093_HB0422eng HB0422 Engrossed LRB093 04535 MKM 04588 b 1 AN ACT concerning wetlands. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5 Wetlands Protection Act. 6 Section 5. Scope. This Act does not apply to property 7 within a municipality with a population greater than 500,000, 8 nor to property within the incorporated or unincorporated 9 area of a county with a population greater than 3,000,000. 10 Section 10. Definitions. For the purposes of this Act: 11 (a) "ADID" means those aquatic sites identified by the 12 United States Environmental Protection Agency and the United 13 States Army Corps of Engineers as areas generally unsuitable 14 for disposal of dredged or fill material in accordance with 15 40 C.F.R. Part 230.80. 16 (b) "Affected property" means any property upon which a 17 regulated activity is conducted. 18 (c) "Agency" means the Illinois Environmental Protection 19 Agency. 20 (d) "Agricultural land" means land that is currently 21 used for normal farming or ranching activities. 22 (e) "Avoidance" means any action taken in a manner such 23 that a regulated activity will not occur. 24 (f) "Bog" means a peat-accumulating wetland that has no 25 significant inflows or outflows and supports acidophilic 26 mosses, particularly sphagnum, resulting in highly acidic 27 conditions. 28 (g) "Commencing such a regulated activity" means any 29 steps taken in preparation of conducting a regulated activity 30 that may impact the affected property, such as cutting, HB0422 Engrossed -2- LRB093 04535 MKM 04588 b 1 filling, pumping of water, and earth movement. 2 (h) "Committee" means the Wetlands Advisory Committee. 3 (i) "Contiguous wetland" means a wetland that is 4 delineated on the affected property and extends beyond the 5 boundary of that property. 6 (j) "Converted wetland" means a wetland that has been 7 drained, dredged, filled, leveled, or otherwise manipulated 8 (including the removal of woody vegetation or any activity 9 that results in impairing or reducing the flow and 10 circulation of water) for the purpose of or with the effect 11 of making possible the production of an agricultural 12 commodity without further application of the manipulations 13 described herein if: (i) such production would not have been 14 possible but for such action, and (ii) before such action 15 such land was wetland, farmed wetland, or farmed-wetland 16 pasture and was neither highly erodible land nor highly 17 erodible cropland. 18 (k) "Corps of Engineers" or "COE" means the United 19 States Army Corps of Engineers. 20 (l) "Cypress swamp" means forested, permanent or 21 semi-permanent bodies of water, with species assemblages 22 characteristic of the Gulf and Southeastern Coastal Plains, 23 including bald cypress, which are restricted to extreme 24 southern Illinois. 25 (m) "Department" means the Illinois Department of 26 Natural Resources. 27 (n) "Director" means the Director of Natural Resources. 28 (o) "Fen" means a wetland fed by an alkaline water 29 source such as a calcareous spring or seep. 30 (p) "Floristic quality index" means an index calculated 31 using the Floristic Quality Assessment Method of assessing 32 floristic integrity (or quality) by summing the numerical 33 quality ratings of all plant species present then dividing 34 the total by the number of native species present (mean HB0422 Engrossed -3- LRB093 04535 MKM 04588 b 1 coefficient of conservatism) or by the square root of the 2 number of native species (floristic quality index). (Taft, 3 J.B., G.S. Wilhelm, D.M. Ladd, and L.A. Masters. 1997. 4 Floristic quality assessment for vegetation in Illinois, a 5 method for assessing vegetation integrity. Erigenia 15: 6 3-95.) 7 (q) "Incidentally created" means created as a result of 8 any normal or routine activity coincidental with the conduct 9 of legitimate business enterprises, except that a wetland or 10 depression created as mitigation for any activity affecting 11 wetlands is not "incidentally created." 12 (r) "Incidental fallback" means the redeposit of small 13 volumes of dredged material that is incidental to excavation 14 activity in waters of the State when such material falls back 15 to substantially the same place as the initial removal. 16 (s) "Isolated wetlands" means those areas that are 17 inundated or saturated by surface or ground water at a 18 frequency or duration sufficient to support, and that under 19 normal circumstances do support, a prevalence of vegetation 20 typically adapted for life in saturated soil conditions, and 21 that are not regulated under the federal Clean Water Act. 22 (t) "Panne" means wet interdunal flats located near Lake 23 Michigan. 24 (u) "Person" means an individual, partnership, 25 co-partnership, firm, company, limited liability company, 26 corporation, association, joint stock company, trust, estate, 27 political subdivision, State agency, or other legal entity, 28 or its legal representative, agent, or assigns. 29 (v) "Prior converted cropland" means a converted wetland 30 where the conversion occurred prior to December 23, 1985, an 31 agricultural commodity has been produced at least once before 32 December 23, 1985, and as of December 23, 1985, the converted 33 wetland did not support woody vegetation and met the 34 following hydrologic criteria: (i) inundation was less than HB0422 Engrossed -4- LRB093 04535 MKM 04588 b 1 15 consecutive days during the growing season or 10% of the 2 growing season, whichever is less, in most years (50% chance 3 or more); and (ii) if a pothole, ponding was less than 7 4 consecutive days during the growing season in most years (50% 5 chance or more) and saturation was less than 14 consecutive 6 days during the growing season most years (50% chance or 7 more). 8 (w) "Regulated activity" means the discharge of dredged 9 or fill material into a wetland, the drainage of a wetland, 10 or excavation of a wetland that results in more than 11 incidental fallback. 