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Summary of Changes Based on Public Comments – Nonfederal Wetland Exemption Guidance
Thank you to all of the individuals and groups that provided feedback on the Department of Natural Resources (Department) new guidance titled, “Nonfederal Wetland Exemption” Guidance. Included in this document are all of the public comments received. In addition to minor editorial changed, the Department made the following changes based on the feedback received:
1. Modified the recommended process for determining if a wetland meets the definition of a “rare and high quality” wetland pursuant to s. 281.36(4n)(a)3, Wis. Stat.;
2. Clarified that the 1987 USACOE wetland delineation manual and applicable regional supplements must be used when performing wetland delineations; and
3. Clarified the timeline for nonfederal wetland boundary confirmations. For more information about the nonfederal wetland exemption, please visit https://dnr.wi.gov/topic/wetlands/permitExemptions.html. If you have any questions, please contact your local wetland exemption specialist or Amanda Minks at (608) 264-9223 or [email protected].
From: Warpinski, Ted A. <[email protected]>Sent: Wednesday, July 18, 2018 11:12 AMTo: DNR WY WRZ GuidanceCc: Skwierawski, M. AndrewSubject: Artificial and Non-federal exemptions Amanda, We do have questions about the two proposed guidance documents. With regard the non-federal exemption, the statute does not contain a requirement that the applicant obtain a jurisdictionaldetermination from the Corps, only that a qualified professional provide the opinion that the exemption applies. Consideringthat the intent of the statute is to streamline the process, why does the guidance require that a Corps determination beobtained? A related question exists on the artificial exemption. It seems the presumption is that an artificial wetland is a non-federalwetland but that is not part of the statute. The guidance should clarify the relationship between the artificial exemption andthe non-federal exemption. Thank you Ted A. Warpinski Ted A. Warpinski Attorney 920.431.2236 [email protected]
From: McBroom, Maureen <[email protected]>Sent: Tuesday, July 24, 2018 11:06 AMTo: DNR WY WRZ GuidanceCc: Minks, Amanda L - DNR; Nedland, Thomas S - DNR; Molstad, Neil E - DNRSubject: Comments on Act 183 guidance documents: Artificial Wetland Exemptions and Nonfederal Wetland
Exemptions Good Morning- Ruekert & Mielke staff have reviewed the proposed guidance documents and participated in the June 26, 2018 webinarpresenting these documents. We respectfully submit the following comments on these proposed guidance documents for yourconsideration. Nonfederal Wetland Exemptions, Guidance # 3500-2018-02
1. The name of this guidance document and reference to this regulatory approach should be renamed to something like“Nonfederal Wetland Notification” or “Nonfederal Wetland Disturbance Notification”. Using the term “Exemption” forboth the artificial wetland exemption process (an exemption of a particular wetland from regulatory authority) and the15-day notification of disturbance to a nonfederal wetland (which implies the state still has authority to regulate thewetland, but in through a streamlined permitting process), is confusing. Since this 15-day notification to DNR ofdisturbance to nonfederal wetlands is similar to the NR216 storm water Notification of Intent (NOI) structure, the nameof this approach could be similar. In addition, the audience that would typically work with these permitting approaches(developers, contractors, engineers, municipalities) are familiar with the wetland/waterway and storm water regulatoryprocesses, so the naming would fit well.
2. A map or flow chart to determine simple, straight-forward nonfederal wetlands could be developed to minimize the
amount of time needed to confirm ACOE does not have authority over a particular wetland. The current approach ofrequiring a jurisdictional determination from ACOE negates the time savings of a 15 day regulatory process, since theACOE process typically takes multiple months to complete.
3. The “qualified wetland professional” should include individuals who have completed the training programs listed in Act
183 and have at least 1 year in the field. This should not be limited to individuals who have spent 1 year full time in thefield, as many employers require field staff to be responsible for other non-wetland or non-field work as well. Requiringan individual to prove they have spent 1 year full time in the field may be difficult, while providing evidence of fieldexperience over a year’s time is much simpler to provide in a description of qualifications, on a resume or to DNRregulatory staff. (The notion of the 1 year field work requirement applying to “full time” work was discussed during theJune 26, 2018 webinar.)
