093_HB0422ham001

 










                                     LRB093 04535 EFG 16318 a

 1                     AMENDMENT TO HOUSE BILL 422

 2        AMENDMENT NO.     .  Amend House Bill  422  by  replacing
 3    the title with the following:
 4        "AN ACT concerning wetlands."; and

 5    by  replacing  everything  after the enacting clause with the
 6    following:

 7        "Section 1.  Short title.  This Act may be cited  as  the
 8    Wetlands Protection Act.

 9        Section  5.  Scope.  This  Act does not apply to property
10    within a municipality with a population greater than 500,000,
11    nor to property within  the  incorporated  or  unincorporated
12    area of a county with a population greater than 3,000,000.

13        Section 10.  Definitions.  For the purposes of this Act:
14        (a)  "ADID"  means  those aquatic sites identified by the
15    United States Environmental Protection Agency and the  United
16    States  Army Corps of Engineers as areas generally unsuitable
17    for disposal of dredged or fill material in  accordance  with
18    40 C.F.R. Part 230.80.
19        (b)  "Affected  property" means any property upon which a
20    regulated activity is conducted.
 
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 1        (c)  "Agency" means the Illinois Environmental Protection
 2    Agency.
 3        (d)  "Agricultural land" means  land  that  is  currently
 4    used for normal farming or ranching activities.
 5        (e)  "Avoidance"  means any action taken in a manner such
 6    that a regulated activity will not occur.
 7        (f)  "Bog" means a peat-accumulating wetland that has  no
 8    significant  inflows  or  outflows  and  supports acidophilic
 9    mosses, particularly sphagnum,  resulting  in  highly  acidic
10    conditions.
11        (g)  "Commencing  such  a  regulated  activity" means any
12    steps taken in preparation of conducting a regulated activity
13    that may impact  the  affected  property,  such  as  cutting,
14    filling, pumping of water, and earth movement.
15        (h)  "Committee" means the Wetlands Advisory Committee.
16        (i)  "Contiguous   wetland"   means  a  wetland  that  is
17    delineated on the affected property and  extends  beyond  the
18    boundary of that property.
19        (j)  "Converted  wetland"  means  a wetland that has been
20    drained, dredged, filled, leveled, or  otherwise  manipulated
21    (including  the  removal  of woody vegetation or any activity
22    that  results  in  impairing  or  reducing   the   flow   and
23    circulation  of  water) for the purpose of or with the effect
24    of  making  possible  the  production  of   an   agricultural
25    commodity  without  further  application of the manipulations
26    described herein if: (i) such production would not have  been
27    possible  but  for  such  action, and (ii) before such action
28    such land was  wetland,  farmed  wetland,  or  farmed-wetland
29    pasture  and  was  neither  highly  erodible  land nor highly
30    erodible cropland.
31        (k)  "Corps of  Engineers"  or  "COE"  means  the  United
32    States Army Corps of Engineers.
33        (l)  "Cypress   swamp"   means   forested,  permanent  or
34    semi-permanent bodies  of  water,  with  species  assemblages
 
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 1    characteristic  of  the Gulf and Southeastern Coastal Plains,
 2    including bald  cypress,  which  are  restricted  to  extreme
 3    southern Illinois.
 4        (m)  "Department"   means   the  Illinois  Department  of
 5    Natural Resources.
 6        (n)  "Director" means the Director of Natural Resources.
 7        (o)  "Fen" means a  wetland  fed  by  an  alkaline  water
 8    source such as a calcareous spring or seep.
 9        (p)  "Flatwoods"  means  an  area of forest or savanna on
10    level or nearly level ground, with an impermeable  or  slowly
11    permeable  soil  layer,  resulting in a shallow perched water
12    table and where plants and animals are  adapted  to  seasonal
13    fluctuation  between  wet and dry conditions.  Characteristic
14    vegetation  in  a  flatwoods  includes  at  least  3  of  the
15    following species:  black ash, button bush, white oak,  swamp
16    white  oak,  pin  oak,  post  oak, black jack oak, black gum,
17    winterberry, lowbush blueberry,  stout  wood  reed,  cinnamon
18    fern,   Carex  muskingumensis,  Canada  mayflower,  partridge
19    berry, and purple fringed orchid.
20        (q)  "Floristic quality index" means an index  calculated
21    using  the  Floristic  Quality Assessment Method of assessing
22    floristic integrity (or quality)  by  summing  the  numerical
23    quality  ratings  of  all plant species present then dividing
24    the total by the  number  of  native  species  present  (mean
25    coefficient  of  conservatism)  or  by the square root of the
26    number of native species (floristic quality index).    (Taft,
27    J.B.,  G.S.  Wilhelm,  D.M.  Ladd,  and  L.A. Masters.  1997.
28    Floristic quality assessment for vegetation  in  Illinois,  a
29    method  for  assessing  vegetation  integrity.  Erigenia  15:
30    3-95.)
31        (r)  "Incidentally  created" means created as a result of
32    any normal or routine activity coincidental with the  conduct
33    of  legitimate business enterprises, except that a wetland or
34    depression created as mitigation for any  activity  affecting
 
                            -4-      LRB093 04535 EFG 16318 a
 1    wetlands is not "incidentally created."
 2        (s)  "Incidental  fallback"  means the redeposit of small
 3    volumes of dredged material that is incidental to  excavation
 4    activity in waters of the State when such material falls back
 5    to substantially the same place as the initial removal.
 6        (t)  "Isolated  wetlands"  means  those  areas  that  are
 7    inundated  or  saturated  by  surface  or  ground  water at a
 8    frequency or duration sufficient to support, and  that  under
 9    normal  circumstances  do support, a prevalence of vegetation
10    typically adapted for life in saturated soil conditions,  and
11    that are not regulated under the federal Clean Water Act.
12        (u)  "Panne" means wet interdunal flats located near Lake
13    Michigan.
14        (v)  "Person"    means    an   individual,   partnership,
15    co-partnership, firm,  company,  limited  liability  company,
16    corporation, association, joint stock company, trust, estate,
17    political  subdivision,  State agency, or other legal entity,
18    or its legal representative, agent, or assigns.
19        (w)  "Prior converted cropland" means a converted wetland
20    where the conversion occurred prior to December 23, 1985,  an
21    agricultural commodity has been produced at least once before
22    December 23, 1985, and as of December 23, 1985, the converted
23    wetland   did  not  support  woody  vegetation  and  met  the
24    following hydrologic criteria: (i) inundation was  less  than
25    15  consecutive  days during the growing season or 10% of the
26    growing season, whichever is less, in most years (50%  chance
27    or  more);  and  (ii)  if  a pothole, ponding was less than 7
28    consecutive days during the growing season in most years (50%
29    chance or more) and saturation was less than  14  consecutive
30    days  during  the  growing  season  most years (50% chance or
31    more).
32        (x)  "Regulated activity" means the discharge of  dredged
33    or  fill  material into a wetland, the drainage of a wetland,
34    or  excavation  of  a  wetland  that  results  in  more  than
 