12 (x) "Threatened or endangered species" means those 13 species that have been designated as threatened or endangered 14 by the Illinois Endangered Species Protection Board pursuant 15 to the Illinois Endangered Species Protection Act and those 16 species that have been designated as threatened or endangered 17 by the U.S. Fish and Wildlife Service pursuant to the 18 Endangered Species Act. 19 (y) "Upland" means non-wetland, when used to describe a 20 particular land use, or non-hydric, when used to describe a 21 soil type. 22 (z) "Wetlands" means those areas that are inundated or 23 saturated by surface or ground water at a frequency or 24 duration sufficient to support, and that under normal 25 circumstances do support, a prevalence of vegetation 26 typically adapted for life in saturated soil conditions. 27 Section 20. Exemptions. 28 (a) As long as they do not have as their purpose 29 bringing a wetland into a use to which it was not previously 30 subject, the following are not prohibited by or otherwise 31 subject to regulation under this Act: 32 (1) Normal farming, silviculture, and ranching 33 activities such as plowing, seeding, cultivating, minor HB0422 Engrossed -5- LRB093 04535 MKM 04588 b 1 drainage, harvesting for the production of food, fiber, 2 and forest products, or upland soil and water 3 conservation practices. 4 (2) Maintenance, including emergency reconstruction 5 of recently damaged parts, of currently serviceable 6 structures such as dikes, dams, levees, groins, riprap, 7 breakwaters, causeways, and bridge abutments or 8 approaches, and transportation structures. 9 (3) Construction or maintenance of farm or stock 10 ponds or irrigation canals or ditches, or the maintenance 11 of drainage ditches. 12 (4) Construction of temporary sedimentation basins 13 on a construction site that does not include any 14 regulated activities within a wetland. 15 (5) Construction or maintenance of farm roads or 16 forest roads, or temporary roads for moving mining 17 equipment, where such roads are constructed and 18 maintained, in accordance with best management practices, 19 to assure that flow and circulation patterns and chemical 20 and biological characteristics of the wetland are not 21 impaired, that the reach of the wetland is not reduced, 22 and that any adverse effect on the aquatic environment 23 will be otherwise minimized. 24 (6) Except for Class IA and Class IB wetlands, 25 activities for the placement of pilings for linear 26 projects, such as bridges, elevated walkways, and power 27 line structures in accordance with best management 28 practices, to assure that the flow and circulation 29 patterns and chemical and biological characteristics of 30 the wetland are not impaired, that the reach of the 31 wetland is not reduced, and that any adverse effect on 32 the aquatic environment will be otherwise minimized. 33 (7) Installation and maintenance of signs, 34 lighting, and fences and the mowing of vegetation within HB0422 Engrossed -6- LRB093 04535 MKM 04588 b 1 existing maintained rights-of-way. 2 (8) Repair and maintenance of existing buildings, 3 facilities, lawns, and ornamental plantings. 4 (9) Construction projects that have obtained any 5 necessary building permits from applicable local 6 jurisdictions prior to the effective date of this Act. 7 (10) Application of media, including deicing media, 8 on the surface of existing roads for purposes of public 9 safety. 10 (11) Non-surface disturbing surveys and 11 investigations for construction, planning, maintenance, 12 or location of environmental resources. 13 (12) Wetland management practices on lands that are 14 used primarily for the management of waterfowl, other 15 migratory water birds, or furbearers if such practices 16 took place on these lands prior to the effective date of 17 this Act. This includes vegetation management that may 18 include the use of fire, chemical, or mechanical 19 (hydro-axe, bulldozer, rome disk, or similar equipment) 20 removal of invading woody or herbaceous vegetation to 21 maintain a preferred successional stage. Use of 22 chemicals must be by a certified applicator and chemicals 23 must be registered for appropriate use. Clearing or 24 removal of woody vegetation shall be limited to 4-inch 25 dbh (diameter at breast height) or smaller material for 26 the purpose of establishing or maintaining the 27 successional stage of a wetland as an herbaceous wetland 28 vegetated by native moist soil plants or selected 29 wildlife food plants. 30 (b) Any exemption authorized by and pertaining to 31 wetlands that are subject to regulation under the federal 32 Clean Water Act, or regulations promulgated thereunder, shall 33 also be an exemption for the purpose of this Act. 34 (c) The following are not isolated wetlands for purposes HB0422 Engrossed -7- LRB093 04535 MKM 04588 b 1 of this Act: 2 (1) Waste treatment systems, including treatment 3 ponds or lagoons, designed to comply with water quality 4 standards of the State or to remediate a site in 5 accordance with an approved Agency program, and former 6 waste treatment systems that have ceased operation less 7 than 33 years prior to commencement of the proposed 8 activity or which are undergoing remediation in 9 accordance with an approved Agency program. 10 (2) A drainage or irrigation ditch. 11 (3) An artificially irrigated area that would 12 revert to upland if the irrigation ceased. 13 (4) An artificial lake or pond created by 14 excavating or diking upland to collect and retain water 15 for the primary purpose of stock watering, irrigation, 16 wildlife, fire control, ornamentation or landscaping, or 17 as a settling pond. 18 (5) Except for isolated wetlands created pursuant 19 to mining activities regulated in accordance with item 20 (7) below, an incidentally created water-filled 21 depression, unless: (i) ownership of the property 22 containing the depression has been transferred away from 23 the party who incidentally created the water-filled 24 depression, (ii) that ownership transfer occurred more 25 than 12 months prior to the commencement of an otherwise 26 regulated activity, (iii) the use of the property has 27 changed from the use that existed when the property was 28 transferred from the party who incidentally created the 29 water-filled depression, and (iv) the resulting body of 30 water meets the definition in this Act of an isolated 31 wetland; or if the ownership of the property has not been 32 transferred from the party who created the incidentally 33 created water-filled depression, the depression was not 34 created more than 33 years before the date the HB0422 Engrossed -8- LRB093 04535 MKM 04588 b 1 application is received by the Department. 