HB5386 103RD GENERAL ASSEMBLY

LRB103 36678 MXP 66788 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5386

Introduced 2/9/2024, by Rep. Anna Moeller

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.1015 new

Creates the Wetlands and Small Streams Protection Act to restore protections for wetlands and small streams that were formerly protected from pollution and destruction by the Clean Water Act. Provides provisions concerning: exemptions; wetlands delineation, classification, notification, permits and veto; general permits; appeal of final decisions made by the Department of Natural Resources and judicial review; investigation and enforcement; and county authority. Creates the Wetlands and Small Streams Advisory Committee and establishes duties and rules for the Committee. Creates the Wetlands and Small Streams Protection Fund. Provides for permit review fees. Defines terms. Makes conforming changes in the State Finance Act and the Illinois Environmental Protection Act. Effective immediately.

A BILL FOR

AN ACT concerning transportation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Wetlands and Small Streams Protection Act.

Section 5. Findings and Intent. The General Assembly finds:

(1) In 1818, Illinois contained an estimated 8.2 million acres of wetlands. Based on the Illinois portion of the National Wetlands Inventory, less than 9% of the original acres remain.

(2) With the significant loss in acreage, a corresponding loss in the functional values and benefits that wetlands provide has occurred.

(3) Illinois is bordered by 880 miles of rivers which are critical to navigation, commerce, recreation, and ecosystem health at home and downstream to the Gulf of Mexico. The health of Illinois rivers is heavily influenced by the health of the tributaries and small streams that flow into them.

(4) In Illinois, 9,894 total miles of streams provide water for surface water intakes, supplying public drinking water systems that rely at least in part on intermittent, ephemeral, or headwater streams.

(5) Continued loss of Illinois' wetlands and small streams may deprive the People of the State of some or all of the benefits that they provide, including:

(A) reducing flood damages and protecting vulnerable communities by absorbing, storing, and conveying peak flows from storms;

(B) improving water quality by serving as sedimentation and filtering basins and as natural biological treatment areas;

(C) providing breeding, nesting, forage, and protective habitat for approximately 40% of the State's threatened and endangered plants and animals, in addition to other forms of fish, wildlife, game, waterfowl, and shorebirds;

(D) protecting underground water resources and helping to recharge rivers, streams, and local or regional underground water supplies;

(E) serving as recreational areas for hunting, fishing, boating, hiking, bird watching, photography, and other uses;

(F) providing open space and aesthetic values, particularly in rapidly developing areas;

(G) providing unique educational and research opportunities because of their high diversity of plants and animals, their support for a high incidence of threatened and endangered species, and their function as a natural buffer for rivers, lakes, and streams;

(H) supplying nutrients in freshwater food cycles and serving as nursery areas and sanctuaries for young fish; and

(I) helping to protect shorelines from the forces of water erosion.

(6) Our changing climate, with weather patterns becoming more extreme and less predictable, heightens the need for some or all of the benefits that Illinois' wetlands provide, including flood control, coastal resilience, water quality, aquifer recharge, habitat, and maintenance of baseflow to recharge rivers, streams, and local or regional underground water supplies.

(7) Illinois historically relied on the Clean Water Act's permit program administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to prevent harm to aquatic resources from unauthorized discharges of dredge or fill material.

(8) After a Supreme Court decision created uncertainty about federal protections for some "isolated" wetlands, the General Assembly passed the Interagency Wetland Policy Act to protect these wetlands from State agency actions and achieve no net loss of wetlands.

(9) Recently, the Supreme Court's decision in Sackett v. EPA rolled back the scope of waters of the United States, thereby removing Clean Water Act protections for many waters of the State, including wetlands, such as bottomland hardwood forested wetlands that are separated from the Illinois River by levees that provide significant flood control protections.

(10) It is important to adopt protections under State law to protect Illinois waters from pollution and destruction to reinstate protections lost by rolling back the scope of Clean Water Act protections.

Section 10. Definitions.

"Advanced Identification sites" or "ADID" means aquatic sites that have been determined to provide Biological Values by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency Advanced Identification Study in accordance with 40 C.F.R. Part 230.80 as of the date of enactment of this Act.

"Affected property" means any property upon which a regulated activity is conducted.

"Agency" means the Illinois Environmental Protection Agency.

