SECTION 1. TITLE

This Act shall be called the Wetlands Protection Act



SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS�The legislature finds that:

1. In a 5-4 decision the Supreme Court ruled against federal jurisdiction over intrastate, isolated wetlands that do not have a direct connection to navigable waterways such as lakes, rivers or streams. Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers, 531 U.S. 159, (2001).

2. The U.S. Environmental Protection Agency estimates that at least 20 percent, and possibly more than 50 percent, of existing wetlands�wet meadows, forested wetlands, ephemeral ponds, and bogs�fit that description and are now unprotected.

3. The state needs to plug this legal loophole, or hundreds of thousands of acres of wetlands will be lost forever. Once destroyed, it is difficult or impossible to fully restore wetlands or create new wetlands.

4. Wetlands serve a number of critical roles in the maintenance and protection of the environment, and ultimately, public health. The state cannot afford to lose its isolated wetlands.

( PURPOSE�This law is enacted to protect the state�s environment, and protect public health and welfare.



SECTION 3. WETLANDS PROTECTIONS



(A) DEFINITIONS�For purposes of this chapter:

1. "Creation" means the establishment of a wetland where one did not formerly exist and that involves wetland construction on nonhydric soils.

2. "Department" means [Department of Natural Resources].

3. "Enhancement" means activities conducted in an existing wetland to improve or repair its existing or natural wetland functions and values.

4. "Fill material"means any material free of toxic contaminants, other than trace amounts, used to fill an aquatic area, replace an aquatic area with dry land, or change the bottom elevation of a wetland for any purpose. "Fill material" does not include:

a. Material resulting from normal farming, silviculture, and ranching activities, such as plowing, cultivating, seeding and harvesting for the production of food, fiber and forest products.

b. Material used to maintain existing structures, including emergency reconstruction of recently damaged parts of serviceable structures such as dikes, dams, levees, breakwaters, causeways and bridge abutments or approaches, and transportation structures.

5. "Filling" means the addition of fill material into a wetland for the purpose of creating an upland, changing the bottom elevation of the wetland, or creating impoundments of water.

6. "Function" means properties of wetlands that provide ecological or economic benefits including but not limited to flood flow alteration, groundwater recharge, groundwater discharge, sediment and toxicant retention, nutrient removal or transformation, wildlife and aquatic diversity and abundance, uniqueness, historical, and recreational value. These functions can be evaluated using the Wetland Evaluation Technique developed by the U.S. Army Corps of Engineers or a similar technique developed by the Department.

7. "Isolated wetlands" means wetlands that:

a. Are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions and possess hydrophytic vegetation, hydric soils, and wetland hydrology.

b. Do not have a surface water connection to U.S. navigable waterways or as otherwise defined by the U.S. Army Corps of Engineers.

c. Are delineated in accordance with current delineation specifications of the U.S. Army Corps of Engineers.

d. Includes, but are not limited to marshes, bogs, fens, and isolated ponds.

8. "Isolated wetland permit" means a permit obtained from the Department to engage in a regulated activity in an isolated wetland.

9. "Mitigation" means applying the following actions in order of acceptability and preference to the department:

a. Avoiding an adverse impact.

b. Where adverse impacts cannot be avoided, minimizing an adverse impact.

c. Where adverse impacts cannot be avoided or minimized, rectifying an adverse impact by repairing, rehabilitating, or restoring the affected environment.

d. Where adverse impacts cannot be avoided, minimized, or rectified, compensating for the adverse impact by replacing or providing substitute resources or environments of equal or greater quality and functions.

10. "Mitigation bank service area" means the designated area where a mitigation bank provides appropriate compensation for impacts to wetlands and other aquatic resources and that is designated as such in accordance with the process established in the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (1995), 60 FR 58605.

11. "Off-site mitigation" means wetland restoration, creation, enhancement or preservation occurring farther than one mile from a project boundary, but within the same watershed.

12. "On-site mitigation" means wetland restoration, creation, enhancement or preservation occurring within and not more than one mile from the project boundary, and within the same watershed.