                            -5-      LRB093 04535 EFG 16318 a
 1    incidental fallback.
 2        (y)  "Threatened  or  endangered  species"  means   those
 3    species that have been designated as threatened or endangered
 4    by  the Illinois Endangered Species Protection Board pursuant
 5    to the Illinois Endangered Species Protection Act  and  those
 6    species that have been designated as threatened or endangered
 7    by  the  U.S.  Fish  and  Wildlife  Service  pursuant  to the
 8    Endangered Species Act.
 9        (z)  "Upland" means non-wetland, when used to describe  a
10    particular  land  use, or non-hydric, when used to describe a
11    soil type.
12        (aa)  "Wetlands" means those areas that are inundated  or
13    saturated  by  surface  or  ground  water  at  a frequency or
14    duration  sufficient  to  support,  and  that  under   normal
15    circumstances   do   support,   a  prevalence  of  vegetation
16    typically adapted for life in saturated soil conditions.

17        Section 20.  Exemptions.
18        (a)  As long  as  they  do  not  have  as  their  purpose
19    bringing  a wetland into a use to which it was not previously
20    subject, the following are not  prohibited  by  or  otherwise
21    subject to regulation under this Act:
22             (1)  Normal   farming,  silviculture,  and  ranching
23        activities such as plowing, seeding,  cultivating,  minor
24        drainage,  harvesting  for the production of food, fiber,
25        and  forest  products,   or   upland   soil   and   water
26        conservation practices.
27             (2)  Maintenance, including emergency reconstruction
28        of  recently  damaged  parts,  of  currently  serviceable
29        structures  such  as dikes, dams, levees, groins, riprap,
30        breakwaters,   causeways,   and   bridge   abutments   or
31        approaches, and transportation structures.
32             (3)  Construction or maintenance of  farm  or  stock
33        ponds or irrigation canals or ditches, or the maintenance
 
                            -6-      LRB093 04535 EFG 16318 a
 1        of drainage ditches.
 2             (4)  Construction  of temporary sedimentation basins
 3        on  a  construction  site  that  does  not  include   any
 4        regulated activities within a wetland.
 5             (5)  Construction  or  maintenance  of farm roads or
 6        forest  roads,  or  temporary  roads  for  moving  mining
 7        equipment,  where  such   roads   are   constructed   and
 8        maintained, in accordance with best management practices,
 9        to assure that flow and circulation patterns and chemical
10        and  biological  characteristics  of  the wetland are not
11        impaired, that the reach of the wetland is  not  reduced,
12        and  that  any  adverse effect on the aquatic environment
13        will be otherwise minimized.
14             (6)  Except for Class  IA  and  Class  IB  wetlands,
15        activities  for  the  placement  of  pilings  for  linear
16        projects,  such  as bridges, elevated walkways, and power
17        line  structures  in  accordance  with  best   management
18        practices,  to  assure  that  the  flow  and  circulation
19        patterns  and  chemical and biological characteristics of
20        the wetland are not  impaired,  that  the  reach  of  the
21        wetland  is  not  reduced, and that any adverse effect on
22        the aquatic environment will be otherwise minimized.
23             (7)  Installation   and   maintenance   of    signs,
24        lighting,  and fences and the mowing of vegetation within
25        existing maintained rights-of-way.
26             (8)  Repair and maintenance of  existing  buildings,
27        facilities, lawns, and ornamental plantings.
28             (9)  Construction  projects  that  have obtained any
29        necessary  building   permits   from   applicable   local
30        jurisdictions prior to the effective date of this Act.
31             (10)  Application of media, including deicing media,
32        on  the  surface of existing roads for purposes of public
33        safety.
34             (11)  Non-surface     disturbing     surveys     and
 
                            -7-      LRB093 04535 EFG 16318 a
 1        investigations for construction,  planning,  maintenance,
 2        or location of environmental resources.
 3             (12)  Wetland management practices on lands that are
 4        used  primarily  for  the  management of waterfowl, other
 5        migratory water birds, or furbearers  if  such  practices
 6        took  place on these lands prior to the effective date of
 7        this Act.  This includes vegetation management  that  may
 8        include   the   use  of  fire,  chemical,  or  mechanical
 9        (hydro-axe, bulldozer, rome disk, or  similar  equipment)
10        removal  of  invading  woody  or herbaceous vegetation to
11        maintain  a  preferred  successional   stage.    Use   of
12        chemicals must be by a certified applicator and chemicals
13        must  be  registered  for  appropriate  use.  Clearing or
14        removal of woody vegetation shall be  limited  to  4-inch
15        dbh  (diameter  at breast height) or smaller material for
16        the  purpose   of   establishing   or   maintaining   the
17        successional  stage of a wetland as an herbaceous wetland
18        vegetated  by  native  moist  soil  plants  or   selected
19        wildlife food plants.
20        (b)  Any   exemption  authorized  by  and  pertaining  to
21    wetlands that are subject to  regulation  under  the  federal
22    Clean Water Act, or regulations promulgated thereunder, shall
23    also be an exemption for the purpose of this Act.
24        (c)  The following are not isolated wetlands for purposes
25    of this Act:
26             (1)  Waste  treatment  systems,  including treatment
27        ponds or lagoons, designed to comply with  water  quality
28        standards  of  the  State  or  to  remediate  a  site  in
29        accordance  with  an  approved Agency program, and former
30        waste treatment systems that have ceased  operation  less
31        than  33  years  prior  to  commencement  of the proposed
32        activity  or  which   are   undergoing   remediation   in
33        accordance with an approved Agency program.
34             (2)  A drainage or irrigation ditch.
 
