An “Act 10” for Wetland Reform

A pair of Republican legislative leaders will introduce a bill Friday to reform wetland regulation that advocates say will be a boon for real estate development while leaving current regulation of federal wetlands in place. More than 80% of wetlands in Wisconsin are adjacent to navigable waters and fall under federal jurisdiction. The bill by Senate President Roger Roth and Assembly Majority Leader Jim Steineke would reform regulation of non-federal or non-navigable isolated wetlands and “artificial wetlands,” which are created by human modifications to the landscape.  Critics say an “artificial wetland” could be as insignificant as ruts left by earth moving equipment yet may require mitigation. Supporters say such regulations can cripple development.

Regulation of federal wetlands would be unchanged.

Wisconsin is one of just a few states with regulation of isolated wetlands and supporters of the bill say the impact of easing the regulations would be to real estate development what Act 10 was to public employee reform in Wisconsin in 2011.  Before property can be developed, it must be determined whether the activity could impact wetlands. Under current law, developers need to mitigate the impacts to wetlands before DNR will issue an individual permit. Current law requires a minimum mitigation ration of at least 1.2 acres for each acre affected; more if the mitigation is outside of the watershed or other factors are present.

Developers can meet mitigation requirements by purchasing credits from a mitigation bank in Wisconsin, participating in an in lieu fee program under which payments are made to DNR, or completing mitigation within the same watershed or within a half mile of the site. Sources tell Media Trackers that the in-lieu fee program has a current balance of about $15 million. The legislation would require that those funds be spent by June 30, 2019 and future funds be expended within a two year period.

The bill would exempt wetlands not subject to federal jurisdiction from state wetland permitting requirements. However mitigation would still be required so supporters say there would be no net loss of wetlands. Ending the permitting requirement for non federal and artificial wetlands will expedite development. When the economic downturn came last decade, construction activity on sites in development stopped. Supporters of the Roth/Steineke bill say that since then, development has been halted due to the discovery of new wetlands on existing sites.

Under the bill, artificial wetlands would no longer be subject to the same permitting process used to modify other types of wetlands, because they are created by human activity. Current law already exempts artificial wetlands in some cases. The DNR would still play a significant role in identifying and delineating wetlands, permitting wetlands adjacent to navigable waters and requiring mitigation for both federal and non-federal wetlands.

While non-federal wetlands would no longer be subject to permitting requirements, they would still have to be mitigated at current rates and maintained in perpetuity.

Supporters  argue the legislation would spur economic development by eliminating thousands of dollars spent and time lost in the permitting process. And they say this will be accomplished without costing the state any net loss of wetland area. The legislation is similar in some regards to accommodations on wetland regulations given to Foxconn for it $10 billion development in Southeast Wisconsin. Environmentalists sharply criticized those concessions and supporters expect activists to demonize the legislation as harmful to the state nonetheless, much the way public employee unions fought Act 10. Supporters tell Media Trackers they are ready for that fight.