"Agricultural land" means land that is currently used for normal farming or ranching activities, consistent with Section 404(f) of the Clean Water Act.

"Avoidance" means any action taken in a manner such that a regulated activity will not occur, consistent with the 404(b)(1) Guidelines.

"Bog" means a peat-accumulating wetland that has no significant inflows or outflows and supports acidophilic mosses, particularly sphagnum, resulting in highly acidic conditions.

"Bottomland hardwood" means forested riverine floodplain forest in the 100-year flood plain of Illinois rivers and streams which are among the most productive and ecologically important wetlands in the world, providing wildlife habitat, flood control, erosion prevention, carbon sequestration, wildlife corridors, and water quality benefits.

"Committee" means the Wetlands and Small Streams Advisory Committee for purposes of this Act.

"Contiguous area" means the portion of a wetland or small stream that extends beyond the property boundary of the affected property.

"Corps of Engineers" or "COE" means the U.S. Army Corps of Engineers.

"Corps of Engineers Wetlands Delineation Manual" means the 1987 U.S. Army Corps of Engineers, Wetlands Delineation Manual, Research Program Technical Report Y-87-1, and any applicable Regional Supplements thereto issued prior to May, 2023.

"Cypress swamp" means forested, permanent, or semi-permanent bodies of water, with species assemblage's characteristic of the Gulf of Mexico and Southeastern Coastal Plains and including bald cypress, which are found in extreme southern Illinois.

"Department" means the Illinois Department of Natural Resources.

"Director" means the Director of the Illinois Department of Natural Resources.

"Fen" means a wetland fed by an alkaline water source such as a calcareous spring or seep.

"General permit" means a permit issued by the Department, including Army Corps of Engineers nationwide permits, consistent with Section 40 of this Act that pre-authorizes a category of activities that are similar in nature and impact on water quality, will have only minimal adverse effects when performed separately, will have minimal cumulative impacts on water quality provided the permittee complies with all of the conditions of the general permit, and will not cause or contribute to a violation of State water quality standards.

"High-Quality Aquatic Resources (HQAR)" means high quality aquatic resources (HQAR) consistent with the guidelines of the Chicago District of the U.S. Army Corps of Engineers.

"Individual permit" means a permit issued by the Department pursuant to Section 30 of this Act after case-specific sequenced review (avoidance, minimization, mitigation) of the proposed project and certification of compliance with State water quality standards.

"In Lieu Fee Mitigation" means a payment to the Illinois Department of Natural Resources or a Department approved In Lieu Fee Program made by an applicant to satisfy a mitigation requirement for Class III in accordance with this Act and implementing regulations.

"Maintenance" means work to repair and keep in good working order existing structures in wetlands and streams, including emergency reconstruction of recently damaged parts of currently serviceable structures, including dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope or size of the original fill design but such modifications may be eligible to utilize Nationwide Permit 3, Maintenance.

"Minimization" means, consistent with federal Section 404(b)(1) Guidelines and this Act, reducing as much as practicable the adverse environmental impact of an unavoidable regulated activity.

"Mitigation" means, for purposes of this Act, the restoration, establishment, enhancement or protection and maintenance of wetlands and other aquatic resources for the purpose of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved. Mitigation must be consistent with the requirements of this Act. Mitigation may include wetlands creation if authorized by the Department in situations in which other mitigation is impractical and the likelihood of success is high. Wetlands creation is restricted to areas that are currently non-wetland.

"Nationwide permit" means a nationwide permit issued by the U.S. Army Corps of Engineers as of the date of enactment of this Act.

"Panne" means wet interdunal flats located near Lake Michigan and includes dune and swale wetlands.

"Permit" means a written authorization issued by the Department of Natural Resources pursuant to this Act and implementing regulations. Permit includes "general permits" as well as "individual permits."

"Person" means an individual, partnership, co-partnership, firm, company, limited liability company, corporation, association, joint stock company, trust, estate, political subdivision, state or federal agency or other legal entity, or its legal representative, employee, agent or assigns.

"Predischarge Notification" means notice that a permittee must provide the Department before undertaking an activity authorized by a general permit.

