNR to establish application and qualification requirements
53	53	for assured delineator certification but includes some minimum requirements, such
54	54	as at least five years of full-time professional field experience in wetland delineation
55	55	and completion of a wetland delineation training course based on the U.S. Army
56	56	Corps of Engineers wetland delineation manual. The bill also requires DNR to
57	57	charge an application processing fee of $500. The bill provides that an applicant
58	58	whose application is not approved may reapply and requires DNR to accept
59	59	applications no less than annually and at least during the period beginning
60	60	September 15 and ending November 30 for applicants who wish to be certified
61	61	beginning on March 15 of the next calendar year.
62	62	The bill requires DNR to review the performance of assured delineators on a
63	63	recurring basis and authorizes DNR to perform in-field audits of specific wetland
64	64	delineations performed by assured delineators. The bill allows DNR to investigate
65	65	any person's complaint that an assured delineator may be violating program
66	66	requirements. The bill allows DNR to gather—or to require a permit holder or
67	67	applicant to provide—additional wetland delineation data if DNR receives a
68	68	complaint alleging inaccuracies in a wetland delineation completed by an assured
69	69	delineator or if DNR finds inaccuracies in a wetland delineation report. If the
70	70	additional data show substantial evidence that a wetland delineation is inaccurate,
71	71	the bill allows DNR to use the data for regulatory decision-making, including
72	72	wetland permitting and exemption decisions. However, under the bill DNR may not
73	73	modify a permit or exemption decision solely on the basis of this additional data.
74	74	The bill allows DNR to revoke a person's certification as an assured delineator
75	75	if it finds the person did any of a list of actions, for example knowingly falsifying or
76	76	misrepresenting a wetland boundary. Under the bill, a person whose assured
77	77	delineator certification has been revoked is entitled to a contested case hearing.
78	78	Under the bill, DNR must consider a person who is approved or certified as an
79	79	assured delineator under an existing pilot program as certified as an assured
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84	84	For further information see the state fiscal estimate, which will be printed as
85	85	an appendix to this bill.
86	86	The people of the state of Wisconsin, represented in senate and assembly, do
87	87	enact as follows:
88	88	SECTION 1. 15.347 (22) (b) 9. of the statutes is amended to read:
89	89	15.347 (22) (b) 9. The possibility of a professional, whose wetland delineation
90	90	work is assured under the department of natural resources' wetland delineation
91	91	professional assurance initiative, performing a wetland delineation confirmation
92	92	requirements for certification as an assured delineator and other matters related to
93	93	the wetland assured delineator program under s. 23.321 on behalf of the department
94	94	(2d).
95	95	SECTION 2. 23.321 (2d) of the statutes is created to read:
96	96	23.321 (2d) WETLAND ASSURED DELINEATION PROGRAM. (a) Definition. In this
97	97	subsection, “assured delineator” means a professional wetland delineator who is
98	98	certified by the department under par. (c).
99	99	(b) Program. 1. The department shall establish a wetland assured delineation
100	100	program under which individuals may apply to the department to be certified as
101	101	assured delineators. Under the program, the department shall ensure that assured
102	102	delineators delineate wetlands consistent with the wetlands delineation manual
103	103	described under s. 281.36 (2m). The department may promulgate rules to implement
104	104	this subsection.
105	105	2. Under the program, a wetland delineation prepared by an assured delineator
106	106	has the same effect as a wetland identification or confirmation prepared by the
107	107	department under sub. (2) (b) to (d). A wetland delineation performed by an assured
108	108	delineator is not required to be confirmed by the department under sub. (2) (c) or (d).
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132	132	3. The department shall require an assured delineator to submit to the
133	133	department a report of each wetland delineation the assured delineator prepares,
134	134	including all items required in applicable joint guidance from the U.S. army corps
135	135	of engineers and the department. The report is due no later than a date determined
136	136	by the department that allows sufficient time for the department's regulatory
137	137	decision-making or March 15, whichever is sooner following the date on which the
138	138	delineation is completed, unless an extension is approved by the department.