4. Please clarify in the guidance document whether an alternatives analysis is required for the 15-day notification approach.
5. Under Step 3 Urban vs. Rural Areas, please clarify if an area is eligible for the 15-day notification process if the project
area will be served by a sewerage system when complete. Some areas may not be served by a sewerage system at thebeginning of a project, but with the installation of sewer lines during the project, the end result will be sewerage serviceto the area once the project is complete.
6. Please clarify whether utility projects can be covered through the 15-day notification process in either urban areas or in
rural areas.
7. The flow chart provided in Guidance # 3500-2018-02 is very helpful.
Artificial Wetland Exemptions, Guidance # 3500-2018-01
1. The “qualified wetland professional” should include individuals who have completed the training programs listed in Act183 and have at least 1 year in the field. This should not be limited to individuals who have spent 1 year full time in thefield, as many employers require field staff to be responsible for other non-wetland or non-field work as well. Requiringan individual to prove they have spent 1 year full time in the field may be difficult, while providing evidence of fieldexperience over a year’s time is much simpler to provide in a description of qualifications, on a resume or to DNRregulatory staff. (The notion of the 1 year field work requirement applying to “full time” work was discussed during theJune 26, 2018 webinar.)
2. The flow chart provided in Guidance # 3500-2018-01 is very helpful.
3. The Checklist for Artificial Wetland Exemption Determinations provided on the DNR web-site is very helpful. Please add
spaces on the checklist for the title or description of the project area (name of area/project, municipality/county,address/location, date). This checklist can be a helpful, optional item to submit to DNR along with the artificial wetlandexemption submittal. (Especially for EAS program or the Office of Energy program if they do not require use of theePermitting system.)
Please e-mail or call me if you would like to discuss these suggestions. We appreciate your consideration of these comments &suggestions. -McB Maureen A. McBroomEnvironmental Coordinator
R/M was named a 2018 Top Workplace! Learn more about our culture. 2018.06.11
From: Dan Carter <[email protected]>
Sent: Wednesday, June 27, 2018 6:30 AM
To: DNR WY WRZ Guidance
Subject: Comments on nonfederal wetland exemption guidance
These comments are given in a personal capacity.
The guidance for defining "rare and high quality" plant communities for nonfederal wetland exemptions is outside of wording ofthe law, which specifically defines "rare and high quality" by proximity to class I or II trout streams, or consisting of at least 75%of a number of specified community types (e.g. sedge meadow, hardwood swamp, etc.). The law does not define "rare and highquality" based on any other definition of "high quality" aside from community type. Specifically, it does not use or refer to theQuality Ranking Document referred to in Appendix 1, and the guidance is probably stepping out of bounds by doing so, giventhat the law itself already specifically defines what a "rare and high quality" wetland is for its purposes. In doing this, theguidance seems to be expanding what may be exempted from permitting beyond its authority in the same way that alteringthe definition by adding other rare community types (e.g. wet prairies) would reduce what may be exempted. If guidance canelaborate on the law even where things/concepts are specifically defined in the law, then I imagine guidance could also fix theissue with having to characterize inaccessible wetlands off the subject property (definitions applying to whole wetlandcomplexes vs. single properties).
Another practical impact of "elaborating" on the "rare and high quality" definition given in the law, is that it increases the theamount of botanical information needed for characterization beyond what is needed to simply characterize community typesaccording to the Eggers and Reed classification key.
Thanks,
Dan Carter, PhD
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July 20, 2018VIA EMAILsconsln.