2 (6) Stormwater or spill management systems, 3 including retention and detention basins, ditches and 4 channels, and former stormwater or spill management 5 systems that have ceased operation less than 33 years 6 prior to commencement of the proposed activity or which 7 are undergoing remediation in accordance with an approved 8 Agency program. 9 (7) Waters that undergo mining activities conducted 10 pursuant to a federal, State, regional, or local permit 11 that requires the reclamation of the affected wetlands if 12 the reclamation will be completed within a reasonable 13 period of time after completion of activities at the site 14 and, upon completion of such reclamation, the wetlands 15 will support functions generally equivalent to the 16 functions supported by the wetlands at the time of 17 commencement of such activities. 18 (8) Prior converted cropland. 19 (d) Any activity covered by the Interagency Wetland 20 Policy Act of 1989 is exempt from all of the provisions of 21 this Act. 22 Section 25. Applicability. Until June 30, 2007, the 23 requirements of this Act apply to all isolated wetlands as 24 that term is defined in this Act. In the event that an 25 isolated wetland ceases to meet that definition because it 26 becomes subject to regulation under the federal Clean Water 27 Act, such wetland shall no longer be subject to the 28 provisions of this Act. 29 Beginning July 1, 2007, the requirements of this Act 30 apply to all wetlands as that term is defined in this Act, 31 unless a COE permit is required; provided, however, that if 32 an exemption under Section 20 applies, that exemption shall 33 continue in effect after July 1, 2007. HB0422 Engrossed -9- LRB093 04535 MKM 04588 b 1 The Department on behalf of the State of Illinois may 2 enter into written delegation agreements with the Corps of 3 Engineers under which it may assume all or portions of COE 4 authority under the federal Clean Water Act. Such delegation 5 agreements shall provide, at a minimum, that all delineation, 6 classification, notification, and permitting requirements 7 shall be at least as stringent as those contained in this 8 Act. 9 Section 30. Wetlands delineation, classification, 10 notification, permits. The requirements of this Section 11 apply upon the adoption of rules under Sections 45(c) and 60 12 of this Act, or 270 days from the effective date of this Act, 13 whichever occurs first. 14 (a) The procedures and regulatory criteria for the 15 delineation, classification, notification, and permitting for 16 wetlands shall be conducted in accordance with the provisions 17 of this Section. 18 (b) Any person who intends to conduct a regulated 19 activity within the State may request a determination from 20 the Department as to the existence, location, and surface 21 area of any wetlands on or contiguous to the affected 22 property. Nothing in this Section shall require the person 23 to seek such a determination; however, failure to seek and 24 obtain a determination shall not be a defense against a 25 violation of this Act. 26 The person seeking a determination shall provide the 27 Department with sufficient information to render such a 28 determination. Such information shall include a wetland 29 delineation made in accordance with the COE Wetlands 30 Delineation Manual, Technical Report Y-87-1. Delineation of 31 the portion of a contiguous wetland not on the affected 32 property shall be made to the extent reasonably possible, and 33 methods other than physical onsite evaluations shall be HB0422 Engrossed -10- LRB093 04535 MKM 04588 b 1 considered by the Department. 2 The Department shall provide notice to the applicant as 3 to whether a submitted application is complete. Unless the 4 Department notifies the applicant that the application is 5 incomplete within 15 days of receipt of the application, the 6 application shall be deemed complete. The Department may 7 request additional information as needed to make the 8 completeness determination. 9 The Department shall, upon receipt of a complete 10 determination request, provide the person, within 30 days, 11 with a determination as to the existence, location, and 12 surface area of wetlands located on or contiguous to the 13 affected property. 14 If the Department determines that there are no wetlands 15 on the affected property, any otherwise regulated activity 16 conducted on the property shall not be subject to the 17 provisions of this Act. 18 If the Department determines that there is one or more 19 wetlands on or contiguous to the affected property, the 20 person may apply to the Department for classification of such 21 wetlands. 22 Any determination of a wetland by the Department is a 23 final decision for purposes of appeal. 24 (c) If any person intends to conduct a regulated 25 activity, such person may, prior to commencing such a 26 regulated activity, request that the wetland be classified as 27 Class IA, IB, II, or III in accordance with the provisions of 28 this Section. Nothing in this Section shall require the 29 person to seek such a classification; however, any wetlands 30 not so classified shall be considered Class IA for the 31 purposes of this Act. 32 The person seeking a classification shall provide the 33 Department with sufficient information to render such a 34 classification. Such information shall include a wetland HB0422 Engrossed -11- LRB093 04535 MKM 04588 b 1 delineation made in accordance with the COE Wetlands 2 Delineation Manual, Technical Report Y-87-1. 