                            -8-      LRB093 04535 EFG 16318 a
 1             (3)  An   artificially  irrigated  area  that  would
 2        revert to upland if the irrigation ceased.
 3             (4)  An  artificial  lake   or   pond   created   by
 4        excavating  or  diking upland to collect and retain water
 5        for the primary purpose of  stock  watering,  irrigation,
 6        wildlife,  fire control, ornamentation or landscaping, or
 7        as a settling pond.
 8             (5)  Except for isolated wetlands  created  pursuant
 9        to  mining  activities  regulated in accordance with item
10        (7)   below,   an   incidentally   created   water-filled
11        depression,  unless:  (i)  ownership  of   the   property
12        containing  the depression has been transferred away from
13        the  party  who  incidentally  created  the  water-filled
14        depression, (ii) that ownership  transfer  occurred  more
15        than  12 months prior to the commencement of an otherwise
16        regulated activity, (iii) the use  of  the  property  has
17        changed  from  the use that existed when the property was
18        transferred from the party who incidentally  created  the
19        water-filled  depression,  and (iv) the resulting body of
20        water meets the definition in this  Act  of  an  isolated
21        wetland; or if the ownership of the property has not been
22        transferred  from  the party who created the incidentally
23        created water-filled depression, the depression  was  not
24        created   more   than   33  years  before  the  date  the
25        application is received by the Department.
26             (6)  Stormwater   or   spill   management   systems,
27        including retention and  detention  basins,  ditches  and
28        channels,  and  former  stormwater  or  spill  management
29        systems  that  have  ceased  operation less than 33 years
30        prior to commencement of the proposed activity  or  which
31        are undergoing remediation in accordance with an approved
32        Agency program.
33             (7)  Waters that undergo mining activities conducted
34        pursuant  to  a federal, State, regional, or local permit
 
                            -9-      LRB093 04535 EFG 16318 a
 1        that requires the reclamation of the affected wetlands if
 2        the reclamation will be  completed  within  a  reasonable
 3        period of time after completion of activities at the site
 4        and,  upon  completion  of such reclamation, the wetlands
 5        will  support  functions  generally  equivalent  to   the
 6        functions  supported  by  the  wetlands  at  the  time of
 7        commencement of such activities.
 8             (8)  Prior converted cropland.

 9        Section 25.  Applicability.  Until  June  30,  2007,  the
10    requirements  of  this  Act apply to all isolated wetlands as
11    that term is defined in this  Act.   In  the  event  that  an
12    isolated  wetland  ceases  to meet that definition because it
13    becomes subject to regulation under the federal  Clean  Water
14    Act,   such  wetland  shall  no  longer  be  subject  to  the
15    provisions of this Act.
16        Beginning July 1, 2007,  the  requirements  of  this  Act
17    apply  to  all  wetlands as that term is defined in this Act,
18    unless a COE permit is required; provided, however,  that  if
19    an  exemption  under Section 20 applies, that exemption shall
20    continue in effect after July 1, 2007.
21        The Department on behalf of the  State  of  Illinois  may
22    enter  into  written  delegation agreements with the Corps of
23    Engineers under which it may assume all or  portions  of  COE
24    authority under the federal Clean Water Act.  Such delegation
25    agreements shall provide, at a minimum, that all delineation,
26    classification,  notification,  and  permitting  requirements
27    shall  be  at  least  as stringent as those contained in this
28    Act.

29        Section   30.  Wetlands   delineation,    classification,
30    notification,  permits.    The  requirements  of this Section
31    apply upon the adoption of rules under Section 45(c) of  this
32    Act,  or  270  days  from  the  effective  date  of this Act,
 
                            -10-     LRB093 04535 EFG 16318 a
 1    whichever occurs first.
 2        (a)  The  procedures  and  regulatory  criteria  for  the
 3    delineation, classification, notification, and permitting for
 4    wetlands shall be conducted in accordance with the provisions
 5    of this Section.
 6        (b)  Any  person  who  intends  to  conduct  a  regulated
 7    activity within the State may request  a  determination  from
 8    the  Department  as  to  the existence, location, and surface
 9    area of  any  wetlands  on  or  contiguous  to  the  affected
10    property.   Nothing  in this Section shall require the person
11    to seek such a determination; however, failure  to  seek  and
12    obtain  a  determination  shall  not  be  a defense against a
13    violation of this Act.
14        The person seeking  a  determination  shall  provide  the
15    Department  with  sufficient  information  to  render  such a
16    determination.  Such  information  shall  include  a  wetland
17    delineation   made   in  accordance  with  the  COE  Wetlands
18    Delineation Manual, Technical Report Y-87-1.  Delineation  of
19    the  portion  of  a  contiguous  wetland  not on the affected
20    property shall be made to the extent reasonably possible, and
21    methods other  than  physical  onsite  evaluations  shall  be
22    considered by the Department.
23        The  Department  shall provide notice to the applicant as
24    to whether a submitted application is  complete.  Unless  the
25    Department  notifies  the  applicant  that the application is
26    incomplete within 15 days of receipt of the application,  the
27    application  shall  be  deemed  complete.  The Department may
28    request  additional  information  as  needed  to   make   the
29    completeness determination.
30        The   Department   shall,  upon  receipt  of  a  complete
31    determination request, provide the person,  within  30  days,
32    with  a  determination  as  to  the  existence, location, and
33    surface area of wetlands located  on  or  contiguous  to  the
34    affected property.
 