Ms. Amanda MinksDNR WT/3P.O. Box 7921Madison, WI 53707-7921
Comments on Artificial Wetland Exemptions #3500-2018-l andNonfederal Wetland Exemptions #3500-201 8-2
Dear Ms. Minks:
The following comments are being submitted on behalf of the'Wisconsin Realtors Associationand the Wisconsin Builders Association. In general, we appreciate that both documents arewell written with easy to use checklists and other tools.
'We do however have some substantive
comments particularly on the artificial wetland exemption.
1. Comments on Artificial Wetland Exemption
A. \iletland History
As written, the artificial wetland exemptioi in Wis. Stat. $ 281.36(an)(a)1, applies to wetlandscreated by human modifications after August I, l99l unless the Department has definitiveevidence of a prior wetland or stream history or other exclusions apply. Definitive evidence isdefined $ 281.36(an)(a)(3)d. as follows:
2. "Definitive evidence" means documentary evidence such as any of the following:a. Maps.
b. Aerial photographs.
c. Surveys that use a scale of not more than 100 feet per inch.
d. Wetland delineations.
With respect to surveys the statute is clear that the scale be ooof not more than 100 feet per inch."This limiting factor was included to ensure a reasonable amount of accuracy in determiningwhether a wetland was present. Government Surveys usually are not atthat scale and as a result
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July 20,2018Page2
should not be used. Since other surveys may or may not be at that scale, the scale requirementshould be noted in the guidance as an express limitation on the items required to be presented.
While soil surveys and maps can provide valuable information about the potential for historicwetlands to be present, the standard remains "definitive evidence." The Guidance correctlynotes that hydric soils are only one of the three wetland indicators, but then concludes by stating,"so soils information should be combined with other data and figures to create a completerecord." No. It's not just a good idea and amatter of a complete record. Other informationmust be provided in order to reach the threshold determination that there was wetland history,and then it must be sufficient to constitute definitive evidence.
B. Human Disturbance
The Guidance properly notes that the wetland must arise from human disturbance, but its scopeis too limited. The Guidance states that "the disturbance must be a change to the landscape'stopography or hydrology." Actually the statute says a change to, "the landscape or hydrology."Changes in landscape may or may not involve changes to the topography or hydrology.
Moreover, there are a list of examples of human disturbance which are common, but they allsuggest fairly extreme kinds of disturbance. There aÍe a variety of ways that unintentionalhuman disturbance can create artificial wetlands. For example, an upland lot of lower elevationmay be the last to develop and have developed wetland characteristics because it served as a de
facto stormwater pond. While that may be less likely under today's regulations, that was notan uncommon occurrence. V/e think the Guidance should clearly indicate that the examplesare not an exclusive list and can include unintentional human disturbance activities.
C. Fish Spawning.
The fish spawning exclusion arose out of a specific concern in the greater Green Bay areaconcerning the known presence of certain areas for northern pike spawning. The statutorylanguage refers to, "A wetland that serves as a fish spawning area or a passage to a fishspawning atea."
As written the Guidance would require an independent evaluation be undertaken for everywetland other than an isolated nonfederal wetland, and even then it suggests that such ananalysis might have to be undertaken. That was not the intent of this provision. It was designedto exclude known areas of fish spawning habitat, not require case by case determinations forevery wetland site statewide.
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July 20,2018Page 3
Nonfederal Wetland Exemption
A. Introduction
This Guidance generally does a good job of adhering to the statutory language and makingreasonable inferences where the statute is silent, such as in defining agricultural practices.However, the introductory section that purports to compare nonfederal wetland and artificialwetland exemptions is not as clear as it could be. There is in fact no comparison or analysis ofthe artificial wetland exemption in this document. The Guidance should clearly state that thisGuidance only addresses nonfederal wetlands and that there is a separate Guidance thataddresses artificial wetlands, ideally with a link.