3 Unless the Department notifies the applicant that the 4 application is incomplete within 15 days of receipt of the 5 application, the application shall be deemed complete. The 6 Department may request additional information as needed to 7 make the completeness determination. The Department shall, 8 upon receipt of a complete classification request, provide 9 the person, within 30 days, with a classification of wetlands 10 located on or contiguous to the affected property. If the 11 Department fails to provide the person with a classification 12 within 30 days, the classification requested by the person 13 shall be deemed granted. 14 Wetlands shall be classified as follows: 15 (1) The Department shall classify a wetland as a 16 Class IA Wetland if and only if: 17 (A) the wetland is or encompasses a bog; 18 (B) the wetland is or encompasses a fen; 19 (C) the wetland is or encompasses a panne; 20 (D) the wetland is or encompasses a cypress 21 swamp; 22 (E) the wetland is or encompasses a Category I 23 Illinois Natural Areas Inventory Site, provided that 24 the Department shall disclose within 5 working days 25 of a request from an applicant, a prospective 26 applicant, or a qualified professional on behalf of 27 an applicant or a prospective applicant whether a 28 site identified by latitude and longitude includes a 29 Category I Illinois Natural Areas Inventory Site; or 30 (F) a threatened or endangered species has 31 been identified in the wetland. 32 (2) The Department shall classify a wetland as a 33 Class IB Wetland if and only if the wetland: 34 (A) is or encompasses an ADID site; HB0422 Engrossed -12- LRB093 04535 MKM 04588 b 1 (B) is or encompasses a Category VI Illinois 2 Natural Area Inventory Site or regional equivalent; 3 provided that the Department shall disclose within 5 4 working days of a request from an applicant, a 5 prospective applicant, or a qualified professional 6 on behalf of an applicant or a prospective applicant 7 whether a site identified by latitude and longitude 8 includes a Category VI Illinois Natural Areas 9 Inventory Site; or 10 (C) has a Floristic Quality Index (FQI) which 11 is equal to or greater than 20 or a mean coefficient 12 of conservatism (Mean C) equal to or greater than 13 3.5, determined in accordance with rules adopted by 14 the Department. 15 (3) The Department shall classify a wetland as a 16 Class II Wetland if and only if the wetland is not a 17 Class I-A, Class I-B, or Class III wetland. 18 (4) The Department shall classify a wetland as a 19 Class III Wetland if and only if: 20 (A) the wetland is not a Class IA or Class 21 IB wetland; and 22 (B) the total size of the wetland, including 23 contiguous areas, is 24 (i) less than 0.25 acre, or 25 (ii) less than 0.5 acre if the wetland is 26 in a county that does not have authority to 27 establish a stormwater management program under 28 Section 5-1062 of the Counties Code and the 29 wetland is in agricultural land. 30 (d) Subject to the provisions of Section 40 regarding 31 general permits, no person may conduct or cause to be 32 conducted a regulated activity within or affecting a wetland 33 in such a manner that the biological or hydrological 34 integrity of the wetland is impaired within the scope of this HB0422 Engrossed -13- LRB093 04535 MKM 04588 b 1 Act, except in accordance with the terms of an individual 2 permit issued by the Department or authorization to proceed 3 as applicable under this Section. 4 (1) Class IA Wetlands: 5 (A) A permit to conduct a regulated activity 6 affecting a Class IA wetland within the scope of 7 this Act shall be granted if documentation is 8 submitted that demonstrates that complete avoidance 9 of impacts to the Class IA wetland precludes all 10 economic use of the entire parcel and that no 11 practicable alternative to wetland modification 12 exists. 13 Based upon a review of the submitted 14 documentation and any other available resources, the 15 Department shall make a determination as to whether 16 the proposed modification represents the least 17 amount of wetland impact required to restore an 18 economic use to the upland portion of the parcel. 19 Wetland losses shall be mitigated at a ratio of 20 4.5:1 and shall be mitigated in kind and within the 21 same watershed as the impacted area restoring, to 22 the maximum degree practicable as determined by the 23 Department, both the type and functions of the 24 wetland that will be affected by the regulatory 25 activity. 26 The Director, for good cause shown and on a 27 case-by-case basis, may authorize an upward or 28 downward departure from the mitigation ratio 29 otherwise required under this subdivision (d)(1), 30 but for a Class IA wetland the Director shall 31 require a mitigation ratio of at least 4:1 and shall 32 not require a mitigation ratio greater than 5:1. 33 (B) No permit under this subdivision (d)(1) 34 may be issued by the Department without a public HB0422 Engrossed -14- LRB093 04535 MKM 04588 b 1 notice and a public hearing. 2 (2) Class IB Wetlands: 3 (A) A permit to conduct a regulated activity 4 affecting a Class IB wetland within the scope of 5 this Act shall be granted if documentation is 6 submitted that demonstrates that no practicable 7 alternative to wetland modification exists. 8 Based upon a review of the submitted 9 documentation and any other available resources, the 10 Department shall make a determination as to whether 11 the proposed modification constitutes the least 12 amount of wetland impact practicable and whether a 13 permit should be granted. 14 Wetland losses shall be mitigated at a ratio of 15 3:1 and shall be mitigated in kind and within the 16 same watershed as the impacted area, restoring both 17 the type and functions of the wetlands that will be 18 affected by the regulated activity. 19 The Director, for good cause shown and on a 20 case-by-case basis, may authorize an upward or 21 downward departure from the mitigation ratio 22 otherwise required under this subdivision (d)(2), 23 but for a Class IB wetland the Director shall 24 require a mitigation ratio of at least 2.5:1 and 25 shall not require a mitigation ratio greater than 26 3.5:1. 