13. "Person" means an individual, firm, partnership, association, public or private institution, municipality, or political subdivision, federal or state governmental agency, or private or public corporation organized.

14. "Practicable" means available and capable of being executed with existing technology and without significant adverse effect on the economic feasibility of the project in light of the overall project purposes and in consideration of the relative environmental benefit. The Department shall have the final determination as to what measures are practicable.

15. "Preservation" means the protection of ecologically important wetlands in perpetuity through the implementation of appropriate legal mechanisms to prevent harm to the wetlands. "Preservation" may include protection of adjacent upland areas as necessary to ensure protection of a wetland.

16. "Restoration" means the reestablishment of a previously existing wetland at a site where it has ceased to exist.

17. "Watershed" means a common surface drainage area corresponding to [cite state watershed definition]. "Watershed" is limited to those parts of the cataloging units that geographically lie within the borders of this state.

18. "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration that are sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. "Wetlands" includesswamps, marshes, bogs, and similar areas that are delineated in accordance with the 1987 U.S. Army Corps of Engineers.

19. "Wetland mitigation bank" means a site where wetlands have been restored, created, enhanced or, in exceptional circumstances, preserved expressly for the purpose of providing mitigation for impacts to wetlands and that has been approved in accordance with the process established in the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (1995), 60 FR 58605.

( PERMITTING GUIDELINES

1. A proposed filling of an isolated wetland shall require an isolated wetland permit and be subject to review requirements established under this section.

2. A review shall require the submission of a pre-activity notice that includes an application containing an acceptable wetland delineation, a wetland categorization, a description of the project, a description of the acreage of the isolated wetland that will be subject to filling, site photographs, and a mitigation proposal for the impact to the isolated wetland.

3. The applicant shall conduct mitigation for the proposed filling of an isolated wetland that is subject to review. With the approval of the director, the applicant shall conduct either on site mitigation, mitigation at a wetland mitigation bank within the same U.S. Army Corps of Engineers district as the location of the proposed filling of the isolated wetland, or off-site mitigation.

4. A person that has submitted the pre-activity shall complete the filling within two years after the end of the 30-day period following the receipt of the pre-activity notice by the Department. If the filling is not completed within that two-year period, the person shall submit a new pre-activity notice.

� PERMITS

1. A review for an isolated wetland permit shall require:

a. All of the information required to be submitted with a pre-activity notice.

b. A full antidegradation review conducted in accordance with rules adopted under [cite state�s antidegradation section].

c. The submission of information indicating whether high quality waters, as defined in [cite state high quality waters definition], are to be avoided by the proposed filling of the isolated wetland.

2. The Department shall issue or deny an isolated wetland permit not later than 180 days after the receipt of an application for the permit. The Department shall not issue an isolated wetland permit unless the applicant has demonstrated that the proposed filling will not prevent or interfere with the attainment or maintenance of applicable state water quality standards.

3. a. The Department may deny an isolated wetland permit if the Department determines that the proposed filling of the isolated wetland will result in an adverse short-term or long-term impact on water quality.

b. The Department may impose any practicable terms and conditions on an isolated wetland permit to ensure adequate protection of state water quality.

c. Prior to the issuance of an isolated wetland permit, or prior to, during, or after the filling of the isolated wetland subject of the permit, the Department may require the applicant perform various environmental quality tests, including, without limitation, chemical analyses of water, to sediment, or fill material and bioassays, in order to ensure adequate protection of water quality.

4. Mitigation for the proposed filling of an isolated wetland that is subject to review shall occur in the following order:

a. Practicable on-site mitigation.

b. Reasonably identifiable, available, and practicable off-site mitigation within the same watershed.

c. If the proposed filling of the isolated wetland will take place within a mitigation bank service area, within that mitigation bank service area. If there is a significant ecological reason that the mitigation location should not be limited to the watershed in which the isolated wetland is located and if the proposed mitigation will result in a substantially greater ecological benefit, in a watershed that is adjacent to the watershed in which the isolated wetland is located.