B. Rare and High Quality Wetlands
A rare or high quality wetland is one in which 75o/o or more of the wetland qualifies as adesigned type of high quality wetland. The Guidance indicates that "Whenever possible, thissurvey should be completed for the entire wetland complex, and should not be limited to theproposed project area." This means that if someone is intending to fill less than an acre of anisolated wetland that is part of a larger complex, the entire complex must be subject to a
complete botanical survey.
The statute contemplated a far more limited scope. The statute provides an exemption if, "Thedischarge does not affect araÍe and high quality wetland." The question is whether the area ofthe discharge impacts a wetland that qualifies as a rare and high quality wetland, i.e. meets the7 5o/o test for the designated wetland type.
We appreciate the opportunity to submit these comments. Please let us know if you would liketo discuss any ofour concerns.
Best regards,
STAFFORD ROSENBAUM LLP
Paul G. Kent
PGK:maicc: Thomas Larson
Brad Boycks
0'12018t607
From: Andrew Geffert <[email protected]>Sent: Wednesday, June 27, 2018 11:53 AMTo: DNR WY WRZ GuidanceCc: Minks, Amanda L - DNRSubject: Nonfederal Wetland Exemptions I find it confusing to use the word “Exempt” for the Artificial Wetland Exemption and the Nonfederal Wetland Exemptions. For Artificial Wetlands, the wetland is exempt from regulation.For Nonfederal Wetland Exemptions, the exemption if from the permitting requirement, but the wetland(s) are themselves stillregulated by the DNR, correct? I believe either using a different term, or being more changing the wording to Nonfederal Wetland Permitting Exemptionswould help. Andrew Geffert, PE | MSPoint of Beginning, Inc. | Project Engineer & Wetland Delineator715.340.4611 (c) | [email protected] Stevens Point, WI, 54482 | Green Bay, WI 54304715.344.9999 (o) | 715.344.9922 (f) | www.pobinc.com
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634 W. Main St. #300, Madison, WI 53703 608-251-7020 | www.cleanwisconsin.org
July 20, 2018
Amanda Minks Wisconsin Department of Natural Resources Wetlands Section 101 S. Webster Street Madison, WI 53703
Dear Ms. Minks:
Clean Wisconsin thanks the Department of Natural Resources (DNR) for the opportunity to
comment on the draft guidance document “Nonfederal Wetland Exemptions” (Guidance # 3500-
2018-02). Clean Wisconsin was founded in 1970 as Wisconsin’s Environmental Decade. We are a
nonprofit environmental organization working to protect and preserve Wisconsin’s air and water
through public education, litigation, community advocacy, and citizen actions on behalf of our more
than 20,000 members and supporters statewide.
Our comment is that the draft guidance document implements a standard, requirement or
threshold that is not explicitly required or permitted by statute in violation of Wis. Stat. s.
227.10(2m).
Under 2017 Wisconsin Act 183, discharges to nonfederal wetlands are exempted from
permitting requirements, with some exceptions. One exception is that discharges to nonfederal
wetlands that are considered “rare and high quality” still require a permit. Wis. Stat. s.
281.36(4n)(b)2. For the purposes of 2017 Wisconsin Act 183, the term “rare and high quality
wetland” is defined as the following by Wis. Stat. s. 281.36(4n)(a)3:
“‘Rare and high quality wetland’ means a wetland that is directly adjacent or contiguous to a class I or class II trout stream or that consists of 75 percent or more of any of the following wetland types:
a. Alder thicket. b. Calcareous fen. c. Coniferous swamp. d. Coniferous bog. e. Floodplain forest. f. Hardwood swamp. g. Interdunal wetland.
634 W. Main St. #300, Madison, WI 53703 608-251-7020 | www.cleanwisconsin.org
h. Open bog. i. Ridge and swail [sic] complex. j. Deep marsh. k. Sedge meadow.”
The plain reading of this definition only requires a determination that the wetland is either 1)
adjacent to a class I or class II trout stream or 2) composed of 75% of one of the 11 wetland types
specified. There is no reference to any further analysis of the wetland’s plant species composition in
order to meet the definition if either of the two aforementioned requirements are met.