"Prior converted cropland" means a converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity has been produced at least once before December 23, 1985, remains available for agricultural commodity production, and as of December 23, 1985, the converted wetland did not support woody vegetation and met the following hydrologic criteria for a farmed wetland: (i) inundation was less than 15 consecutive days during the growing season or 10% of the growing season, whichever is less, in most years (50% chance or more); and (ii) if a pothole, ponding was less than 7 consecutive days during the growing season in most years (50% chance or more) and saturation was less than 14 consecutive days during the growing season most years (50% chance or more).

"Regulated activity" means the discharge of dredged or fill material from a point source into a wetland or small stream subject to this Act.

"Small stream" means first-order streams, including intermittent, ephemeral, and headwater streams and tributaries. "Small stream" does not include Waters of the United States.

"Threatened or endangered species" means those species that have been designated as threatened or endangered pursuant to the Illinois Endangered Species Protection Act and those species that have been listed as threatened or endangered pursuant to federal law under the Endangered Species Act.

"Upland" means non-wetland, dry land.

"Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

"Wetland mitigation bank" means a site where wetlands have been restored, created, enhanced, or, in exceptional circumstances, preserved expressly for the purpose of providing mitigation for impacts to wetlands and that has been approved by the Department or the Corps of Engineers in accordance with the process established in 33 C.F.R. 332.8 and 40 C.F.R. 230.98 and Department regulations implementing this Act.

Section 15. Exemptions.

(a) Consistent with Section 404(f) of the Clean Water Act, as long as they do not have as their purpose bringing a wetland or stream into a use to which it was not previously subject and do not entail discharge of toxic pollutants, the following are not prohibited by or otherwise subject to regulation under this Act:

(1) Normal farming, silviculture, and ranching activities, including plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.

(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.

(3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation and ditches are included in this definition.

(4) Construction of temporary sedimentation basins on a construction site which does not include any regulated activities within a wetland or small stream. As used in this paragraph, the term "construction site" means any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. "Construction site" also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins.

(5) Construction or maintenance of farm roads or forest roads or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the wetland or small stream are not impaired, that the reach of the wetland or small stream is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

(6) Except for Class I wetlands and small streams, activities for the placement of pilings for linear projects, including bridges, elevated walkways, and power line structures in accordance with best management practices, to assure that the flow and circulation patterns and chemical and biological characteristics of the wetland or small stream are not impaired, that the reach of the wetland or small stream is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

(b) Any exemption that is authorized by and pertaining to wetlands or streams that are subject to regulation under the federal Clean Water Act, or regulations promulgated thereunder, at the time of enactment of this Act, shall also be an exemption for the purpose of this Act.

(c) The following are not jurisdictional wetlands or streams for purposes of this Act:

(1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act and comply with State water quality standards.

(2) Prior converted cropland.

(3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.

(4) An artificially irrigated area that would revert to upland if the irrigation ceased.

(5) An artificial lake or pond created by excavating or diking upland to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons.

(7) A water-filled depression created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting waterbody meets the definition of "waters of the State."

(8) Swales and erosional features, including gullies, rills, and small washes, characterized by low volume, infrequent, or short duration flow.

(d) Any activity covered by the Interagency Wetland Policy Act of 1989 is exempt from the provisions of this Act. This subsection (d) applies only if the Agency is in compliance with the Interagency Wetland Policy Act of 1989.

Section 20. Applicability. The requirements of this Act apply to all wetlands and small streams as those terms are defined in this Act. If a wetland or small stream ceases to meet that definition because it becomes subject to regulation under the federal Clean Water Act, it shall no longer be subject to the provisions of this Act. The Department may enter into an agreement with the Corps of Engineers to coordinate the permit program under this Act with the Corps of Engineers permit program under Section 404 of the Clean Water Act.

Section 25. Regulated activities; individual and general permits; small stream and wetland classification; mitigation; delineation; veto authority.

(a) No person may discharge dredged or fill material from a point source into a wetland or small stream protected by this Act except in accordance with the terms of an individual or general permit issued by the Department pursuant to this Section or Section 40 of this Act.

(b) Regulated activities in Class I wetlands and small streams shall only be authorized through individual permits issued by the Department under this Act. Regulated activities in Class II wetlands and small streams may be authorized under either an individual or general permit issued by the Department in accordance with this Act. Regulated activities in Class III wetlands and small streams can be authorized under general permits unless the Department notifies the applicant within 30 days after receipt of a predischarge notification that the regulated activity will result in a significant negative impact on State water quality. In such instances, an individual permit will be required.