                            -11-     LRB093 04535 EFG 16318 a
 1        If  the  Department determines that there are no wetlands
 2    on the affected property, any  otherwise  regulated  activity
 3    conducted  on  the  property  shall  not  be  subject  to the
 4    provisions of this Act.
 5        If the Department determines that there is  one  or  more
 6    wetlands  on  or  contiguous  to  the  affected property, the
 7    person may apply to the Department for classification of such
 8    wetlands.
 9        Any determination of a wetland by  the  Department  is  a
10    final decision for purposes of appeal.
11        (c)  If   any  person  intends  to  conduct  a  regulated
12    activity,  such  person  may,  prior  to  commencing  such  a
13    regulated activity, request that the wetland be classified as
14    Class IA, IB, II, or III in accordance with the provisions of
15    this Section.  Nothing in  this  Section  shall  require  the
16    person  to  seek such a classification; however, any wetlands
17    not so classified  shall  be  considered  Class  IA  for  the
18    purposes of this Act.
19        The  person  seeking  a  classification shall provide the
20    Department with  sufficient  information  to  render  such  a
21    classification.  Such  information  shall  include  a wetland
22    delineation  made  in  accordance  with  the   COE   Wetlands
23    Delineation Manual, Technical Report Y-87-1.
24        Unless  the  Department  notifies  the applicant that the
25    application is incomplete within 15 days of  receipt  of  the
26    application,  the  application  shall be deemed complete. The
27    Department may request additional information  as  needed  to
28    make  the  completeness  determination. The Department shall,
29    upon receipt of a complete  classification  request,  provide
30    the person, within 30 days, with a classification of wetlands
31    located  on  or  contiguous to the affected property.  If the
32    Department fails to provide the person with a  classification
33    within  30  days,  the classification requested by the person
34    shall be deemed granted.
 
                            -12-     LRB093 04535 EFG 16318 a
 1        Wetlands shall be classified as follows:
 2             (1)  The Department shall classify a  wetland  as  a
 3        Class IA Wetland if and only if:
 4                  (A)  the wetland is or encompasses a bog;
 5                  (B)  the wetland is or encompasses a fen;
 6                  (C)  the wetland is or encompasses a panne;
 7                  (D)  the  wetland  is  or encompasses a cypress
 8             swamp;
 9                  (E)  the wetland is or encompasses a flatwoods;
10                  (F)  the wetland is or encompasses a Category I
11             Illinois Natural Areas Inventory Site, provided that
12             the Department shall disclose within 5 working  days
13             of  a  request  from  an  applicant,  a  prospective
14             applicant,  or a qualified professional on behalf of
15             an applicant or a prospective  applicant  whether  a
16             site identified by latitude and longitude includes a
17             Category I Illinois Natural Areas Inventory Site; or
18                  (G)  a  threatened  or  endangered  species has
19             been identified in the wetland.
20               (2)  The Department shall classify a wetland as  a
21        Class IB Wetland if and only if the wetland:
22                  (A)  is or encompasses an ADID site;
23                  (B)  is  or  encompasses a Category VI Illinois
24             Natural Area Inventory Site or regional  equivalent;
25             provided that the Department shall disclose within 5
26             working  days  of  a  request  from  an applicant, a
27             prospective applicant, or a  qualified  professional
28             on behalf of an applicant or a prospective applicant
29             whether  a site identified by latitude and longitude
30             includes  a  Category  VI  Illinois  Natural   Areas
31             Inventory Site; or
32                  (C)  has  a Floristic Quality Index (FQI) which
33             is equal to or greater than 20 or a mean coefficient
34             of conservatism (Mean C) equal to  or  greater  than
 
                            -13-     LRB093 04535 EFG 16318 a
 1             3.5,  determined in accordance with rules adopted by
 2             the Department.
 3               (3)  The Department shall classify a wetland as  a
 4        Class  II  Wetland  if  and  only if the wetland is not a
 5        Class I-A, Class I-B, or Class III wetland.
 6               (4)  The Department shall classify a wetland as  a
 7        Class III Wetland if and only if:
 8                    (A)  the  wetland  is not a Class IA or Class
 9             IB wetland; and
10                    (B)  the total size of the wetland, including
11             contiguous areas, is
12                       (i)  less than 0.25 acre, or
13                       (ii)  less than 0.5 acre if the wetland is
14                  in a county that does  not  have  authority  to
15                  establish a stormwater management program under
16                  Section  5-1062  of  the  Counties Code and the
17                  wetland is in  or  contiguous  to  agricultural
18                  land.
19        (d)  Subject  to  the  provisions of Section 40 regarding
20    general permits,  no  person  may  conduct  or  cause  to  be
21    conducted  a regulated activity within or affecting a wetland
22    in  such  a  manner  that  the  biological  or   hydrological
23    integrity of the wetland is impaired within the scope of this
24    Act,  except  in  accordance  with the terms of an individual
25    permit issued by the Department or authorization  to  proceed
26    as applicable under this Section.
27        (1)  Class IA Wetlands:
28                  (A)  A  permit  to conduct a regulated activity
29             affecting a Class IA wetland  within  the  scope  of
30             this  Act  shall  be  granted  if  documentation  is
31             submitted  that demonstrates that complete avoidance
32             of impacts to the Class  IA  wetland  precludes  all
33             economic  use  of  the  entire  parcel  and  that no
34             practicable  alternative  to  wetland   modification
 
                            -14-     LRB093 04535 EFG 16318 a
 1             exists.
 2                  Based   upon   a   review   of   the  submitted
 3             documentation and any other available resources, the
 4             Department shall make a determination as to  whether
 5             the   proposed  modification  represents  the  least
 6             amount of wetland  impact  required  to  restore  an
 7             economic use to the upland portion of the parcel.
 8                  Wetland losses shall be mitigated at a ratio of
 9             4.5:1  and shall be mitigated in kind and within the
10             same watershed as the impacted  area  restoring,  to
11             the  maximum degree practicable as determined by the
12             Department, both  the  type  and  functions  of  the
13             wetland  that  will  be  affected  by the regulatory
14             activity.
15                  The Director, for good cause  shown  and  on  a
16             case-by-case  basis,  may  authorize  an  upward  or
17             downward   departure   from   the  mitigation  ratio
18             otherwise required under  this  subdivision  (d)(1),
19             but  for  a  Class  IA  wetland  the  Director shall
20             require a mitigation ration  of  at  least  4:1  and
21             shall  not  require  a mitigation ratio greater than
22             5:1.
23                  (B)  No permit under  this  subdivision  (d)(1)
24             may  be  issued  by  the Department without a public
25             notice and a public hearing.
26        (2)  Class IB Wetlands:
27                  (A)  A permit to conduct a  regulated  activity
28             affecting  a  Class  IB  wetland within the scope of
29             this  Act  shall  be  granted  if  documentation  is
30             submitted  that  demonstrates  that  no  practicable
31             alternative to wetland modification exists.
32                  Based  upon   a   review   of   the   submitted
33             documentation and any other available resources, the
34             Department  shall make a determination as to whether
 