However, the draft guidance adds an analysis of the wetland’s condition based on the
particular plant community present in that wetland in order to meet the definition. The guidance
refers to a “Quality Ranking Document” that contains standards for what a high quality wetland
should be and adds this analysis to the statutory definition to determine whether a wetland is
considered a “rare and high quality wetland” under the statute.
The additional analysis referred to in the guidance implements a standard, requirement, or
threshold not explicitly required or permitted by the statute, in violation of Wis. Stat. s. 227.10(2m).
Therefore, we request that all references to this additional analysis of the wetland’s condition based
on the Quality Ranking Document be removed from the draft guidance in order to be consistent
with the statute.
Sincerely,
Paul Mathewson
Staff Scientist; Clean Wisconsin
From: Slawski, Thomas M. <[email protected]>Sent: Tuesday, July 17, 2018 11:51 AMTo: DNR WY WRZ GuidanceCc: Hahn, Michael G.; Carter, Daniel L.Subject: SEWRPC Comments for the Proposed Program Guidance for Artificial and Nonfederal Wetlands To: Program Committee Please find our comments below for the Proposed Program Guidance for Artificial and Nonfederal Wetlands: Appendix 1: Under “Documenting a Rare and High Quality Wetland Type” #4, the guidance deviates from the definition of “rareand high quality wetland” given in 281.36(4n)(a)3, Wis. Stat, which defines “rare and high quality” based on adjacency to a classI or class II trout stream or the wetland consisting of at least 75% of the community types listed in the statute. The statute doesnot restrict its definition of “rare and high quality” to those communities that meet further criteria based on a “Wetland TypeQuality Ranking” and “High Quality” standards like those described in the guidance. The practical effect of this is to expand thepermitting exemption to include a sizeable fraction of wetlands that consist of community types that fall under the statute’sown “rare and high quality” definition, but that fail to meet the additional “High Quality” standards established in the guidance.The document should and does provide guidance on designating the plant community types in accordance with the statute (e.g.use of the Eggers and Reed “Wetland Community Classification Key” and WDNR’s Natural Heritage descriptions of ridge andswale and interdunal wetlands), but it should not alter the statutory definition of “rare and high quality” by adding additional“High Quality” standards to communities meeting the statutory definition of a “rare and high quality” type. Also, lessdocumentation would be needed to support a community type assessment than would be needed to additionally assesscommunities based on “High Quality” standards. Sincerely,Tom Slawski
Thomas Slawski | PhD, Chief [email protected] | 262.953.3263sewrpc.org/news
From: Hahn, Michael G. Sent: Wednesday, June 27, 2018 3:15 PMTo: Carter, Daniel L. <[email protected]>; Slawski, Thomas M. <[email protected]>; Boxhorn, Joseph E.<[email protected]>; Herrick, Laura K. <[email protected]>; Jors, Christopher J. <[email protected]>; Dietl, JenniferL. <[email protected]>; Heyel, Shane <[email protected]>Cc: Muhs, Kevin J. <[email protected]>Subject: RE: Proposed Program Guidance for Artificial and Nonfederal Wetlands open for comment Dan, Thanks for reviewing the draft guidance, and for your comments.
