Ali Nelson, Senior Counsel, was featured in Rock Products October edition discussing the litigation surrounding the regulatory definition of ‘Waters of the United States’ and the recent court decisions leading to the application of different definitions in different states.
Since 2001, Wisconsin law has required a permit to discharge fill into wetlands that do not fall under federal jurisdiction (“nonfederal wetlands”). Of the approximately five million acres of wetlands in Wisconsin, an estimated 10 to 30 percent are nonfederal wetlands.
State lawmakers held hearings on December 21 on proposed legislation, AB547/SB600, which would exempt nonfederal and artificial wetlands from the state wetland permitting requirements administered by the Department of Natural Resources (“DNR”). The bill would still require a developer to mitigate the nonfederal wetland loss by creating a minimum of 1.2 acres of wetlands for every acre filled, but a permit would no longer be required.
The proposed bill also authorizes the DNR to apply to the U.S. Environmental Protection Agency (EPA) for delegation of permitting authority for federal wetlands within Wisconsin. If EPA approves the application, the DNR become the permitting authority for fill in federal wetlands instead of the U.S. Army Corps of Engineers.
Proponents of the legislation argue that the existing nonfederal wetland permit program often protects low-value wetlands and stands in the way of development projects. Opponents argue that the existing program is necessary given the uncertainty of the definition of federal wetlands; that nonfederal and artificial wetlands provide valuable ecosystem services such as flood control and water quality protection; and that mitigation attempts often fail or do not create the same benefits as the fill wetland.
Legislative action on the bill is expected when the legislature returns to session in January 2018.