(c) Wetlands and small streams shall be classified as follows:

(1) The Department shall classify a wetland as Class I if the wetland:

(A) is or encompasses a bog, bottomland hardwood forest, fen, panne, or cypress swamp;

(B) has been designated a Ramsar wetland of international importance under the Convention on Wetlands;

(C) is designated for important flood protection services pursuant to subsection (3);

(D) is habitat for a threatened or endangered species listed under State or federal law;

(E) has a Floristic Quality Index which is equal to or greater than 20 or a mean coefficient of conservatism (Mean C) equal to or greater than 3.5, determined in accordance with rules adopted by the Department;

(F) is or encompasses an ADID site; or

(G) is a High-Quality Aquatic Resource.

(2) The Department shall classify a non-Class I wetland as Class II if the wetland, including contiguous area, is larger than 0.5 acres. However, if a non-Class I wetland is smaller than 0.5 acres it shall be designated Class III.

(3) The Department may, in consultation with Illinois Emergency Management Agency and Office of Homeland Security, the Federal Emergency Management Agency or local authorities designate a wetland as Class I due to important flood protection services protecting human life and property if the wetland is no longer protected under the Clean Water Act.

(4) The Department shall classify a small stream as Class I if the stream:

(A) has been designated a National Wild and Scenic River, Study River, or Riverway;

(B) has been designated an Outstanding National Resource Water;

(C) has been designated an Outstanding State Resource Water pursuant to 35 Ill. Adm. Code 303.206;

(D) serves as drinking water supply;

(E) provides habitat or spawning area for rare or ecologically significant fish;

(F) has been rated A for Diversity or Integrity or mapped as Biologically Significant under the Department's Integrating Multiple Taxa in a Biological Stream Rating System;

(G) is a District Designated Water; or

(H) contains significant mussel beds as determined in conjunction with the United States Fish and Wildlife Service.

(5) The Department shall classify a non-Class I small stream as Class II if the stream:

(A) is located within lands under public ownership or holdings;

(B) has been rated B for diversity or integrity under the Department's Integrating Multiple Taxa in a Biological Stream Rating System;

(C) is adjacent to an approved mitigation bank or mitigation site;

(D) is within 1 mile upstream or downstream of primary priority reaches;

(E) is designated as enhanced for dissolved oxygen under 35 Ill. Adm. Code 302.206; or

(F) is longer than 100 linear feet.

(5) The Department shall classify all small streams that are not Class I or Class II as Class III.

(d) Mitigation shall be required for all regulated activities regardless of the type of permit and shall be conducted according to the following preferred order:

(1) Discharges impacting Class I wetlands shall be mitigated through either on site mitigation or off-site mitigation at an approved wetland mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the wetland that will be affected by the regulated activity. The mitigation ratio shall be 5:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 6:1 or a lower mitigation ratio not less than 4:1.

(2) Discharges impacting Class II wetlands shall be mitigated through either on site mitigation or off-site mitigation at an approved wetland mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the wetland that will be affected by the regulated activity. The mitigation ratio shall be 3:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 3.5:1 or a lower mitigation ratio not less than 2.5:1.

(3) Discharges impacting Class III wetlands shall be mitigated through either participation in an approved wetland mitigation bank or an approved in-lieu fee program, unless the Department for good cause objects. The mitigation ratio shall be 1:1 for compensation through an approved wetland mitigation bank and 2:1 for compensation through an approved in-lieu fee program. The Director, for good cause shown and on a case-by-case basis, may authorize a higher or lower mitigation ratio.

(4) Discharges impacting Class I small streams shall be mitigated through either on site mitigation or off-site mitigation at an approved stream mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the stream that will be affected by the regulated activity. The mitigation ratio shall be 5:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 6:1 or a lower mitigation ratio not less than 4:1.

(5) Discharges impacting Class II small streams shall be mitigated through either on site mitigation or off-site mitigation at an approved stream mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the stream that will be affected by the regulated activity. The mitigation ratio shall be 3:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 3.5:1 or a lower mitigation ratio not less than 2.5:1.

