Overview:
Wisconsin law requires state review and approval of construction activities in all wetlands, regardless of size, location or wetland type. The Wisconsin Department of Natural Resources (WDNR) administers the wetland regulatory program. The Wisconsin Department of Justice provides assistance with the investigation and enforcement of wetland violations.
The Wisconsin Natural Resources Board (NR Board) sets policy for the Department of Natural Resources. Their wetland policy can be found in administrative rule NR 1.95(4) which states:
NR 1.95 also establishes that actions over which the department has regulatory or management authority shall be applied in such a manner as to avoid or minimize the adverse effects on wetlands, and to maintain, enhance and restore wetland functions and values.
Though Wisconsin’s wetland regulatory program differs from the federal program in several substantial ways (see WI permit review process below) it also integrates with and builds upon the wetland oversight authorized under the Federal Clean Water Act (CWA). For example:
Wisconsin Permit Review Process:
For the most part, Wisconsin’s wetland regulatory review process emulates the process established under the federal CWA. Key similarities include:
- The excavation of soil or placement of fill in wetlands requires a WDNR approval known as a water quality certification (i.e., a permit).
- Developers must consider alternatives to avoid and minimize wetland impacts.
- WDNR may not approve projects that would impose a significant adverse impact on wetland functions or values.
Major differences between the Wisconsin and federal wetland regulatory review processes include:
- Wisconsin regulates construction activities in ALL wetlands, including "isolated" wetlands (i.e., those not adjacent to, or with a hydrologic connection to, federally regulated navigable waters).
- Compensatory mitigation is not required for all wetland fills, but may be considered in the evaluation of project impacts under some circumstances (For more information click on Wisconsin Compensatory Mitigation below).
- Wisconsin law does not require the WDNR to provide public notice and comment periods prior issuing permits (see Public Input on WDNR Permit Review below).
Though Wisconsin follows essentially one process for reviewing applications to fill wetlands, the authority to review applications for wetland development projects falls under two sections of state law:
- Review of applications for the discharge of dredged and fill material to federally regulated wetlands: Section 401 of the Clean Water Act provides states with the authority to certify federal wetland permitting decisions to ensure that approved projects comply with state water quality standards. States have the authority to grant, grant with conditions, or deny certification of federal permits. Wisconsin’s process for certifying federal wetland regulatory decisions is outlined in Administrative rule NR 299, Water Quality Certification.
- Review of applications for the discharge of dredged and fill material to nonfederal (i.e., isolated) wetlands: Wisconsin Act 6 (2001) extended Wisconsin’s water quality certification authority to include oversight of discharges into nonfederal wetlands. A description of this authority can be found in Chapter 281.36 of Wisconsin State Law.
Water Quality Certification:
Both NR 299 and Chapter 281.36 outline criteria for water quality certification approvals including:
- Descriptions of the information that must be included in an application,
- Timelines and obligations for WDNR’s review and response, and
- Instructions for requesting a contested case hearing (e.g., review by an administrative law judge) of a WDNR decision.
NR 299 and Chapter 281.36 also require the state to deny water quality certification of projects that fail to comply with the water quality standards for wetlands outlined in NR 103.
Water Quality Standards for Wetlands:
Wisconsin’s water quality standards for wetlands (NR 103) describes the water quality related functional values and uses of wetlands that must be maintained in order to "protect, preserve, restore and enhance the quality of waters in wetlands and other waters of the state influenced by wetlands" (NR 103.03).*
Wetland functional values protected under NR 103 include:
- Storm and flood water storage
- Maintenance of hydrologic cycles
- Filtration and storage of sediments, nutrients and toxic substances
- Shoreline protection against erosion
- Habitat for aquatic organisms
- Habitat for resident and transient wildlife
- Recreational, cultural, educational, scientific and natural scenic beauty values and uses
NR 103 goes on to describe:
The criteria used to ensure the maintenance or enhancement of protected wetland functional values, and
Implementing procedures for how to review projects for NR 103 compliance.
Click here to view a flowchart describing the NR 103 decision process.
* For more information on wetland functional values and how to assess the functional values of your wetland, click on "Gathering Information About Your Wetland" on the menu above.
Public Input on WDNR Wetland Permit Review:
State law does not require public comment on wetland water quality certification decisions. However, WDNR always welcomes timely and reliable input to inform their decision-making. Insights on the alternatives analysis, information about the quality of the wetlands to be impacted, and descriptions of how the project will degrade wetland or watershed functions may be particularly useful. Though rarely exercised, WDNR does have the discretion to hold public hearings on controversial projects.
Because WDNR review includes consideration of the public’s interest in public waterways, citizen advocates should not hesitate to voice concerns or to request information on the status of a permit review. Though the review process relies most heavily on the alternatives analysis and assessment of impacts to wetland functions and water quality, politics does creep into the process. Organized community support or opposition efforts can, therefore, influence project outcomes.
For more information on crafting effective comment letters and public testimony or organizing to prevent wetland losses, click on "Wetland Protection Strategies" on the menu above.
Comments and questions on wetland permit reviews should be directed to your local WDNR Water Management Specialist (WMS). In addition to handling the review and approval of wetland permit applications, your local WMS will monitor wetland development projects for compliance with permit conditions, and assist with investigations and enforcement proceedings for unauthorized wetland fill.
Click here for contact information for the WMS in your county.
Click here for links to other Wisconsin wetland statutes and rules.
> Click here to continue to the discussion of Wetland Mitigation.
