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,
 
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 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
 
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 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
 
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 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
 
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 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
 
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 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
 
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 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
 
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 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.
 
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 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
 
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 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
 
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 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;
 
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 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
 
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 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
 
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 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.