(6) Discharges impacting Class III small streams shall be mitigated through either participation in an approved stream mitigation bank or an approved in-lieu fee program, unless the Department for good cause objects. The mitigation ratio shall be 1:1 for compensation through an approved stream mitigation bank and 2:1 for compensation through an approved in-lieu fee program. The Director, for good cause shown and on a case-by-case basis, may authorize a higher or lower mitigation ratio.

(e) The Agency may override the Department's decision to issue a permit under this Act by denying, restricting or otherwise limiting the scope of the permit in order to prevent violations of Illinois water quality standards, unacceptable adverse impacts to municipal water supplies, shellfish beds and fishery areas including spawning and breeding areas, wildlife, or recreational areas. Before making such determination, the Agency shall consult with the Department. The Agency shall set forth in writing and make public its findings and reasons for making any determination under this subsection.

(f) Individuals may request a wetland delineation and classification from the Department, but are not required to do so. However, failure to do so is not a defense against violation of this Act. The person seeking a wetland delineation, classification, or both shall provide the Department with sufficient information to render a determination. The Department shall notify the person within 15 days of receipt of the request if the request is incomplete. The Department shall, upon receipt of a complete request, provide the person with a determination within 30 days. The Department shall utilize the Corps of Engineers Wetlands Delineation Manual. Any determination under this subsection is a final decision for purposes of appeal under Section 55 of this Act. The Department shall honor delineations by the Corps of Engineers or by Corps of Engineers approved agencies.

(g) Individuals seeking an individual permit shall provide the Department with a complete application, including, at a minimum (i) a map of the area that will be affected by the activity, including wetland and water boundaries for the areas affected and the existing uses and structures; (ii) a wetland delineation made in accordance with the Corps of Engineers Wetland Delineation Manual and this Section; (iii) a description of the proposed activity, including its purpose, the location and dimensions of any structures, grading or fills, drainage, roads, sewers and water supply, parking lots, stormwater facilities, discharge of pollutants and onsite waste disposal; (iv) a description of any public benefit to be derived from the proposed project; and (v) the names and addresses of adjacent landowners as determined by the current tax assessment rolls. The Department shall notify the applicant within 20 days if the permit application is incomplete and provide a reasonable time for the applicant to correct deficiencies in the permit application. Within 90 days of receipt of a complete permit application, the Department shall either issue, deny or issue the permit with conditions. All individual permit decisions are subject to public comment. If a public hearing is held, the deadline to make a permit determination is extended by 45 days. A person may submit concurrent requests for delineation, classification and permit application.

(h) The Department shall evaluate individual permit requests through the following sequence: (i) avoidance of impacts to aquatic resources if a less environmentally damaging practicable alternative exists; (ii) minimization of unavoidable impacts by taking appropriate and practicable steps such as reduction of the footprint of the fill; (iii) compensatory mitigation for any remaining impacts to aquatic resources in accordance with this Act. The Department shall not issue an individual permit pursuant to this Section unless the Agency has certified that the proposed activity will not cause or contribute to a violation of a State water quality standard. The Agency will be deemed to have certified that the proposed activity will not cause or contribute to a violation of a State water quality standard if it has not issued a certification or a denial to issue a certification within 80 days of the filing of a complete permit application under this Section.

(i) Upon request by an applicant, the Department is authorized to issue an after-the-fact permit if it determines that the activities covered by the after-the-fact permit were undertaken and conducted in response to emergency circumstances which constituted an imminent threat to persons, public infrastructure, personal property, or uninterrupted utility service. The request for an after-the-fact permit must be made as soon as reasonably possible after the event. The Department shall require compensatory mitigation.

Section 30. General Permits.

(a) Notwithstanding Section 25, any person who intends to conduct a regulated activity within the State may do so in accordance with a general permit issued by the Department under this Section except for activities in Class I wetlands or small streams.

(b) Permits for all categories of activities, subject to the same permit limitations and conditions, that are the subject of a nationwide permit issued by the COE, in effect on the date of the enactment of this Act, are adopted as general permits covering regulated activities subject to this Act except activities in Class I wetlands or Class I streams. Notwithstanding the foregoing, all such permits will include a predischarge notification requirement and compensatory mitigation, unless the permit states compensatory mitigation is not required because the work is designed to improve water quality. In any case, compensatory mitigation is not required for impacts below 1/10 of an acre.