27 (B) No permit under this subdivision (d)(2) 28 may be issued by the Department without a public 29 notice and opportunity for public hearing being 30 afforded. The Department shall hold a public 31 hearing concerning a permit application if the 32 proposed activity may have a significant impact upon 33 wetland resources or if the Department determines 34 that a public hearing is otherwise appropriate. HB0422 Engrossed -15- LRB093 04535 MKM 04588 b 1 (3) Class II Wetlands: 2 (A) A permit to conduct a regulated activity 3 affecting a Class II wetland within the scope of 4 this Act shall be granted if documentation is 5 submitted demonstrating that no reasonable 6 alternative to wetland modification exists. 7 Based upon a review of the submitted 8 documentation and any other available resources, the 9 Department shall make a determination as to whether 10 the proposed modification constitutes the least 11 amount of wetland impact practicable and whether a 12 permit should be granted. 13 Wetland losses shall be mitigated at a ratio of 14 1.5:1 and shall be mitigated in kind and within the 15 same watershed as the impacted area, restoring both 16 the type and functions of the wetland that will be 17 affected by the regulated activity. 18 (B) No permit under this subdivision (d)(3) 19 may be issued by the Department without a public 20 notice and opportunity for public hearing being 21 afforded. The Department shall hold a public 22 hearing concerning a permit application if the 23 proposed activity may have a significant impact upon 24 wetland resources or if the Department determines 25 that a public hearing is otherwise appropriate. 26 (4) Class III Wetlands: 27 (A) No regulated activity covered under this 28 Act that will impact an area that has been 29 classified as a Class III wetland may be undertaken 30 without prior notification to the Department. 31 (B) Such notification shall include (1) a 32 sketch that reasonably depicts the area that will be 33 affected by the regulated activity, including 34 wetland and water boundaries for the areas affected HB0422 Engrossed -16- LRB093 04535 MKM 04588 b 1 and the existing land uses and structures; (2) a 2 description of the proposed activity, including its 3 purpose; (3) a description of any public benefit to 4 be derived from the proposed project; and (4) the 5 names and addresses of adjacent landowners as 6 determined by the current tax assessment rolls. 7 (C) Upon receipt of a notification of intent, 8 the Department shall verify that the regulated 9 activity will affect a wetland that it previously 10 classified as Class III. 11 If the Department so verifies, the Department 12 shall send the person, within 30 days of the receipt 13 of such notification, a response stating that the 14 regulated activity may proceed. 15 If the Department cannot so verify, the 16 Department shall send the person, within 30 days of 17 the receipt of such notification, a response stating 18 that no classification has been made by the 19 Department, or that a Classification of IA, IB, or 20 II was made and that the regulated activity may not 21 proceed until either a classification is made 22 pursuant to this Section, or a permit is obtained, 23 as applicable. 24 Failure of the Department to respond to a 25 notification shall be deemed an authorization to 26 proceed. 27 (D) No permit shall be required for a 28 regulated activity covered under this Act that will 29 impact an area that has been classified as a Class 30 III wetland. 31 (e) Within 15 days of the receipt of a permit 32 application, the Department shall determine if an application 33 is complete. To be deemed complete, an application must 34 provide all information, as requested in Department HB0422 Engrossed -17- LRB093 04535 MKM 04588 b 1 application forms, sufficient to evaluate the application. 2 Such information shall include, at a minimum: (1) a map of 3 the area that will be affected by the activity, including 4 wetland and water boundaries for the areas affected and the 5 existing uses and structures. Such information shall include 6 a wetland delineation made in accordance with the COE 7 Wetlands Delineation Manual, Technical Report Y-87-1; (2) a 8 description of the proposed activity, including its purpose, 9 the location and dimensions of any structures, grading or 10 fills, drainage, roads, sewers and water supply, parking 11 lots, stormwater facilities, discharge of pollutants, and 12 onsite waste disposal; (3) a description of any public 13 benefit to be derived from the proposed project; and (4) the 14 names and addresses of adjacent landowners as determined by 15 the current tax assessment rolls. The Department application 16 forms shall be finalized and made available prior to the date 17 on which any application is required. The Department shall 18 provide notice to the applicant as to whether a submitted 19 application is complete. Unless the Department notifies the 20 applicant that the application is incomplete within 20 days 21 of receipt of the application, the application shall be 22 deemed complete. The Department may request additional 23 information as needed to make the completeness determination. 24 The Department may, to the extent practicable, provide the 25 applicant with a reasonable opportunity to correct 26 deficiencies prior to a final determination of completeness. 27 Within 90 days from the receipt of a complete application for 28 permit, the Department shall either issue or deny the permit 29 or issue it with conditions. If a public hearing is held on 30 the application, however, this period shall be extended by 45 31 days. 32 (f) The Department shall not issue a permit pursuant to 33 this Section unless the Agency has certified that the 34 proposed activity will not cause or contribute to a violation HB0422 Engrossed -18- LRB093 04535 MKM 04588 b 1 of any State water quality standard. The Agency will be 2 deemed to have certified that the proposed activity will not 3 cause or contribute to a violation of any State water quality 4 standard if it has not declined in writing to so certify 5 within 80 days of the filing of the application unless the 6 Agency has requested that the applicant supply more 7 information relevant to assessing the water quality impacts 8 of the proposed activity. If a public hearing is held on the 9 application, however, this period shall be extended by 45 10 days. 11 (g) A person may submit concurrent requests for (i) 12 determination and delineation, (ii) classification, and (iii) 13 issuance of a permit or notification. The Department shall 14 act on such combined requests concurrently in accordance with 15 expedited permitting procedures adopted by the Department. 