                            -15-     LRB093 04535 EFG 16318 a
 1             the  proposed  modification  constitutes  the  least
 2             amount of wetland impact practicable and  whether  a
 3             permit should be granted.
 4                  Wetland losses shall be mitigated at a ratio of
 5             3:1  and  shall  be mitigated in kind and within the
 6             same watershed as the impacted area, restoring  both
 7             the  type and functions of the wetlands that will be
 8             affected by the regulated activity.
 9                  The Director, for good cause  shown  and  on  a
10             case-by-case  basis,  may  authorize  an  upward  or
11             downward   departure   from   the  mitigation  ratio
12             otherwise required under  this  subdivision  (d)(2),
13             but  for  a  Class  IB  wetland  the  Director shall
14             require a mitigation ration of at  least  2.5:1  and
15             shall  not  require  a mitigation ratio greater than
16             3.5:1.
17                  (B)  No permit under  this  subdivision  (d)(2)
18             may  be  issued  by  the Department without a public
19             notice and  opportunity  for  public  hearing  being
20             afforded.    The  Department  shall  hold  a  public
21             hearing  concerning  a  permit  application  if  the
22             proposed activity may have a significant impact upon
23             wetland resources or if  the  Department  determines
24             that a public hearing is otherwise appropriate.
25        (3)  Class II Wetlands:
26                  (A)  A  permit  to conduct a regulated activity
27             affecting a Class II wetland  within  the  scope  of
28             this  Act  shall  be  granted  if  documentation  is
29             submitted    demonstrating    that   no   reasonable
30             alternative to wetland modification exists.
31                  Based  upon   a   review   of   the   submitted
32             documentation and any other available resources, the
33             Department  shall make a determination as to whether
34             the  proposed  modification  constitutes  the  least
 
                            -16-     LRB093 04535 EFG 16318 a
 1             amount of wetland impact practicable and  whether  a
 2             permit should be granted.
 3                  Wetland losses shall be mitigated at a ratio of
 4             1.5:1  and shall be mitigated in kind and within the
 5             same watershed as the impacted area, restoring  both
 6             the  type  and functions of the wetland that will be
 7             affected by the regulated activity.
 8                  (B)  No permit under  this  subdivision  (d)(3)
 9             may  be  issued  by  the Department without a public
10             notice and  opportunity  for  public  hearing  being
11             afforded.    The  Department  shall  hold  a  public
12             hearing  concerning  a  permit  application  if  the
13             proposed activity may have a significant impact upon
14             wetland resources or if  the  Department  determines
15             that a public hearing is otherwise appropriate.
16        (4)  Class III Wetlands:
17                  (A)  No  regulated  activity covered under this
18             Act  that  will  impact  an  area  that   has   been
19             classified  as a Class III wetland may be undertaken
20             without prior notification to the Department.
21                  (B)  Such  notification  shall  include  (1)  a
22             sketch that reasonably depicts the area that will be
23             affected  by  the  regulated   activity,   including
24             wetland  and water boundaries for the areas affected
25             and the existing land uses  and  structures;  (2)  a
26             description  of the proposed activity, including its
27             purpose; (3) a description of any public benefit  to
28             be  derived  from  the proposed project; and (4) the
29             names  and  addresses  of  adjacent  landowners   as
30             determined by the current tax assessment rolls.
31                  (C)  Upon  receipt of a notification of intent,
32             the  Department  shall  verify  that  the  regulated
33             activity will affect a wetland  that  it  previously
34             classified as Class III.
 
                            -17-     LRB093 04535 EFG 16318 a
 1                  If  the  Department so verifies, the Department
 2             shall send the person, within 30 days of the receipt
 3             of such notification, a response  stating  that  the
 4             regulated activity may proceed.
 5                  If   the   Department  cannot  so  verify,  the
 6             Department shall send the person, within 30 days  of
 7             the receipt of such notification, a response stating
 8             that   no   classification  has  been  made  by  the
 9             Department, or that a Classification of IA,  IB,  or
10             II  was made and that the regulated activity may not
11             proceed  until  either  a  classification  is   made
12             pursuant  to  this Section, or a permit is obtained,
13             as applicable.
14                  Failure of  the  Department  to  respond  to  a
15             notification  shall  be  deemed  an authorization to
16             proceed.
17                  (D)  No  permit  shall  be   required   for   a
18             regulated  activity covered under this Act that will
19             impact an area that has been classified as  a  Class
20             III wetland.
21        (e)  Within   15   days   of  the  receipt  of  a  permit
22    application, the Department shall determine if an application
23    is complete.  To be  deemed  complete,  an  application  must
24    provide   all   information,   as   requested  in  Department
25    application forms, sufficient to  evaluate  the  application.
26    Such  information  shall  include, at a minimum: (1) a map of
27    the area that will be affected  by  the  activity,  including
28    wetland  and  water boundaries for the areas affected and the
29    existing uses and structures.  Such information shall include
30    a  wetland  delineation  made  in  accordance  with  the  COE
31    Wetlands Delineation Manual, Technical Report Y-87-1;  (2)  a
32    description  of the proposed activity, including its purpose,
33    the location and dimensions of  any  structures,  grading  or
34    fills,  drainage,  roads,  sewers  and  water supply, parking
 