Tom, Let’s discuss providing comments starting with Dan’s and adding any that other staff members may have after reviewing theguidance. Comments are due by July 20. Mike
From: Carter, Daniel L. Sent: Wednesday, June 27, 2018 8:16 AMTo: Slawski, Thomas M. <[email protected]>; Boxhorn, Joseph E. <[email protected]>; Hahn, Michael G.<[email protected]>; Herrick, Laura K. <[email protected]>; Jors, Christopher J. <[email protected]>; Dietl, JenniferL. <[email protected]>; Heyel, Shane <[email protected]>Subject: Proposed Program Guidance for Artificial and Nonfederal Wetlands open for comment Hi all,I thought I would give you all a heads up that the program guidance for artificial and nonfederal wetland permitting exemptionswas posted yesterday and is up for comment through July 20. The documents can be viewed here.https://dnr.wi.gov/news/input/Guidance.html Implementation of Act 183 will be interesting, because exemptions for nonfederal wetlands are all going to need USACEjurisdictional determinations, and while nonfederal wetland delineations are good for 15 years in from Wisconsin’s standpoint,the USACE is still going to consider delineations good for 5 years, which probably will render the 15 years mute in mostsituations, because the USACE has to make jurisdictional determinations. I’m mostly concerned with the nonfederal exemption and the “rare and high quality” wetlands guidance. It seems to me like theguidance deviates from the “rare and high quality” definition provided in Act 183. The botanical survey documentationsuggested in the guidance is going to keep consultants very busy, because it requires very comprehensive survey work(including canopy cover estimates for all species) and mapping of each community type in a wetland (probably a at least tenadditional billable hours for the smallest, simplest wetlands). If SEWRPC wishes to comment, this is what I would have: Appendix 1: Under “Documenting a Rare and High Quality Wetland Type” #4, the guidance deviates from the definition of “rareand high quality wetland” given in 281.36(4n)(a)3, Wis. Stat, which defines “rare and high quality” based on adjacency to a classI or class II trout stream or the wetland consisting of at least 75% of the community types listed in the statute. The statute doesnot restrict its definition of “rare and high quality” to those communities that meet further criteria based on a “Wetland TypeQuality Ranking” and “High Quality” standards like those described in the guidance. The practical effect of this is to expand thepermitting exemption to include a sizeable fraction of wetlands that consist of community types that fall under the statute’sown “rare and high quality” definition but that fail to meet the additional “High Quality” standards established in the guidance.The document should and does provide guidance on designating the plant community types in accordance with the statute (e.g.use of the Eggers and Reed “Wetland Community Classification Key” and WDNR’s Natural Heritage descriptions of ridge andswale and interdunal wetlands), but it should not alter the statutory definition of “rare and high quality” by adding additional“High Quality” standards to communities meeting the statutory definition of a “rare and high quality” type. Also, lessdocumentation would be needed to support a community type assessment than would be needed to additionally assesscommunities based on “High Quality” standards.
Dan
Dan Carter, PhD | Principal [email protected] | 262.953.3208W239 N1812 Rockwood DriveP.O. Box 1607Waukesha, WI 53187-1607sewrpc.org/news
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Wisconsin’s Green Fire Comments on Wisconsin Department of Natural
Resources Bureau of Watershed Management Draft Program Guidances
on Artificial Wetland Exemptions and Nonfederal Wetland Exemptions-
Guidance Numbers 3500-2018-01 and 3500-2018-02
July 20, 2018
About Wisconsin’s Green Fire: Wisconsin’s Green Fire- Voices for Conservation (WGF) supports
the conservation legacy of Wisconsin by promoting science-based management of its natural resources.
Our 390 members represent extensive experience in natural resource management, environmental law
and policy, scientific research, and education. Our members have backgrounds in government, non-gov-
ernmental organizations, universities and colleges and the private sector.
Summary Statement: We have reviewed the Draft Guidance documents: 3500-2018-01 & 3500-
2018-02 (Draft Guidance) and have a number of comments that are outlined below. The review was
conducted by a number of our members who have experience administering Wisconsin’s wetland pro-
grams and regulations. We would be happy to discuss these comments with Department of Natural Re-
sources (Department) staff.
We appreciate the challenges and constraints placed on the Department by requirements specified in
Wisconsin 2017 Act 183 (Act 183) regarding nonfederal and artificial wetlands. WGF commented about
the proposed legislation and will not repeat those concerns here except as they may pertain to imple-
mentation procedures. WGF also recognizes that presumably the Department will not receive additional
resources to implement this new program so staff time that would otherwise be devoted to permitting,
enforcement, and broader customer service will be redirected to permit exemptions for non-federal and
artificial wetlands and associated program elements. Our members know from experience, the staffing
limitations on the Department’s waterway and wetlands program.