16 (h) Any person may submit an application for an 17 after-the-fact permit to be issued under this Act, and the 18 Department is authorized to issue such an after-the-fact 19 permit if it determines that the activities covered by the 20 after-the-fact permit application were undertaken and 21 conducted in response to emergency circumstances where there 22 may be an imminent threat to persons, public infrastructure, 23 personal property, or uninterrupted utility service that made 24 it impracticable for the applicant to obtain prior 25 authorization under this Act to undertake and conduct such 26 activities. The applicant shall be required to demonstrate 27 that it provided notice to the Department of the emergency 28 circumstances as soon as reasonably possible following the 29 discovery of such circumstances. 30 (i) The Department shall adopt rules to carry out the 31 provisions of this Section in accordance with Section 45 of 32 this Act. 33 Section 35. Surety. The Department may provide by rule HB0422 Engrossed -19- LRB093 04535 MKM 04588 b 1 for any requirements regarding bonds or letters of credit in 2 favor of the State, including conditions sufficient to secure 3 compliance with conditions and limitations of a permit. 4 Section 40. General permits. 5 (a) Notwithstanding Section 30, any person who intends 6 to conduct a regulated activity within the State may do so in 7 accordance with a general permit issued by the Department 8 under this Section. 9 (b) Permits for all categories of activities, subject to 10 the same permit limitations and conditions, that are the 11 subject of a nationwide permit issued by the Corps of 12 Engineers in effect on the date of the enactment of this Act, 13 are adopted as general permits covering regulated activities 14 subject to this Act. 15 (c) The Department may adopt general permits covering 16 other activities that would be subject to the same permit 17 limitations and conditions, if it determines that the 18 activities in such category will cause only minimal adverse 19 environmental effects when performed separately, will have 20 only minimal cumulative adverse effect on the environment, 21 will not cause or contribute to a violation of State water 22 quality standards when performed separately, and will have 23 only a minimal cumulative adverse effect on water quality. 24 The Department may prescribe best management practices for 25 any general permit issued under this Section. The Department 26 shall consider any optional mitigation proposed by an 27 applicant in determining whether the net adverse 28 environmental effects of a proposed regulated activity are 29 minimal. 30 Specifically, the Department must adopt general permits 31 for each of the following: 32 (1) The construction or maintenance of access roads 33 for utility lines, substations or related equipment or HB0422 Engrossed -20- LRB093 04535 MKM 04588 b 1 facilities. 2 (2) Activities for the purpose of preserving and 3 enhancing aviation safety or to prevent an airport 4 hazard. 5 (d) No general permit adopted under this Section shall 6 be for a period of more than 5 years after the date of its 7 issuance. A general permit may be revoked or modified by the 8 Department if, after opportunity for public hearing, the 9 Department determines that the activities authorized by the 10 general permit have an adverse impact on the environment, 11 cause or contribute to a violation of State water quality 12 standards, or are more appropriately authorized by individual 13 permits. 14 (e) Compliance with the terms of a general permit shall 15 be deemed compliance with the provisions of this Act if the 16 applicant (i) files a notice of intent to be covered under 17 the provisions of the general permit in accordance with 18 regulations adopted pursuant to this Act and (ii) files any 19 reports required by the general permit. 20 (f) The Department shall respond to a notice of intent 21 to proceed under a general permit issued under this Section 22 within 30 days after the Department receives the notice. In 23 the event that the Department fails to respond to a notice of 24 intent to proceed within 30 days as required by this 25 subsection (f), the person submitting the notice shall be 26 deemed fully authorized to conduct the activities described 27 in the notice under the terms and conditions of the 28 applicable general permit. 29 Section 45. Wetlands Advisory Committee; duties; rules. 30 (a) There is hereby established a Wetlands Advisory 31 Committee, which shall consist of 17 members appointed by the 32 Governor and 2 non-voting members. 33 The Committee shall include 5 members representing the HB0422 Engrossed -21- LRB093 04535 MKM 04588 b 1 interests of business, industry, real estate, and 2 agriculture. 3 The Committee shall include 5 members selected from the 4 membership of environmental and conservation groups in the 5 State. 6 The Committee shall include 2 members representing 7 counties exercising authority under Section 5-1062 or 8 5-1062.1 of the Counties Code to establish stormwater 9 management programs. 10 The Committee shall include one member representing 11 municipalities. 12 The Committee shall include one member representing 13 building trades unions. 14 The Committee shall include 3 other members as determined 15 by the Governor. 16 The Director of Natural Resources, or his or her 17 designee, and the Director of the Illinois Environmental 18 Protection Agency, or his or her designee, shall be 19 non-voting members of the Committee. 20 The Committee shall biannually elect from its membership 21 a Chair, who shall not be an employee of the Illinois 22 Environmental Protection Agency or the Illinois Department of 23 Natural Resources. 