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Wetlands Placed at the Head of the Line: WDNR Front-Loads Wetlands Screening as Part of Project Permitting

As of June 1, 2016, projects developed in Wisconsin that may require a permit for wetland impacts are required to accelerate the wetland screening and delineation process in order for permit applications to be considered complete. The Wisconsin Department of Natural Resources (WDNR) issued guidance outlining the process of submitting either a wetland delineation or documentation that there are no wetlands present in a project area at the beginning of the permit application process, as part of the requirement to submit a “completed application.” The guidance establishes a new process making it necessary to obtain WDNR concurrence concerning either a wetland delineation or a determination of no wetland impact prior to submittal of permit applications for permits under the Wetland and Waterway Program, Stormwater Program, and CAFO Program.

Spurred in part by the occurrence of wetland impacts from project developments or wetland consideration during the course of permitting which has resulted in delays in permit processing, WDNR announced its intent to “front-load” the wetland assessment process in an effort to get project developers to consider potential wetland impacts early on in the project planning phase. To have a complete application and to reduce permit delays, applicants need to complete a wetland screening process prior to submitting permit applications to WDNR. The pre-application screening process is described in the guidance and if an initial screening for wetlands is not conducted prior to application submittal, WDNR indicates that it will consider the permit application package incomplete. As part of the screening process, not only is the presence of wetlands on the project area required to be identified, but also within 75 feet off-site of the proposed project establishing the scope of the initial screening review. Initial wetland screening follows the following steps:

1.    Project proponents are to review the Wisconsin Wetland Inventory and Wetland Indicators layers on the Surface Water Data Viewer available for review here.

2.    Following review of these layers, then project proponents are to review topographic maps.

3.    The third step is to review aerial photos and if no potential wetlands are identified in the initial review, then adequate documentation needs to be compiled and submitted with the permit application indicating no potential wetland impacts are present.

If wetlands are identified as potentially being impacted by the project, then project proponents are to follow the wetland delineation process set forth in the guidance. The guidance notes that WDNR follows the following four processes for the evaluation of the adequacy of wetland delineation submittals:

1.    A concurrence/confirmation letter from U.S. Army Corps of Engineers or WDNR.

2.    A wetland delineation completed by an assured delineator.

3.    A delineation completed by the U.S. Army Corps of Engineers.

4.    Correspondence from the Office of Energy or WDNR Transportation Liaison applicable to certain transportation or energy projects.

Project proponents are advised to evaluate the guidance and conduct wetland planning at the front-end of their project, including initial site selection. Starting this process before permit applications can be deemed complete may require careful planning in certain circumstances, particularly where project confidentiality/trade secret concerns may be in play. As such, careful project planning is a must.

©2021 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 173

About this Author

David A. Crass agribusiness law attorney Michael best Law Firm
Partner; Industry Group Chair, Agribusiness, Food & Beverage

David’s practice sits squarely at the intersection of the food-water-energy nexus. His work in the areas of environmental, regulatory, agricultural production, manufacturing and distribution, and energy projects gives him the depth of experience necessary to counsel clients who will be feeding and powering a projected global population of nine billion people by 2050—at a time when resource scarcity and consumer confidence require an ongoing commitment to stewardship and sustainability.

David grew up on a dairy farm in Wisconsin and maintains a presence in Michael Best’s Madison, WI...