One of our major concerns is the need for greater clarity in the process for the nonfederal wetland ex-
emption and whether a jurisdictional determination from the U.S. Army Corps of Engineers (USACOE) is
needed for the exemption to be in place. (See further discussion under “Nonfederal Wetlands section.”
Comments Applicable to both Draft Guidance Documents:
Issuing Exemptions, Tracking, Compliance, and Enforcement: The Draft Guidance discusses the process
to apply for an exemption. We encourage the Department to clarify whether exemptions will be for-
mally issued for projects to fill artificial and nonfederal wetlands, and whether those exemptions will be
listed in a publicly available database such as Sharepoint. We encourage tracking and auditing of wet-
land fills of artificial and nonfederal wetlands to evaluate impact of the legislation and regulatory com-
pliance. We fully recognize Department staff constraints in this regard. We suggest the Guidance discuss
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that parties using these exemptions are responsible to ensure the project qualifies, the law is followed,
and that the state is responsible for enforcing the law.
Wetlands created to satisfy mitigation requirements: The Draft Guidance should clarify that mitigation
sites should not be considered eligible for either a nonfederal or artificial wetland exemption.
Executive Summaries: The Executive Summaries in both Draft Guidance documents state that “Before a
landowner, developer or builder “completes” a project, they must submit an exemption request. This
should be modified to state that before they “start” a project they need to submit an exemption applica-
tion.
Links in documents: We found that not all links were active.
Comments on Artificial Wetlands Draft Guidance Step 2: Wetland history: The list of maps and aerial photos in the Draft Guidance is not extensive enough to provide "definitive evidence" of prior wetland or stream history. In most cases, the mapping from the original government land survey, Bordner survey, and USGS topography maps are not sufficiently accurate to identify wet-lands. Stream locations are also often inaccurate or have been modified over time. While the quality and coverage of aerial photography has improved dramatically, many wetlands smaller than 5 acres are not apparent on typical statewide imaging until after 2005. We suggest the Guidance direct people to high resolution aerial photographs, such as those obtained by Wisconsin Department of Transportation (DOT) or municipalities, and to the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) for an-nual photos of cropland. USDA soils maps and the Wetland Indicators and Potentially Restorable Wet-lands layers from the DNR Surface Water Data Viewer should be submitted. The combination of images from multiple sources, over several years and seasons, leads to more reliable determinations. Because of the amount of time required for organic soils to develop, nearly all sites where organic soils are found can be considered natural wetlands unless there is evidence to show that organic soils have been transported to the site. The minimum soils mapping unit is typically 5 acres, so on-site soil mapping data, such as what would be required for a wetland delineation, should be required to make an accurate determination, however we recognize the limitation in Act 183. Step 3: Human disturbance: This section should refer to Chapter 5, Difficult Situations, in the US Army Corps of Engineers (USACOE) Regional Supplements. This chapter outlines the procedures for making wetland determinations when wetland indicators (hydrology, soils and/or vegetation) are not present. The chapter refers to difficult situations which are the result of human disturbance (atypical situations) or which may result from natu-ral conditions. In all parts of the Guidance, the reference to the USACOE's 1987 Wetland Delineation Manual should also include the most recent applicable Regional Supplement documents. We suggest that the sentence in the Guidance: “wetland boundaries shrink or swell over time” is inaccu-rate. Wetlands may change in appearance, but unless there are significant changes in hydrology, wet-land boundaries are generally fairly stable.