24 Members of the Advisory Committee may organize themselves 25 as they deem necessary and shall serve without compensation. 26 The Department shall provide reasonable and necessary 27 staff support to the Committee. 28 (b) Within 120 days after the effective date of this 29 Act, the Committee shall recommend rules to the Department. 30 From time to time the Committee shall review, evaluate, and 31 make recommendations (i) regarding State laws, rules, and 32 procedures that relate to this Act and (ii) relating to the 33 State's efforts to implement this Act. 34 (c) Within 6 months after the effective date of this HB0422 Engrossed -22- LRB093 04535 MKM 04588 b 1 Act, the Department, after consideration of the 2 recommendations of the Committee (or if the Committee for any 3 reason has not made recommendations, the Department itself), 4 shall adopt any rules required by this Act prescribing 5 procedures and standards for its administration. Nothing in 6 this Act shall preclude, at any time, the recommendation, 7 proposal, or adoption of any other rules deemed necessary for 8 the orderly implementation of this Act. 9 (d) The Committee shall develop a plan for statewide 10 wetlands protection and shall submit such plan to the 11 Department. The Department may seek to obtain a delegation 12 of COE authority under Section 404 of the federal Clean Water 13 Act for all wetlands in Illinois on or before July 1, 2007 in 14 accordance with Section 25 of this Act. 15 (e) The Committee shall assist counties having 16 stormwater management authority under Section 5-1062 or 17 5-1062.1 of the Counties Code in coordinating and unifying 18 stormwater management regulations adopted thereto, as 19 required in Section 65(f) of this Act. 20 Section 50. Appeal of final Department decision; 21 judicial review. 22 (a) Any permit applicant who has been denied a permit in 23 whole or in part, and any person who participated in the 24 permit proceeding and who is aggrieved by a decision of the 25 Department to grant a permit in whole or in part, may appeal 26 the decision to the Director within 35 days of the permit 27 grant or denial. However, the 35-day period for appealing to 28 the Director may be extended by the applicant for a period of 29 time not to exceed 90 days by written notice provided to the 30 Director. In all such appeals, the burden of persuasion 31 shall be on the party appealing the Department's decision. 32 (b) A person aggrieved by a final decision made pursuant 33 to this Act may seek judicial review of the decision pursuant HB0422 Engrossed -23- LRB093 04535 MKM 04588 b 1 to the Administrative Review Law. 2 Section 55. Investigation; enforcement. 3 (a) In accordance with constitutional limitations, the 4 Department shall have authority to enter at all reasonable 5 times upon any private or public property for the purpose of 6 inspecting and investigating to ascertain possible violations 7 of this Act or of rules adopted hereunder, or of permits or 8 terms or conditions thereof. 9 (b) The civil penalties provided for in this Section may 10 be recovered in a civil action which may be instituted in a 11 court of competent jurisdiction. The State's Attorney of the 12 county in which the alleged violation occurred, or the 13 Attorney General, may, at the request of the Department or on 14 his or her own motion, institute a civil action in a court of 15 competent jurisdiction to recover civil penalties and to 16 obtain an injunction to restrain violations of the Act. 17 (c) Any person who violates any provision of this Act or 18 any rule adopted hereunder, or any permit or term or 19 condition thereof, shall be liable for a civil penalty of not 20 to exceed $10,000 per day of violation; such penalties may be 21 made payable to the Wetlands Protection Fund and shall be 22 deposited into that Fund as provided in subsection (j). In 23 determining the appropriate civil penalty to be imposed under 24 this Section, the Court is authorized to consider any matters 25 of record in mitigation or aggravation of penalty, including 26 but not limited to the following factors: 27 (1) The duration and gravity of the violation. 28 (2) The presence or absence of due diligence on the 29 part of the violator in attempting to comply with 30 requirements of this Act and rules adopted hereunder or 31 to secure relief therefrom as provided by this Act. 32 (3) Any economic benefits accrued by the violator 33 through the violation. HB0422 Engrossed -24- LRB093 04535 MKM 04588 b 1 (4) The amount of monetary penalty which will serve 2 to deter further violations by the violator and to 3 otherwise aid in enhancing voluntary compliance with this 4 Act by the violator and other persons similarly subject 5 to this Act. 6 (5) The number, proximity in time, and gravity of 7 previously adjudicated violations of this Act by the 8 violator. 9 (d) Any violation of any provision of this Act or any 10 rule adopted hereunder, or any permit or term or condition 11 thereof, shall not be deemed a criminal offense. 12 (e) All final orders imposing civil penalties pursuant 13 to this Section shall prescribe the time for payment of such 14 penalties. If any such penalty is not paid within the time 15 prescribed, interest on such penalty at the rate set forth in 16 subsection (a) of Section 1003 of the Illinois Income Tax Act 17 shall be paid for the period from the date payment is due 18 until the date payment is received. However, if the time for 19 payment is stayed during the pendency of an appeal, interest 20 shall not accrue during such stay. 21 (f) The Department may terminate a permit if the holder 22 substantially violates any condition of the permit, obtains a 23 permit by misrepresentation, or fails to disclose relevant 24 facts. 