In the past, property owners who discovered wetlands on their properties were left with few options other than to avoid the wetlands. Although Wisconsin’s wetland mitigation program allows for small disturbances to wetlands if new wetlands can be established on site or nearby sites, or if credits can be purchased from area wetland mitigation banks, this was not a viable option for most property owners because mitigation is allowed only if no “practicable alternative” to the wetland disturbance exists. Due to a very broad interpretation of this standard by the Wisconsin Department of Natural Resources (DNR), property owners were regularly told by the DNR that a practicable alternative to disturbing the wetland existed even if such alternative required purchasing property elsewhere.
To make wetland mitigation a more viable alternative for property owners, Wisconsin lawmakers recently passed SB 459, which, among other things, limits the scope of the practicable alternatives analysis to on-site alternatives for smaller projects involving minimal wetland disturbances.
Background
Many homeowners, farmers and small businesses often need to disturb a small section of a wetland to be able to gain access to their property or to construct or expand a home, barn or building. Before a property owner can disturb a wetland, current law requires the property owner to consider all options for avoiding the wetland disturbance. If no alternative exists other than disturbing the wetland, a property owner may disturb the wetland but must minimize the impact on the wetland. Finally, the property owner must then mitigate any impact made to the wetland by recreating a larger wetland on site or nearby, or by purchasing credits at a wetland mitigation bank.
Note: Under Wisconsin’s mitigation program, a property owner must create a wetland on site or nearby at a ratio of generally 1.5 acres for every 1 acre of wetland disturbed, or the property owner can purchase credits from a wetland bank at a ratio of 1.2 to 1.95 acres for every 1 acre of wetland disturbed. Thus, any fill of a wetland will result in a net increase in the amount of wetlands.
The practicable alternatives analysis
As previously indicated, before the DNR will authorize a wetland disturbance, a property owner must demonstrate that no practicable alternative (PA) to the wetland disturbance exists. Unfortunately, the DNR has interpreted the PA requirement very broadly to include doing the project on a different site — including sites not owned by the party — or not doing the project at all. In other words, to satisfy the PA requirement, a property owner must often show that the proposed project cannot be done on a different property or show that the proposed project must be done. Although doing a project on a different site or not doing the project are almost always considered PAs under the DNR’s interpretation, these options are rarely realistic or economically feasible alternatives for most property owners.
In 2012, Wisconsin lawmakers limited the scope of the PA analysis for certain commercial projects and projects that could demonstrate a greater public benefit. See 2011 Wis. Act 118. Under these changes, the PA analysis was limited to alternatives located on the same or adjacent site of the disturbance for expansions of existing industrial, commercial or agricultural facilities, or if the property owner could demonstrate that the proposed project would result in a public benefit. See Wis. Stat. § 281.36 (3n). While helpful to some projects, this definition of “PA” had limited benefit because it did not apply to residential, agricultural or most small business projects.
New law
SB 459 expands the scope of projects eligible for the limited PA analysis to include those projects not covered by the changes made in 2012. Specifically, SB 459 limits the PA analysis to alternatives located on the same site of the proposed project for activities related to the construction or expansion of a single-family home, construction or expansion of a barn or farm building, or expansion of a small business facility. Only smaller disturbances up to 2 acres in size are eligible for this limited PA analysis. To prevent people from “gaming the system” by buying up a property with a known wetland on it and then subdividing it into smaller lots so each lot owner can take advantage of the limited PA analysis, the new law excludes from this limited PA review projects initiated after July 1, 2012.
It is worth noting that this change to the PA analysis will make Wisconsin law consistent with federal law as established by the U.S. Army Corps. of Engineers regulatory guidance. Hopefully, greater consistency between state and federal law will reduce confusion and frustration for property owners.
For more information on the new changes to Wisconsin’s wetlands law, contact Tom Larson at tlarson@wra.org.
Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.