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Comments on Nonfederal Wetlands Draft Guidance Nonfederal Wetland Determination This section states that the USACOE must make a jurisdictional determination (JD) for nonfederal wet-land determinations but that an exemption request may also be submitted to the Department without a JD. This is confusing. This Guidance should state whether the Department can make a nonfederal wet-land determination without the JD. We believe that the Department cannot and should not, issue a de-termination prior to the USACOE issuance of a JD, since it may result in the loss of a federal wetland and put project proponents in violation of the Clean Water Act with substantial penalties. Step 1: Wetland boundary confirmation The Draft Guidance states that a wetland boundary confirmation is valid for 15 years unless additional information or a site visit is deemed necessary by the Department. Wetland boundaries may change gradually over a few years with changes in land use at a site, i.e. when cropping is abandoned, or when land use changes on adjacent properties affects wetland hydrology. Changes in wetland hydrology may occur from extensive tree clearing, road construction, and utility construction. We recognize that Act 183 places limitations on Department staff to conduct site visits as a routine pro-cedure. However we recommend the follow steps to assure that a wetland boundary is accurate:
Review recent DOT aerial photos and Natural Resource Conservation Service/FSA crop photos to determine if land use changes have occurred. This step is especially im-portant for sites near the urban fringe or urban area as defined in the statute.
Conduct a site visit if possible with a wetland professional representing the landowner or developer if it appears the wetland boundary has changed after initial review.
From our experience, a site visit when deemed necessary will adequately address uncertainties and as-sure an accurate wetland boundary. Step 2: Rare and High Quality Wetlands Act 183 clearly defines “high quality” wetlands for the purposes of this law as being directly adjacent or contiguous to a class I or class II trout stream or consisting of 75 percent or more of certain wetland types. The legislation does not address wetland quality as determined by any specific assessment meth-ods. However, the Draft Guidance includes a method for wetland quality assessment which would serve to further restrict wetlands to be considered as high quality. Use of this assessment method would re-sult in more wetlands eligible for the permit exemption than is provided under the law. The Legislature directed in Section 227.10 (2m) Wis. Stats., that “No agency may implement or enforce any standard, requirement, or threshold,…unless that standard is explicitly required or explicitly permitted by statute.” We caution the Department not to exceed the requirements placed in Act 183 by the Legislature. We recommend that the following reference for “high quality” determinations be removed from this Guid-ance: http://www.bwsr.state.mn.us/wetlands/wca/Eggers-Reed_Plant_Comm_Key.pdf. The Draft Guidance describes “clear documentation” for determining wetland type as using botanical surveys and "windshield surveys." Windshield surveys are not adequate or appropriate for determining wetland type. The limited view of windshield surveys reflects the influence of the road and may not be representative of the rest of the wetland. In order to meet the statutory standard of 75 percent or more of a certain wetland type, the Department should ensure that the entire wetland be evaluated appropri-ately.
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Step 5: Mitigation Requirements: This section refers to the mitigation requirement for nonfederal wetlands, but does not state that miti-gation wetlands should not be considered eligible for a nonfederal wetland exemption. Besides wetland mitigation banks listed in the RIBITS database, on-site or permittee-responsible mitigation sites are not eligible. We are not aware of a comprehensive source for wetland mitigation sites. The Department should develop a comprehensive list of mitigation sites to prevent potential future loss or degradation of these restored wetlands.
Overall comment: The determination of wetland quality is interpreted very narrowly by Act 183
and the Draft Guidance. Under the Clean Water Act and wetland water quality standards in NR 103 Wis. Adm. Code, “use designations” are based on potential. The uses of wetlands are defined as wetland functional values. If a landowner attempts to degrade a wetland which ranks high in performing one or more functional values through removal of vegetation, the wetland will still be a high quality wetland based on that potential because the vegetation can be restored. Only the loss of the wetland through filling or draining would remove the potential for the wetland to perform functional values. Thank you for the opportunity to comment on this Draft Guidance to implement Act 183. Please do not hesitate to contact us to discuss further. Michael Cain, Chair WGF Public Trust Work Group [email protected] 608-225-6071 For more information on WGF: www.wigreenfire.org [email protected]