(c) The Department may adopt general permits, through public notice and comment rulemaking in accordance with the Illinois Administrative Procedure Act, 5 ILCS 100/, covering other activities that would be subject to the same permit limitations and conditions, if it determines that the activities in such a category will cause only minimal adverse environmental effects when performed separately, will have only minimal cumulative adverse effect on the environment, will not cause or contribute to a violation of State water quality standards when performed separately, and will have only a minimal cumulative adverse effect on water quality. The Department shall prescribe best management practices for any general permit issued under this Section. The Department shall include compensatory mitigation requirements in general permits for impact that exceed 1/10 of an acre.

(d) The Department must adopt a general permit for:

(1) Construction or maintenance of access roads for utility lines, substations, or related equipment or Facilities with adequate culverts, bridges or other structures to provide freshwater connectivity and passage for fish or other aquatic life;

(2) Activities for the purpose of preserving and enhancing aviation safety or to prevent an airport hazard; and

(3) Conservation activities, such as habitat restoration and fish passage.

(e) No general permit adopted under paragraphs B, C, or D of this Section shall be for a period of more than 5 years after the date of its adoption; and the Department shall revoke or modify any such general permit, after opportunity for public hearing, if the Department determines that the activities authorized by the general permit have an adverse impact on the environment, cause or contribute to a violation of State water quality standards, or are more appropriately authorized by individual permits.

(f) Compliance with the terms of a general permit shall be deemed compliance with the provisions of this Act if the applicant:

(1) files a predischarge notification in accordance with regulations adopted pursuant to this Act;

(2) files any reports required by the general permit;

(3) complies with any limitations required by the general permit; and

(4) complies with compensatory mitigation requirements.

(g) The Department may respond to a predischarge notification issued under this Section within 30 days after the Department receives the notice.

Section 35. Illinois Wetlands and Streams Advisory Committee; duties; rules.

(a) The Wetlands and Streams Advisory Committee is created, which shall consist of the following 17 voting members appointed by the Governor:

(1) Five members representing the interests of business, industry, real estate and agriculture;

(2) Five members selected from the membership of environmental and conservation groups in the State;

(3) Two members representing counties exercising authority under Section 5-1062 or 5-1062.1 of the Counties Code to establish stormwater management programs;

(4) One member representing municipalities;

(5) One member representing building trades unions; and

(6) Three other members as determined by the Governor.

In addition to the 17 voting members, the Director of the Department of Natural Resources, or his or her designee, and the Director of the Illinois Environmental Protection Agency, or his or her designee, shall be non-voting members of this Committee.

The Committee shall biannually elect from its membership a Chair, who shall not be an employee of the Illinois Environmental Protection Agency or the Department. Members of the Advisory Committee may organize themselves as they deem necessary and shall serve without compensation. The Department shall provide reasonable and necessary staff support to the Committee.

(b) The Committee shall provide support to the Department in developing implementing rules pursuant to Section 45 of this Act. From time to time the Committee shall review, evaluate and make recommendations to the Department:

(1) Regarding changes to State laws, rules, and procedures that relate to this Act; and

(2) Relating to the Department's efforts to implement this Act.

(c) Nothing in this Act shall preclude, at any time, the recommendation, proposal, or adoption of any other rules under Section 50 or deemed necessary for the orderly implementation of this Act.

(d) The Committee shall develop a plan for statewide wetlands protection and shall submit such plan to the Department. The Committee may assist the Department with development of a Memorandum of Agreement with the Corps of Engineers in accordance with Section 25.

(e) The Committee shall assist counties having stormwater management authority under Section 5-1062 or 5-1062.1 of the Counties Code in coordinating and unifying stormwater management regulations adopted thereto, as required in subsection (F) of Section 60.

Section 40. Rulemaking.

(a) The Department shall, in consultation with the Committee:

(1) Propose rules to implement Sections 30 and 40 of this Act within 120 days of passage of this Act, including: (A) Rules for the review, issuance, denial or issuance with conditions of individual permits; and (B) Rules to promulgate, revise or revoke general permits.

(2) Develop rules to administer and prioritize use of funding from the Wetlands and Small Streams Protection Fund pursuant to Section 65 of this Act.