                            -18-     LRB093 04535 EFG 16318 a
 1    lots, stormwater facilities,  discharge  of  pollutants,  and
 2    onsite  waste  disposal;  (3)  a  description  of  any public
 3    benefit to be derived from the proposed project; and (4)  the
 4    names  and  addresses of adjacent landowners as determined by
 5    the current tax assessment rolls.  The Department application
 6    forms shall be finalized and made available prior to the date
 7    on which any application is required.  The  Department  shall
 8    provide  notice  to  the  applicant as to whether a submitted
 9    application is complete.  Unless the Department notifies  the
10    applicant  that  the application is incomplete within 20 days
11    of receipt of  the  application,  the  application  shall  be
12    deemed  complete.   The  Department  may  request  additional
13    information as needed to make the completeness determination.
14    The  Department  may,  to the extent practicable, provide the
15    applicant  with   a   reasonable   opportunity   to   correct
16    deficiencies  prior to a final determination of completeness.
17    Within 90 days from the receipt of a complete application for
18    permit, the Department shall either issue or deny the  permit
19    or  issue it with conditions.  If a public hearing is held on
20    the application, however, this period shall be extended by 45
21    days.
22        (f)  The Department shall not issue a permit pursuant  to
23    this  Section  unless  the  Agency  has  certified  that  the
24    proposed activity will not cause or contribute to a violation
25    of  any  State  water  quality  standard.  The Agency will be
26    deemed to have certified that the proposed activity will  not
27    cause or contribute to a violation of any State water quality
28    standard  if  it  has  not  declined in writing to so certify
29    within 80 days of the filing of the  application  unless  the
30    Agency   has   requested   that  the  applicant  supply  more
31    information relevant to assessing the water  quality  impacts
32    of the proposed activity.  If a public hearing is held on the
33    application,  however,  this  period  shall be extended by 45
34    days.
 
                            -19-     LRB093 04535 EFG 16318 a
 1        (g)  A person may  submit  concurrent  requests  for  (i)
 2    determination and delineation, (ii) classification, and (iii)
 3    issuance  of  a permit or notification.  The Department shall
 4    act on such combined requests concurrently in accordance with
 5    expedited permitting procedures adopted by the Department.
 6        (h)  Any  person  may  submit  an  application   for   an
 7    after-the-fact  permit  to  be issued under this Act, and the
 8    Department is authorized  to  issue  such  an  after-the-fact
 9    permit  if  it  determines that the activities covered by the
10    after-the-fact  permit  application   were   undertaken   and
11    conducted  in response to emergency circumstances where there
12    may be an imminent threat to persons, public  infrastructure,
13    personal  property,  or  uninterrupted public utility service
14    that made it impracticable for the applicant to obtain  prior
15    authorization  under  this  Act to undertake and conduct such
16    activities.  The applicant shall be required  to  demonstrate
17    that  it  provided  notice to the Department of the emergency
18    circumstances as soon as reasonably  possible  following  the
19    discovery of such circumstances.
20        (i)  The  Department  shall  adopt rules to carry out the
21    provisions of this Section in accordance with Section  45  of
22    this Act.

23        Section  35.  Surety.  The Department may provide by rule
24    for any requirements regarding bonds or letters of credit  in
25    favor of the State, including conditions sufficient to secure
26    compliance with conditions and limitations of a permit.

27        Section 40.  General permits.
28        (a)  Notwithstanding  Section  30, any person who intends
29    to conduct a regulated activity within the State may do so in
30    accordance with a general permit  issued  by  the  Department
31    under this Section.
32        (b)  Permits for all categories of activities, subject to
 
                            -20-     LRB093 04535 EFG 16318 a
 1    the  same  permit  limitations  and  conditions, that are the
 2    subject of  a  nationwide  permit  issued  by  the  Corps  of
 3    Engineers in effect on the date of the enactment of this Act,
 4    are  adopted as general permits covering regulated activities
 5    subject to this Act.
 6        (c)  The Department may adopt  general  permits  covering
 7    other  activities  that  would  be subject to the same permit
 8    limitations  and  conditions,  if  it  determines  that   the
 9    activities  in  such category will cause only minimal adverse
10    environmental effects when performed  separately,  will  have
11    only  minimal  cumulative  adverse effect on the environment,
12    will not cause or contribute to a violation  of  State  water
13    quality  standards  when  performed separately, and will have
14    only a minimal cumulative adverse effect  on  water  quality.
15    The  Department  may  prescribe best management practices for
16    any general permit issued under this Section.  The Department
17    shall  consider  any  optional  mitigation  proposed  by   an
18    applicant    in   determining   whether   the   net   adverse
19    environmental effects of a proposed  regulated  activity  are
20    minimal.
21        Specifically,  the  Department must adopt general permits
22    for each of the following:
23             (1)  The construction or maintenance of access roads
24        for utility lines, substations or  related  equipment  or
25        facilities.
26             (2)  Activities  for  the  purpose of preserving and
27        enhancing  aviation  safety  or  to  prevent  an  airport
28        hazard.
29        (d)  No general permit adopted under this  Section  shall
30    be  for  a  period of more than 5 years after the date of its
31    issuance.  A general permit may be revoked or modified by the
32    Department if, after  opportunity  for  public  hearing,  the
33    Department  determines  that the activities authorized by the
34    general permit have an adverse  impact  on  the  environment,
 
                            -21-     LRB093 04535 EFG 16318 a
 1    cause  or  contribute  to  a violation of State water quality
 2    standards, or are more appropriately authorized by individual
 3    permits.
 4        (e)  Compliance with the terms of a general permit  shall
 5    be  deemed  compliance with the provisions of this Act if the
 6    applicant (i) files a notice of intent to  be  covered  under
 7    the  provisions  of  the  general  permit  in accordance with
 8    regulations adopted pursuant to this Act and (ii)  files  any
 9    reports required by the general permit.
10        (f)  The  Department  shall respond to a notice of intent
11    to proceed under a general permit issued under  this  Section
12    within  30 days after the Department receives the notice.  In
13    the event that the Department fails to respond to a notice of
14    intent  to  proceed  within  30  days  as  required  by  this
15    subsection (f), the person submitting  the  notice  shall  be
16    deemed  fully  authorized to conduct the activities described
17    in  the  notice  under  the  terms  and  conditions  of   the
18    applicable general permit.

19        Section 45.  Wetlands Advisory Committee; duties; rules
20        (a)  There  is  hereby  established  a  Wetlands Advisory
21    Committee, which shall consist of 17 members appointed by the
22    Governor and 2 non-voting members.
23        The Committee shall include 7 members selected from among
24    the following organizations:
25             (1)  The Illinois State Chamber of Commerce.
26             (2)  The Illinois Association of Realtors.
27             (3)  The Chemical Industry Council of Illinois.
28             (4)  The Consulting Engineers Council of Illinois.
29             (5)  The   Illinois   Association    of    Aggregate
30        Producers.
31             (6)  The Illinois Association of Home Builders.
32             (7)  The Illinois Energy Association.
33             (8)  The Illinois Manufacturers Association.
 