139	139	4. Under the program, assured delineators shall conduct assured wetland
140	140	delineations during the growing season. The growing season shall be determined in
141	141	accordance with the wetlands delineation manual described under s. 281.36 (2m)
142	142	and applicable supplements.
143	143	(c) Application. 1. A professional wetland delineator seeking to become
144	144	certified as an assured delineator shall submit a complete application and shall
145	145	follow the application procedures specified by the department.
146	146	2. The department shall, in consultation with the wetland study council,
147	147	determine what must be submitted by an applicant to constitute a complete
148	148	application. Once established, the department shall make those requirements
149	149	available on the department's website. The department may not determine an
150	150	application to be complete without submission of the application fee under par. (e)
151	151	1. a.
152	152	3. The department shall establish application and qualification requirements
153	153	for certification as an assured delineator, including at least all of the following:
154	154	a. At least 5 years of full-time professional field experience in wetland
155	155	delineation.
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184	184	b. Completion of minimum educational requirements or requirements for
185	185	commensurate experience, as determined by the department in consultation with
186	186	the wetland study council.
187	187	c. Completion of a wetland delineation training course based on the wetlands
188	188	delineation manual described under s. 281.36 (2m) and applicable regional
189	189	supplements for this state.
190	190	d. Submittal of at least 6 representative wetland delineation reports completed
191	191	within the 2 growing seasons preceding the date on which the application was
192	192	submitted.
193	193	e. Demonstration that the applicant can complete delineations and submit
194	194	them in compliance with program expectations as established by the department.
195	195	f. Other application and qualification requirements specified by the
196	196	department to ensure that the applicant is achieving the technical standards of the
197	197	program.
198	198	4. Status as an assured delineator is valid unless revoked under par. (d).
199	199	5. If the department determines that the applicant does not meet the minimum
200	200	qualifications to be approved as an assured delineator, the applicant may reapply in
201	201	a future application process.
202	202	6. The department shall accept applications no less than annually and at least
203	203	during the period beginning September 15 and ending November 30 for applicants
204	204	who wish to be certified beginning on March 15 of the next calendar year.
205	205	7. The department may consider previous conduct and performance in scoring
206	206	a subsequent application for an applicant whose prior certification under the
207	207	program was revoked under par. (d). The department may not approve an
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234	234	application if the applicant's certification was revoked within 3 years of the
235	235	application date.
236	236	(d) Performance review, auditing, and revocation. 1. The department shall
237	237	review the performance of assured delineators on a recurring basis to ensure the
238	238	program standards and expectations are being met. As part of this review process,
239	239	the department may perform in-field audits of specific wetland delineations that
240	240	assured delineators have performed.
241	241	2. Upon a complaint submitted by any person to the department that an
242	242	assured delineator may be out of compliance with program requirements, the
243	243	department may investigate and gather information to determine if a violation of
244	244	program requirements has occurred.
245	245	3. The department may gather, or require a permit holder or applicant to
246	246	provide, additional wetland delineation data if a complaint is filed with the
247	247	department alleging inaccuracies in a wetland delineation completed by an assured
248	248	delineator or if the department finds inaccuracies in a report submitted under par.
249	249	(b) 3. If the additional data show substantial evidence that a wetland delineation is
250	250	inaccurate, this additional data may be used for regulatory decision-making,
251	251	including permitting and exemption decisions under s. 281.36. The department may
252	252	not modify a permit or exemption decision solely on the basis of additional data
253	253	gathered under this subdivision.
254	254	4. The department shall give notice to an assured delineator if the department
255	255	conducts an audit under subd. 1. or an investigation under subd. 2. or 3.
256	256	5. The department may revoke an individual's certification as an assured
257	257	delineator by providing to the individual written notice of the revocation and the
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286	286	reason for the revocation if it finds the individual did any of the following, taking into
287	287	consideration the type and frequency of infractions:
288	288	a. Knowingly took part in an activity that results in the violation of state or
289	289	federal wetland or waterway laws or regulations.