(D) WETLANDS MIGRATION BANKS

1. The Department, in consultation with the Director of Environmental Protection, shall establish a list of approved wetlands mitigation banks. In establishing the list, Department shall give preference to wetlands mitigation banks that are comprised of areas involving the restoration of previously existing wetlands. The list established under this division shall not exclude state or local agencies from developing wetlands mitigation banks.

2. The Department may establish and operate a wetlands mitigation bank for use by any individual or entity, including any state agency or department, for mitigation purposes in accordance with this chapter.

3. The Director of Environmental Protection shall issue an annual report to the general legislature on the total acreage of isolated wetlands that were subject to filling during the preceding year and the total acreage of isolated wetlands restored, created, enhanced or preserved through mitigation that same year as a result of isolated wetland permits.

(E) PERMIT REVIEW

1.a. The Director of Environmental Protection shall prescribe the form of the application for an isolated wetland permit.
b. The Director of Environmental Protection shall provide an explanation to an isolated wetland permit applicant for the proposed denial of the application.

2. Within 15 business days after the receipt of an application, the Director of Environmental Protection shall notify the applicant if the application is complete. If the application is not complete, the director shall include in the notice an itemized list of the information or materials that are necessary to complete the application. Time periods specified in this chapter shall not apply until the application is determined by the Director of Environmental Protection to be complete. If the applicant fails to provide information or materials that are necessary to complete the application within 60 days after the receipt of the application, the Director of Environmental Protection may return the incomplete application to the applicant and take no further action on the application.

3. Except as provided in paragraph 4 of this section, the Director of Environmental Protection shall publish notice of the receipt of a complete application in a newspaper of general circulation in the county housing the isolated wetland proposed to be filled. The Director of Environmental Protection shall accept comments concerning the application and requests for a public hearing concerning the application for not more than 30 days following the publication of notice.

4. If a public hearing is requested during the 30-day comment period and the Director of Environmental Protection determines there is significant public interest, the Department of Environmental Protection shall conduct a public hearing concerning the application. Notice of the public hearing shall be published not later than 30 days prior to the date of the hearing in a newspaper of general circulation in the county in which the proposed filling of the isolated wetland that is the subject of the application is to take place. If a public hearing is requested concerning an application, the Department of Environmental Protection shall accept comments concerning the application until 15 business days after the public hearing. A public hearing conducted under this division shall take place not later than 90 days after the Director of Environmental Protection notifies the applicant that their application is complete.

(F) MITIGATION

1. The Department is authorized to require mitigation for impacts to isolated wetlands to replace or compensate for the long and short term economic, environmental, and natural resource benefits that would be lost by the proposed regulated activity.

2. Mitigation for impacts to isolated wetlands shall be conducted in accordance with the following ratios:

a. For isolated wetlands, other than forested isolated wetlands, mitigation located at an approved wetland mitigation bank shall be conducted at a rate of two times the size of the isolated wetland area being impacted.

b. For forested isolated wetlands, mitigation located at an approved wetland mitigation bank shall be conducted at a rate of two and one-half times the size of the isolated wetland area being impacted.

3. Mitigation that involves the enhancement or preservation of existing isolated wetlands shall be calculated and performed in accordance with existing state and federal laws and regulations for wetlands.

4. An applicant shall demonstrate that the mitigation site will be protected in perpetuity and that appropriate practicable management measures are, or will be, in place to restrict harmful activities that jeopardize the mitigation.

(G) EXEMPTIONS.

1. The requirement for an isolated wetlands permit does not apply to any discharge that is the result of any of the following activities�

a. Normal farming, silviculture or ranching activities.

b. Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in the waters of the state.

c. Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.

d. Maintenance of drainage ditches.

e. Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the Department, to ensure all of the following:

(1) That the flow and circulation patterns and chemical and biological characteristics of the affected wetland are not impaired.

(2) That the reach of the affected wetland is not reduced.

