The Wisconsin Department of Natural Resources (DNR) is proposing a new guidance for wetlands located on dormant construction sites. Unlike most regulations, this proposed guidance is intended to help streamline the permitting process for disturbing newly formed wetlands on development projects that were commenced but not completed within five years after receiving an original wetland delineation.

Background

Before a new development is commenced, the site must be investigated to determine whether wetlands are present. If a wetland is located on the project site, a wetland delineation must be performed by a wetland specialist and approved by the DNR to determine the exact location of wetland boundaries on the property. Once the delineation is performed, a developer can move forward with a development project, knowing what land can be developed and what land must be protected as wetlands. A wetland delineation is generally valid for up to five years and, after this time, a new delineation must be performed. 

Due to the downturn in the economy, many development projects throughout Wisconsin were halted for several years after significant development activity had occurred. Some of these projects were stopped after infrastructure (sewers and roads) was installed or after a number of the lots had been sold. After lying dormant for several years, new wetlands formed on some project sites in areas where construction vehicles had left depressions or holes in the ground, or where significant grading had occurred. Due to the presence of these new wetlands and the fact that the wetland delineations had expired, many of the designated lots were no longer buildable, which changed the economic viability of the entire development. 

To obtain a permit to fill or disturb a wetland, current law requires the developer to demonstrate, among other things, that no “practicable alternative” exists other than filling the wetland. In other words, a permit to fill a wetland will be issued only if the developer can show that the filling of the wetland cannot be avoided through other means such as reconfiguring the development, reducing the number of lots, or developing the project on another property. Because not doing the project or doing it on another parcel of property is almost always an alternative that exists, it is generally difficult to obtain a permit to fill or disturb a wetland. 

Proposed guidance

Because these dormant construction sites would have been in compliance with the original wetland delineation if the sites had been fully developed at the time construction was initiated, the DNR is proposing a new regulatory guidance to allow for a more expedited approval process for filling or disturbing these newly formed wetlands. A regulatory guidance is a formal document that explains how certain regulations are to be interpreted and/or implemented to ensure fair and consistent application throughout the state. Under this proposed guidance, the practicable alternative analysis requirement will be presumed to be satisfied if any of the following conditions can be documented:

• If the developer or municipality installed sewer, water or other utilities or roads to facilitate planned development. 
• If the developer undertook significant site preparation work including clearing, grubbing and rough site grading, or otherwise altered site topography or drainage patterns.
• If the developer platted the area and sold at least 20 percent of the lots or the lot areas to third parties. 

This presumption is limited only to developments that were (a) commenced but not completed within five years of the original wetland delineation, and (b) based on a delineation completed no earlier than 2003. To obtain the permit for the wetland fill or disturbance, the developer must submit the new wetland delineation along with the original delineation to the DNR for review and approval. 

The comment period for the proposed guidance closed at the end of July. The DNR will consider making changes based on the comments received and will hopefully publish the final guidance by early September. For more information on the proposed guidance, visit the proposed DNR program guidance page on the DNR website: dnr.wi.gov/news/input/Guidance.html.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.