                            -22-     LRB093 04535 EFG 16318 a
 1             (9)  The    National    Solid    Waste    Management
 2        Association.
 3             (10)  The Illinois Farm Bureau.
 4        The  Committee  shall include 5 members selected from the
 5    membership of environmental and conservation  groups  in  the
 6    State.
 7        The   Committee  shall  include  2  members  representing
 8    counties  exercising  authority  under  Section   5-1062   or
 9    5-1062.1   of  the  Counties  Code  to  establish  stormwater
10    management programs.
11        The Committee shall include 3 other members as determined
12    by the Governor.
13        The  Director  of  Natural  Resources,  or  his  or   her
14    designee,  and  the  Director  of  the Illinois Environmental
15    Protection  Agency,  or  his  or  her  designee,   shall   be
16    non-voting members of the Committee.
17        The  Committee shall biannually elect from its membership
18    a Chair, who  shall  not  be  an  employee  of  the  Illinois
19    Environmental Protection Agency or the Illinois Department of
20    Natural Resources.
21        Members of the Advisory Committee may organize themselves
22    as they deem necessary and shall serve without compensation.
23        The  Department  shall  provide  reasonable and necessary
24    staff support to the Committee.
25        (b)  Within 120 days after the  effective  date  of  this
26    Act,  the  Committee shall recommend rules to the Department.
27    From time to time the Committee shall review,  evaluate,  and
28    make  recommendations  (i)  regarding  State laws, rules, and
29    procedures that relate to this Act and (ii) relating  to  the
30    State's efforts to implement this Act.
31        (c)  Within  6  months  after  the effective date of this
32    Act,   the   Department,   after   consideration    of    the
33    recommendations of the Committee (or if the Committee for any
34    reason  has not made recommendations, the Department itself),
 
                            -23-     LRB093 04535 EFG 16318 a
 1    shall adopt  any  rules  required  by  this  Act  prescribing
 2    procedures  and standards for its administration.  Nothing in
 3    this Act shall preclude, at  any  time,  the  recommendation,
 4    proposal, or adoption of any other rules deemed necessary for
 5    the orderly implementation of this Act.
 6        (d)  The  Committee  shall  develop  a plan for statewide
 7    wetlands  protection  and  shall  submit  such  plan  to  the
 8    Department.  The Department may seek to obtain  a  delegation
 9    of COE authority under Section 404 of the federal Clean Water
10    Act for all wetlands in Illinois on or before July 1, 2007 in
11    accordance with Section 25 of this Act.
12        (e)  The   Committee   shall   assist   counties   having
13    stormwater  management  authority  under  Section  5-1062  or
14    5-1062.1  of  the  Counties Code in coordinating and unifying
15    stormwater  management  regulations   adopted   thereto,   as
16    required in Section 65(f) of this Act.

17        Section   50.  Appeal   of   final  Department  decision;
18    judicial review.
19        (a)  Any permit applicant who has been denied a permit in
20    whole or in part, and any  person  who  participated  in  the
21    permit  proceeding  and who is aggrieved by a decision of the
22    Department to grant a permit in whole or in part, may  appeal
23    the  decision  to  the  Director within 35 days of the permit
24    grant or denial.  However, the 35-day period for appealing to
25    the Director may be extended by the applicant for a period of
26    time not to exceed 90 days by written notice provided to  the
27    Director.   In  all  such  appeals,  the burden of persuasion
28    shall be on the party appealing the Department's decision.
29        (b)  A person aggrieved by a final decision made pursuant
30    to this Act may seek judicial review of the decision pursuant
31    to the Administrative Review Law.

32        Section 55.  Investigation; enforcement.
 
                            -24-     LRB093 04535 EFG 16318 a
 1        (a)  In accordance with constitutional  limitations,  the
 2    Department  shall  have  authority to enter at all reasonable
 3    times upon any private or public property for the purpose  of
 4    inspecting and investigating to ascertain possible violations
 5    of  this  Act or of rules adopted hereunder, or of permits or
 6    terms or conditions thereof.
 7        (b)  The civil penalties provided for in this Section may
 8    be recovered in a civil action which may be instituted  in  a
 9    court of competent jurisdiction.  The State's Attorney of the
10    county  in  which  the  alleged  violation  occurred,  or the
11    Attorney General, may, at the request of the Department or on
12    his or her own motion, institute a civil action in a court of
13    competent jurisdiction to  recover  civil  penalties  and  to
14    obtain an injunction to restrain violations of the Act.
15        (c)  Any person who violates any provision of this Act or
16    any  rule  adopted  hereunder,  or  any  permit  or  term  or
17    condition thereof, shall be liable for a civil penalty of not
18    to exceed $10,000 per day of violation; such penalties may be
19    made  payable  to  the  Wetlands Protection Fund and shall be
20    deposited into that Fund as provided in subsection  (j).   In
21    determining the appropriate civil penalty to be imposed under
22    this Section, the Court is authorized to consider any matters
23    of  record in mitigation or aggravation of penalty, including
24    but not limited to the following factors:
25             (1)  The duration and gravity of the violation.
26             (2)  The presence or absence of due diligence on the
27        part  of  the  violator  in  attempting  to  comply  with
28        requirements of this Act and rules adopted  hereunder  or
29        to secure relief therefrom as provided by this Act.
30             (3)  Any  economic  benefits accrued by the violator
31        through the violation.
32             (4)  The amount of monetary penalty which will serve
33        to deter  further  violations  by  the  violator  and  to
34        otherwise aid in enhancing voluntary compliance with this
 