25 (g) The Attorney General, or the State's Attorney of the 26 county where the affected wetland is located, may, upon his 27 or her own motion or upon request of the Department, 28 institute a civil action in circuit court for an injunction 29 or other appropriate legal action to restrain a violation of 30 this Act or of any rule adopted under this Act. In the 31 proceeding the court shall determine whether a violation has 32 been committed or is likely to occur, and shall enter any 33 order it considers necessary to remove the effects of the 34 violation and to prevent the violation from occurring, HB0422 Engrossed -25- LRB093 04535 MKM 04588 b 1 continuing, or being renewed in the future. An order may 2 include a requirement that the violator restore the affected 3 wetland area, including a provision that, if the violator 4 does not comply by restoring the wetland within a reasonable 5 time, the Department may restore the wetland to its condition 6 prior to the violation and the violator shall be liable to 7 the Department for the cost of restoration. 8 (h) Any penalty assessed pursuant to this Act, including 9 costs of wetland restoration and any restoration requirement, 10 shall be recorded by the clerk of the court as a lien against 11 the land and shall not be removed until the penalty is paid 12 or the restoration is completed. 13 (i) All costs, fees, and expenses in connection with an 14 enforcement or restoration action shall be assessed as 15 damages against the violator. 16 (j) All penalties collected under this Section shall be 17 deposited into the Wetlands Protection Fund. 18 (k) Enforcement actions under this Section may be 19 concurrent or separate. 20 Section 60. Fees. 21 (a) Within 90 days after the effective date of this Act 22 the Department shall propose to the Illinois Pollution 23 Control Board, and within 6 months of receiving that proposal 24 the Board shall adopt by rule: 25 (1) a minimal processing fee for notification 26 regarding Class III Wetlands and for processing a notice 27 of intent to proceed under a general permit; and 28 (2) a schedule of permit fees for single regulated 29 activities in Class IA, Class IB, and Class II wetlands. 30 (b) These fees shall be set at levels that allow the 31 wetlands program to operate financially on a self-sustaining 32 basis. The Department shall annually review the fees to 33 determine whether the wetlands program is operating HB0422 Engrossed -26- LRB093 04535 MKM 04588 b 1 financially on a self-sustaining basis, and it may propose 2 any necessary changes in the fees to the Illinois Pollution 3 Control Board. 4 Section 65. County authority. 5 (a) Nothing in this Act preempts or denies the right of 6 any governmental body with a stormwater management program 7 under Section 5-1062 of the Counties Code to control or 8 regulate activities in any wetlands within the jurisdiction 9 of the governmental body. 10 (b) Upon the request of a governmental body with a 11 stormwater management program under Section 5-1062 of the 12 Counties Code, the Director shall, within 30 calendar days of 13 receiving the request, provide a letter recognizing whether 14 the governmental body's stormwater management program: 15 (1) provides wetlands protection consistent with 16 the intent of this Act; and 17 (2) has an administration and qualified staff to 18 implement the governmental body's stormwater management 19 program. 20 (b-5) After consultation with the Department of Natural 21 Resources, the General Assembly finds and declares that the 22 stormwater management programs implemented by DuPage, Lake, 23 and Kane Counties under Section 5-1062 of the Counties Code, 24 as they exist at the time of the passage of this Act, meet 25 the requirements of subsection (b), and therefore they shall 26 be deemed to have received recognition and approval under 27 that subsection without further action by the Department. 28 (c) Activities within or affecting wetlands that occur 29 within the jurisdiction of a governmental body with a 30 stormwater management program under Section 5-1062 of the 31 Counties Code that meets the provisions of subdivisions 32 (b)(1) and (b)(2) of this Section are exempt from the 33 requirements of this Act, but must meet those county HB0422 Engrossed -27- LRB093 04535 MKM 04588 b 1 stormwater management requirements, at a minimum. This 2 exemption also applies during the period that the Department 3 is considering a county's request under subsection (b), but 4 the requirements of this Act do apply until the county has 5 requested recognition under subsection (b), unless the county 6 has received immediate recognition under subsection (b-5) of 7 this Section. 8 (d) The Director may rescind recognition status in the 9 event that the governmental body with a stormwater management 10 program under Section 5-1062 of the Counties Code no longer 11 meets the provisions of subdivisions (b)(1) and (b)(2) of 12 this Section. 13 (e) A governmental body with a stormwater management 14 program under Section 5-1062 of the Counties Code that has 15 obtained recognition by the Director under subsection (b) of 16 this Section shall submit an annual report to the Director. 17 (f) Counties having authority under Section 5-1062 of 18 the Counties Code to adopt a stormwater management program 19 shall seek with the assistance of the Northeastern Illinois 20 Planning Commission to coordinate and unify regulations 21 adopted pursuant thereto. 22 (g) Nothing in this Act shall be construed as a 23 limitation or preemption of any home rule power. 24 Section 70. Wetlands Protection Fund. All fees and 25 penalties collected by the Department pursuant to this Act 26 shall be deposited into the Wetlands Protection Fund, which 27 is hereby created as a special fund in the State Treasury. 28 In addition to any moneys that may be appropriated from the 29 General Revenue Fund, the Illinois General Assembly shall 30 appropriate moneys in the Wetlands Protection Fund to the 31 Department in amounts deemed necessary to implement this Act. 32 Section 95. The State Finance Act is amended by adding HB0422 Engrossed -28- LRB093 04535 MKM 04588 b 1 Section 5.595 as follows: 2 (30 ILCS 105/5.595 new) 3 Sec. 5.595. The Wetlands Protection Fund. 4 Section 97. Severability. The provisions of this Act 5 are severable under Section 1.31 of the Statute on Statutes. 6 Section 99. Effective date. This Act takes effect upon 7 becoming law.