(3) Develop rules to approve and administer mitigation banks and in lieu fee programs under Section 43 of this Act, including:

(A) Criteria that an applicant to operate a mitigation or in lieu fee program under Section 43 of this Act shall meet that are at least as stringent as the Army Corps of Engineers requirements (33 CFR Part 332);

(B) Priority for mitigation banks and in lieu fee programs that restore previously existing wetlands and small streams; and

(C) Surety provisions for mitigation banks and in lieu fee programs;

(4) Develop rules within 120 days of passage of this Act to establish the procedures under which a governmental body with a stormwater management program under Section 5-1062 of the Counties Code shall be recognized to have met the conditions of division (b) of Section 60 of this Act; and

(5) Develop any other rules necessary to administer this Act.

(b) The Department may, in consultation with the Committee, provide by rule for any requirements regarding bonds or letters of credit in favor of the State, including conditions sufficient to secure compliance with conditions and limitations of a permit.

Section 45. Appeal of final Agency decision; judicial review.

(a) Any permit applicant who has been denied a permit in whole or in part, and any person who participated in the permit proceeding and who is aggrieved by a decision of the Department to grant a permit in whole or in part, may appeal the decision to the Director within 60 days of the permit grant or denial. In all such appeals, the burden of persuasion shall be on the party appealing the Department's decision.

(b) A person aggrieved by a final decision made under this Act, including parties that have participated in the permit process if a permit was granted, may seek judicial review of the decision under the Administrative Review Law.

Section 50. Investigation; enforcement.

(a) In accordance with constitutional limitations, the Department shall have authority to enter at all reasonable times upon any private or public property for the purpose of inspecting and investigating to ascertain compliance and possible violations of this Act, implementing regulations, or permits.

(b) The civil penalties provided for in this Section may be recovered in a civil action which may be instituted in a court of competent jurisdiction. The State's Attorney of the county in which the alleged violation occurred, or the Attorney General may at the request of the Department or on his or her own motion, institute a civil action in a court of competent jurisdiction to recover civil penalties and to obtain an injunction to restrain violations of this Act and to compel compliance.

(c) Any person who violates any provision of this Act, any rule adopted hereunder, or any permit or term or condition thereof, shall be liable for a civil penalty not to exceed $10,000 per day of violation. Any such penalty shall be made payable to the Wetlands and Small Streams Protection Fund and shall be deposited into that Fund as provided in Section 65. In assessing a penalty, courts may consider any matters of record including:

(1) The duration and gravity of the violation;

(2) The presence or absence of due diligence on the part of the violator in attempting to comply with the Act;

(3) Any economic benefits accrued by the violator through the violation;

(4) The likely deterrence effect of the penalty; and

(5) Any history on the part of the violator of past violations of this Act.

(d) Violations of this Act, rules adopted hereunder or permits shall not be deemed criminal offenses.

(e) All final orders imposing civil penalties pursuant to this Section shall prescribe the deadline for payment. If any such penalty is not paid within the time prescribed, interest on the penalty shall be charged at the rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act unless the deadline for payment is stayed by a court pending appeal.

(f) The Department may terminate a permit if the permittee violated the terms of the permit, obtained the permit by misrepresentation, or failed to disclose relevant facts.

(g) The Attorney General or States Attorney of the county where the affected wetland or stream is located, may, upon his or her own motion or upon request of the Department, institute a civil action in circuit court for an injunction or other appropriate legal action to restrain a violation of this Act. In the proceeding, the court shall determine whether a violation has been committed or is likely to occur, and shall enter any order it considers necessary to remove the effects of the violation and to prevent the violation from occurring, continuing or being renewed in the future. An order may include a requirement that the violator restore the affected wetland area, including a provision that, if the violator does not comply by restoring the wetland within a reasonable time, the Department may restore the wetland to its condition prior to the violation and the violator shall be liable to the Department for the cost of the restoration. However, the Department retains the right to act to remedy emergency situations, such as threats to public safety, and the violator shall be liable to the Department for the cost of the restoration.

(h) This Act is enforceable under Section 31(d) of the Illinois Environmental Protection Act, 415 ILCS 5/31.

(i) Any penalty assessed under this Act, including costs of wetland restoration and any restoration requirement, shall be recorded by the clerk of the court as a lien against the property and shall not be removed until the penalty is paid or the restoration is completed.

(j) All costs, fees and expenses in connection with an enforcement or restoration action shall be assessed as damages against the violator.