                            -25-     LRB093 04535 EFG 16318 a
 1        Act  by  the violator and other persons similarly subject
 2        to this Act.
 3             (5)  The number, proximity in time, and  gravity  of
 4        previously  adjudicated  violations  of  this  Act by the
 5        violator.
 6        (d)  Any violation of any provision of this  Act  or  any
 7    rule  adopted  hereunder,  or any permit or term or condition
 8    thereof, shall not be deemed a criminal offense.
 9        (e)  All final orders imposing civil  penalties  pursuant
10    to  this Section shall prescribe the time for payment of such
11    penalties.  If any such penalty is not paid within  the  time
12    prescribed, interest on such penalty at the rate set forth in
13    subsection (a) of Section 1003 of the Illinois Income Tax Act
14    shall  be  paid  for  the period from the date payment is due
15    until the date payment is received.  However, if the time for
16    payment is stayed during the pendency of an appeal,  interest
17    shall not accrue during such stay.
18        (f)  The  Department may terminate a permit if the holder
19    substantially violates any condition of the permit, obtains a
20    permit by misrepresentation, or fails  to  disclose  relevant
21    facts.
22        (g)  The Attorney General, or the State's Attorney of the
23    county  where  the affected wetland is located, may, upon his
24    or  her  own  motion  or  upon  request  of  the  Department,
25    institute a civil action in circuit court for  an  injunction
26    or  other appropriate legal action to restrain a violation of
27    this Act or of any rule  adopted  under  this  Act.   In  the
28    proceeding  the court shall determine whether a violation has
29    been committed or is likely to occur,  and  shall  enter  any
30    order  it  considers  necessary  to remove the effects of the
31    violation  and  to  prevent  the  violation  from  occurring,
32    continuing, or being renewed in the  future.   An  order  may
33    include  a requirement that the violator restore the affected
34    wetland area, including a provision  that,  if  the  violator
 
                            -26-     LRB093 04535 EFG 16318 a
 1    does  not comply by restoring the wetland within a reasonable
 2    time, the Department may restore the wetland to its condition
 3    prior to the violation and the violator shall  be  liable  to
 4    the Department for the cost of restoration.
 5        (h)  Any penalty assessed pursuant to this Act, including
 6    costs of wetland restoration and any restoration requirement,
 7    shall be recorded by the clerk of the court as a lien against
 8    the  land  and shall not be removed until the penalty is paid
 9    or the restoration is completed.
10        (i)  All costs, fees, and expenses in connection with  an
11    enforcement  or  restoration  action  shall  be  assessed  as
12    damages against the violator.
13        (j)  All  penalties collected under this Section shall be
14    deposited into the Wetlands Protection Fund.
15        (k)  Enforcement  actions  under  this  Section  may   be
16    concurrent or separate.

17        Section 60.  Fees.
18        (a)  The   Department  by  rule  shall  adopt  a  minimal
19    processing fee not exceeding $250 for notification  regarding
20    Class  III  Wetlands and for processing a notice of intent to
21    proceed under a general permit.
22        (b)  The Department by rule shall establish a schedule of
23    permit fees for single  regulated  activities  in  Class  IA,
24    Class IB, and Class II wetlands.
25        (c)  Fees  shall be set at levels that allow the wetlands
26    program to operate financially on  a  self-sustaining  basis.
27    The  Department  shall  annually  review  its fee schedule in
28    order to maintain its fees at a self-sustaining level.

29        Section 65. County authority.
30        (a)  Nothing in this Act preempts or denies the right  of
31    any  governmental  body  with a stormwater management program
32    under Section 5-1062 of  the  Counties  Code  to  control  or
 
                            -27-     LRB093 04535 EFG 16318 a
 1    regulate  activities  in any wetlands within the jurisdiction
 2    of the governmental body, subject to subsection (b).
 3        (b)  Upon the request  of  a  governmental  body  with  a
 4    stormwater  management  program  under  Section 5-1062 of the
 5    Counties Code, the Director shall, within 30 calendar days of
 6    receiving the request, provide a letter  recognizing  whether
 7    the governmental body's stormwater management program:
 8             (1)  provides  wetlands  protection  consistent with
 9        the intent of this Act; and
10             (2)  has an administration and  qualified  staff  to
11        implement  the  governmental body's stormwater management
12        program.
13        (c)  Activities within or affecting wetlands  that  occur
14    within  the  jurisdiction  of  the  governmental  body with a
15    stormwater management program under  Section  5-1062  of  the
16    Counties  Code  that  meets  the  provisions  of subdivisions
17    (b)(1) and  (b)(2)  of  this  Section  are  exempt  from  the
18    requirements   of  this  Act,  but  must  meet  those  county
19    stormwater management  requirements,  at  a  minimum.    This
20    exemption  also applies during the period that the Department
21    is considering  a  county's  request  under  subsection  (b).
22    Until  a request has been submitted under subsection (b), the
23    requirements of this Act shall apply.
24        (d)  The Director may rescind recognition status  in  the
25    event that the governmental body with a stormwater management
26    program  under  Section 5-1062 of the Counties Code no longer
27    meets the provisions of subdivisions  (b)(1)  and  (b)(2)  of
28    this Section.
29        (e)  A  governmental  body  with  a stormwater management
30    program under Section 5-1062 of the Counties  Code  that  has
31    obtained  recognition by the Director under subsection (b) of
32    this Section shall submit an annual report to the Director.
33        (f)  Counties having authority under  Section  5-1062  of
34    the  Counties  Code  to adopt a stormwater management program
 
                            -28-     LRB093 04535 EFG 16318 a
 1    shall seek with the assistance of the  Northeastern  Illinois
 2    Planning  Commission  to  coordinate  and  unify  regulations
 3    adopted pursuant thereto.
 4        (g)  Nothing   in  this  Act  shall  be  construed  as  a
 5    limitation or preemption of any home rule power.

 6        Section  70.  Wetlands  Protection  Fund.  All  fees  and
 7    penalties collected by the Department pursuant  to  this  Act
 8    shall  be  deposited into the Wetlands Protection Fund, which
 9    is hereby created as a special fund in  the  State  Treasury.
10    In  addition  to any moneys that may be appropriated from the
11    General Revenue Fund, the  Illinois  General  Assembly  shall
12    appropriate  moneys  in  the  Wetlands Protection Fund to the
13    Department in amounts deemed necessary to implement this Act.

14        Section 95.  The State Finance Act is amended  by  adding
15    Section 5.595 as follows:

16        (30 ILCS 105/5.595 new)
17        Sec. 5.595.  The Wetlands Protection Fund.

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

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