(3) That any adverse effect on the aquatic environment of the affected wetland is minimized to the degree required by the department.

2. Notwithstanding, a discharge that would be exempt under Section (G)(1) is subject to the permit requirement if the discharge is incidental to any of the following activities:

a. An activity that has as its purpose bringing a wetland, or part of a wetland, into a use for which it was not previously subject.

b. An activity that may impair the flow or circulation of any waters of the state.

c. An activity that may reduce the reach of any waters of the state.

(H) FEES.

1. The Department is authorized to enforce a fee schedule for the isolated wetlands program. The amount of fees collected annually must not exceed the cost of operating the wetlands permitting program. The fees may be retained and expended to operate this program.

2. Isolated wetland permit application fees shall cost $200, review fees shall cost $500 per acre of wetlands to be impacted, and fees must be paid when applications are submitted. However, the review fee shall not exceed $5000 per application. In addition, if an application is denied, the Director of Environmental Protection shall refund to the applicant half the amount of the review fee paid by the applicant.

3. If a person conducts any activities for which an isolated wetland permit is required under this chapter without first obtaining such a permit, in addition to penalties outlined in Section (J), the person shall pay twice the amount of the application and review fees that the person otherwise would have been required to pay under this section, not to exceed $10,000.

(I) INSPECTION AUTHORITY.

For purposes of enforcing this section, any employee or other representative of the Department, upon presenting his or her credentials, may do any of the following:

1. Enter and inspect any property on which is located a wetland, or part of a wetland, that is subject to apermit issued under this section.

2. Enter and inspect any property to investigate a discharge of dredged or fill material.

3. Gain access to and inspect any records that the department requires the holder of the isolated wetland permit to keep.

(J) JURISDICTION AND PENALTIES.

1. It is unlawful for a person to conduct a regulated activity within a isolated wetland unless an isolated wetlands permit has been issued.

2. The circuit court of the county in which the affected isolated wetlands area or any part thereof lies shall have jurisdiction to restrain a violation of this chapter at the suit of the Department, the Attorney General, or any person adversely affected. In the event the affected isolated wetlands area lies in more than one county, jurisdiction shall be in the circuit court of any county in which any part of the area lies. In the same action the circuit court having jurisdiction over the affected area may require such area to be restored to its original condition. In the alternative, the Department may complete the restoration at the expense of the person altering the area in which case an action for recovery of the amount expended may be brought in any court having jurisdiction to restrain a violation. No bond shall be required as a condition of the granting of a temporary restraining order under this section, except that the court may in its discretion require that a reasonable bond be posted by any person requesting the court to restrain a violation of this chapter.

3. Any person violating any provision of this chapter involving more than five square yards of isolated wetlands is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than six months or fined not more than $5000, or both, for the first offense, and imprisoned not more than one year, or fined not more than $10,000, or both, for each subsequent offense.

4. Any violation of any provision of this chapter involving five square yards or less of isolated wetlands may be treated as a minor violation, the penalty for which shall be a fine of not less than $50 nor more than $200. The magistrates of this state have jurisdiction over minor violations of this chapter. Each day of noncompliance with any order issued relative to a minor violation or noncompliance with any permit, regulation, standard, or requirement relative to a minor violation shall constitute a separate offense.

5. Any person who is determined to be in violation of any provision of this chapter by the Department shall be liable for, and may be assessed by the Department for, a civil penalty of not less than $100 nor more than $1000 per day of violation. Whenever the Department determines that any person is in violation of any permit, regulation, standard, or requirement under this chapter, the Department may issue an order requiring such person to comply with such permit, regulation, standard, or requirement, including an order requiring restoration when deemed environmentally appropriate by the Department. In addition, the Department may bring a civil enforcement action under this section as well as seeking an appropriate injunctive relief.

6.All penalties assessed and collected pursuant to this section shall be deposited in the general fund of the state.



SECTION 3. SEVERABILITY

If a provision of this Act or its application to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and, to this end, the provisions of this Act are severable.