(k) Enforcement actions under this Section may be concurrent or separate.

Section 55. County authority.

(a) Nothing in this Act preempts or denies the right of any governmental body with a stormwater management program under Section 5-1062 of the Counties Code to control or regulate activities in any wetlands within the jurisdiction of the governmental body.

(b) Upon the request of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code, the Director shall, within 30 calendar days of receiving the written request, provide a letter recognizing whether the governmental body's stormwater management program:

(1) Provides wetlands and streams protection consistent with the scope and intent of this Act;

(2) Has an administration and qualified staff to implement the governmental body's stormwater management program; and

(3) Is implementing and enforcing their stormwater management program.

(c) Activities within or affecting wetlands that occur within the jurisdiction of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code that meets the provisions of paragraphs (1), (2), and (3) of subsection (B) of this Section are deemed to be in compliance with the requirements of this Act, but must meet those county stormwater management requirements, at a minimum. This also applies during the period that the Department is considering a county's request under subsection (B), but the requirements of this Act do apply until the county has requested recognition under subsection (B). Lake, Cook, Kane, McHenry, and DuPage Counties are deemed to have requested recognition as of the date of enactment of this Act.

(d) The Director may rescind recognition status, or place conditions on recognition status, after notification, a public hearing and a reasonable opportunity for the county to cure the defect, if the governmental body with a stormwater management program under Section 5-1062 of the Counties Code continues to no longer meet the provisions of paragraphs (1), (2) and (3) of subsection (B) of this Section.

(e) A governmental body with a stormwater management program under Section 5-1062 of the Counties Code that has obtained recognition by the Director under subsection (b) of this Section shall submit an annual report to the Director.

(f) Counties having authority under Section 5-1062 of the Counties Code to adopt a stormwater management program shall seek the assistance of the Chicago Metropolitan Agency for Planning to coordinate and unify regulations adopted pursuant thereto.

(g) Nothing in this Act shall be construed as a limitation or preemption of any home rule power.

(h) The Department may provide technical assistance and grant funding pursuant to Section 65 to governmental bodies with approved programs under this Section.

Section 60. Wetlands and Small Streams Protection Fund.

(a) The Wetlands and Small Streams Protection Fund shall be established as a special fund in the State Treasury, to be managed by the Department, separate and distinct from the General Revenue Fund. Any interest earned by the Wetlands and Small Streams Protection Fund shall be credited to the Fund. The purpose of the Wetlands and Small Streams Protection Fund is to further wetlands and small streams protection and management. Its purpose is to supplement, not supplant, existing Department resources. The Wetlands and Small Streams Protection Fund may not be utilized to pay for compensatory mitigation obligations under this Act.

(b) Pursuant to Section 55, all penalties collected by the Department pursuant to this Act shall be deposited into the Wetlands and Small Streams Protection fund.

(c) The Illinois General Assembly may appropriate additional monies to the Wetlands and Small Streams Protection Fund to implement this Act.

(d) The Department shall utilize the monies in the Wetlands and Small Streams Protection fund to further wetlands and small streams protection and management. Eligible uses include:

(1) Providing technical assistance and grant funding to counties with approved programs under Section 60 to restore, preserve, enhance, protect or maintain wetlands, streams, and upland buffers, particularly Class I areas or wetlands, waters and buffers that provide floodwater storage and flood risk reduction;

(2) Supplementing other State, local or private funding for non-compensatory wetlands and small streams restoration, enhancement, preservation and maintenance;

(3) Matching funds for wetland and stream inventories, mapping, watershed planning and wetland program development grants; and

(4) Staffing and administrative costs for the Department to implement this Act.

Section 65. Review Fee. All inquiries to determine whether or not the proposed activity requires permit authorization by the Department under this Act will be reviewed by the Department free of charge. A permit review fee is required for all permit applications under this Act. The Department shall establish a graduated review fee payment schedule from $260 to $5,000 depending on the intensity of required review and the size of the individual project. Accordingly, highest review fees will be charged for individual permits to authorize major projects. The Department may charge a reasonable fee for wetlands delineation and classification.

Section 90. The State Finance Act is amended by adding Section 5.1015 as follows:

(30 ILCS 105/5.1015 new)

Sec. 5.1015. The Wetlands and Small Streams Protection Fund.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.