Tom Larson, NAIOP WI Lobbyist

Wetlands Regulatory Reform Bill Moves Forward-NAIOP Wisconsin Registers in Support of Bill

On January 3, 2012, Senator Neal Kedzie (R-Elkhorn) and Representative Jeff Mursau (R-Crivitz) introduced legislation (Senate Bill 368/Assembly Bill 463) intended to streamline the DNR permitting process related to wetland disturbances. Specifically, this legislation:

•  Gives the DNR greater flexibility to consider mitigation and to look "holistically" (considering the net environmental benefits after the mitigation is performed) at environmental impacts of projects that could impact wetlands.
•  Provides general permits parallel to those on the federal level for minor projects, and retains substantial DNR discretion over larger projects.
•  Retains DNR's authority over nonfederal wetlands (not connected to a navigable waterway), but does so in a way that provides a uniform approach to federal and nonfederal wetlands.

Under current law, the DNR is prohibited from considering mitigation in most cases. In those rare cases when mitigation can be considered, it is only a last-resort option, if no other possibility exists, including doing the project elsewhere or not doing it at all. Under the bill, mitigation can be considered along with other factors in determining whether to issue a permit, and mitigation is required as a condition for individual permits that are actually issued.

Also, under current federal law, a streamlined permit process is allowed for minor activities, but a similar general permit process is not provided for under current state law. Under the bill, general permits are required for a number of specified general permit activities of 10,000 square feet or less (0.2 acres) and may be issued for other minor activities.

On January 18th, the Assembly Natural Resources Committee is scheduled to vote on a bill (AB 159) that would permanently suspend Wisconsin's Indirect Source Air Permitting program (Wis. Admin. Code Ch. NR 411). In May, the rule was temporarily suspended by the legislature's Joint Committee for Review of Administrative Rules. To permanently suspend the rule, legislation must be passed through both houses and signed into law.

NR 411 requires indirect source air permits for large commercial and mixed-use development projects that will attract a large number of automobiles (shopping malls, entertainment facilities, large employers, highways and roads, etc.). Wisconsin is one of the only states in the country with regulations for permitting indirect sources of carbon monoxide emissions.  

The permanent suspension of NR 411 is one of NAIOP-WI's legislative priorities.