290	290	b. Knowingly falsified or misrepresented a wetland boundary.
291	291	c. Failed to delineate all wetland resources within a wetland delineation study
292	292	area.
293	293	d. Misrepresented another's work as his or her own.
294	294	e. Injured the reputation of another professional wetland delineator through
295	295	undocumented claims.
296	296	f. Failed to apply standard wetland delineation protocols in line with the
297	297	wetlands delineation manual described under s. 281.36 (2m) and applicable regional
298	298	supplements for this state.
299	299	g. Failed to implement the current state of the science, including techniques,
300	300	methods, and accurate reporting protocols.
301	301	h. Failed to meet continuing education expectations as set by the department.
302	302	i. Failed to submit an average of at least 3 delineation reports annually over
303	303	the prior 3 years, unless an exception is made by the department for extenuating
304	304	circumstances.
305	305	j. Failed to submit the annual certification fee under par. (e) 2. on or before
306	306	March 15 unless the department has granted an extension.
307	307	k. Failed to comply with any other program requirement established by the
308	308	department by rule.
309	309	6. Any individual who receives notice under subd. 5. that his or her certification
310	310	as an assured delineator has been revoked is entitled to a contested case hearing
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338	338	under ch. 227 if the individual requests the hearing within 30 days after receiving
339	339	the notice.
340	340	7. An individual whose certification as an assured delineator is revoked is not
341	341	precluded from delineating wetlands under sub. (2) (c) or (d).
342	342	(e) Fees. 1. Except as provided under subd. 3., the department shall charge the
343	343	following fees:
344	344	a. To an applicant under par. (c), an application processing fee of $500 to be
345	345	submitted with an application.
346	346	b. To an assured delineator, an annual certification fee of $1,200.
347	347	2. Except as provided under subd. 3., the department may charge an assured
348	348	delineator a filing fee of $20 for each report submitted under par. (b) 3.
349	349	3. The department may promulgate rules to increase the fees specified in subds.
350	350	1. and 2. only if the increase is necessary to meet the costs of the department in
351	351	performing the activities for which the fee is charged.
352	352	SECTION 3. 23.321 (5) (a) of the statutes is amended to read:
353	353	23.321 (5) (a) Except as provided in par. (b), a wetland identification provided
354	354	by the department under sub. (2) (b) and a wetland confirmation provided by the
355	355	department under sub. (2) (c) remain effective for 5 years from the date provided by
356	356	the department. A wetland delineation prepared by an assured delineator under
357	357	sub. (2d) remains effective for 5 years from the date upon which the wetland
358	358	delineation report under sub. (2d) (b) 3. is submitted to the department.
359	359	SECTION 4.0Nonstatutory provisions.
360	360	(1) The department of natural resources shall consider an individual who is
361	361	approved or certified as an assured delineator under a pilot program in effect on the
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390	390	effective date of this subsection to be certified as an assured delineator under s.
391	391	23.321 (2d).
392	392	(2) Using the procedure under s. 227.24, the department of natural resources
393	393	may promulgate rules authorized under s. 23.321 (2d) (b) 1. for the period before the
394	394	effective date of any permanent rules promulgated under s. 23.321 (2d) (b) 1.
395	395	Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this
396	396	subsection remain in effect until January 1, 2025, or the date on which permanent
397	397	rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a), (2) (b), and
398	398	(3), the department is not required to provide evidence that promulgating a rule
399	399	under this subsection as an emergency rule is necessary for the preservation of the
400	400	public peace, health, safety, or welfare and is not required to provide a finding of
401	401	emergency for a rule promulgated under this subsection.
402	402	SECTION 5.0Initial applicability.
403	403	(1) (a) Except as provided in par. (b), this act first applies to an individual who
404	404	submits an application under s. 23.321 (2d) (c) on the effective date of this subsection.
405	405	(b) Except for the initial application requirements under s. 23.321 (2d) (c), the
406	406	remainder of this act first applies to individuals described under SECTION 4 (1) on the
407	407	effective date of this subsection.
408	408	(END)
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