Wisconsin's Golden Rule of Wetland Protection - "There’s a Permit for That"

Trivia question for week 2: What state permit requires a handful of legal documents, careful consideration, and ultimately protects life in the surrounding environment? If you guessed a drivers permit, well yes. But, more importantly, this also describes a Wisconsin Wetland Permit! When considering the list of benefits wetlands offer (see 1^st post), it’s clear why these cleansing powerhouses require a little extra protection.

Yet, when did this protection first start in Wisconsin? What do the permits consist of? And who can receive a permit?

  

Originally, Wisconsin was a wetland paradise, containing over 10 million acres of wetlands within its borders. However, after 150 years of development, agriculture, etc., this number now tallies close to 5.3 million acres. This means nearly half of all state wetlands have already been lost!

                                          Boy fishing for trout in Upper Pine Creek c.1900 (Dallas, WI)

Since 1948, Wisconsin wetlands were governed by “Nationwide Permits” issued through Section 404 of the Clean Water Act. However, in the early 1980s Wisconsin began to question the local validity of these permits. In 1982, lawmakers then decided to look into state-specific guidelines. Finally, in 1991, the first state wetland water quality standards were adopted under a newly-drafted Chapter NR 103 of Wisconsin Administrative Code (WisconsinWetland Regulatory Program). It is under this chapter that the “general” and “individual” permits first appear and are revised by the state on a case-by-case basis.

These same standards from 1991 have continued to be amended over the past 15 years, and remain the regulatory laws that protect wetlands in Wisconsin today.  (DNR Wetland Rules)

But what does this history lesson mean for your neighbor hoping to build a garage, the Starbucks looking to expand, or even a local nonprofit working in wetland restoration?

Simple: “there’s a permit for that.”

In fact, the first line of contact for any wetland-related endeavor is none other than the actor introduced in my first post: The Department of Natural Resources.

However, before delving into how to receive a permit, it helps to first understand how the process works. Firstly, for those who are curious, this is a what a permit looks like in paper format:

Although this is submitted to the state, the regulatory process of wetlands in Wisconsin developed through a hierarchical mode of governance. This means that the ‘bundles of rules’ guiding how we govern wetland permits in Wisconsin first emerged on Capitol Hill, was shipped over to Madison’s State Street, and finally distributed through the local City Hall. In other words, these rules of governance flow administratively through:

            -Federal

            -State

            -Local

to bring us the protective wetland guidelines offered by the government today.

What do these general levels of governance mean for Wisconsin wetlands? Here are a few examples:

Tier 1 - U.S. Army Corps of Engineers

Functioning as the federal arm of wetland protection, the U.S. Army Corps of Engineers conducts a Regulatory Program to “protect the nation’s aquatic resources, while allowing reasonable development through fair, flexible and balanced permit decisions” (USACE). Here are some quick facts about the USACE:

-They receive rights to issue permits under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act

-Wisconsin lies within the St. Paul District of the USACE, alongside Minnesota

-Permits are required for any work in, over or under a ‘Navigable Water of the U.S.’

-A Corps permit is mandatory for the discharge of dredged or fill material into waters of the U.S. (including wetlands)

Although these permits were previously the first step to any wetland-related interaction, this drastically changed after the 2011 Wisconsin Act 118. As my classmate Nicole mentions, this controversial Act now places permit revision solely in the hands of the DNR.

Tier 2 – Department of Natural Resources

Functioning as the state-specific actor of wetland protection, the Department of Natural Resources now serves as the buffer between the large-scale and local interests in wetlands. Thus, the DNR determines if community projects comply with the requirements of section 281.36, Wis. Statutes, and NR 229 and NR 103, Wisconsin Administrative Code. As the following diagram shows, each application for a wetland disturbance or restoration permit undergoes strict review.

The goal of the DNR is to avoid wetland impacts wherever possible. To regulate this, the DNR distributes general permits for:

      -Residential, industrial, & 
         commercial development

      -Recreational development

      -Dam repair and 
          reconstruction

      -Municipal development

      -Wetland restoration & 
          management

However if the criteria aren’t met for general permits, individual permits ARE available and reviewed by judicial leaders on a case by case basis.  

(Figure: Review of Regulated Activities)

Tier 3 – City of Lacrosse

The City of Lacrosse is a great example of a municipal actor stepping in as wetland protector at the local level. Over the past decade, the city has been actively monitoring the shoreland and wetland regions within their bounds. In fact, the 15.36 Shoreland-Wetland Zoning ordinance was recently added to the Lacrosse Municipal Code specifically for this purpose. Under this ordinance, the municipality works to:

          -Maintain flood and storm water capacity of wetlands

          -Prevent and control water pollution by filtering or storage of sediments,
               nutrients, heavy metals, or organic compounds

          -Protect fish, aquatic life, and wilderness by preserving wetlands and 
               surrounding habitats

          -Prohibit certain uses detrimental to the shoreland-wetland area

          -Preserve shore cover and natural beauty by restricting the removal of
               natural shoreland cover and shoreland excavation, filling, etc.

In sum, although much controversy still surrounds the adoption of state-regulated wetland permits, governmental leaders have taken steps to protect these critical ecosystems. Have these actions been enough? That's ultimately open to interpretation. However, with half of our environmental “kidneys” already burned out, any effort to restore and protect should definitely be taken into consideration.


 Links!

• DNR Wetland Rules 
• EnvironmentalLaw Institute: State Wetland Protection
• LacrosseOrdinance
• Reversingthe Loss: A Strategy to Protect, Restore and Explore Wisconsin Wetlands
• U.S.Army Corps of Engineers (USACE)
• Villageof Dallas, WI
• WisconsinWetland Regulatory Program: Protecting Wisconsin Wetlands