093_SB2130 LRB093 14372 BDD 19988 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. This Act does not apply to property within a 7 municipality with a population greater than 500,000 nor to 8 property within the incorporated or unincorporated area of a 9 county with a population greater than 3,000,000. 10 Section 10. Definitions. For the purposes of this Act: 11 "ADID" means those aquatic sites identified by the United 12 States Environmental Protection Agency and the United States 13 Corps of Engineers as areas generally unsuitable for disposal 14 of dredged or fill material in accordance with 40 CFR Part 15 230.80. 16 "Affected property" means any property upon which a 17 regulated activity is conducted. 18 "Agency" means the Illinois Environmental Protection 19 Agency. 20 "Avoidance" means any action taken in a manner such that 21 a regulated activity will not occur. 22 "Board" means the Illinois Pollution Control Board. 23 "Bog" means a peat-accumulating wetland that has no 24 significant inflows or outflows and supports acidophilic 25 mosses, particularly sphagnum, resulting in highly acidic 26 conditions. 27 "Commencing such a regulated activity" means any steps 28 taken in preparation of conducting a regulated activity that 29 may impact the affected property, such as cutting, filling, 30 pumping of water, and earth movement. -2- LRB093 14372 BDD 19988 b 1 "Committee" means the Illinois Wetlands Advisory 2 Committee. 3 "Contiguous" means a wetland that is delineated on the 4 affected property and extends beyond the boundary of that 5 property. 6 "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 to have the 11 effect 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 the 15 land was a wetland, farmed wetland, or farmed-wetland pasture 16 and was neither highly erodible land nor highly erodible 17 cropland. 18 "Corps of Engineers" or "COE" means the United States 19 Army Corps of Engineers. 20 "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 and including bald cypress, and that are restricted to 24 extreme southern Illinois. 25 "Delegation agreement" means a written document executed 26 between the COE and the Agency that authorizes the Agency to 27 assume all of the COE's authority under the federal Clean 28 Water Act regarding activities in wetlands. Such delegation 29 agreement shall include federal funding sufficient to allow 30 the Agency to carry out its responsibilities under such 31 agreement. 32 "Director" means the Director of the Illinois 33 Environmental Protection Agency. 34 "Fen" means a wetland fed by an alkaline water source -3- LRB093 14372 BDD 19988 b 1 such as a calcareous spring or seep. 2 "Floristic quality index" means an index calculated using 3 the Floristic Quality Assessment Method of assessing 4 floristic integrity or quality. 5 "Incidental fallback" means the redeposit of small 6 volumes of dredged material that is incidental to excavation 7 activity in waters of the State when such material falls back 8 to substantially the same place as the initial removal. 9 "Incidentally created" means created as a result of any 10 normal or routine activity coincidental with the conduct of 11 legitimate business enterprises, except that a wetland or 12 depression created as mitigation for any activity affecting 13 wetlands is not "incidentally created". 14 "Isolated wetlands" means those areas that are inundated 15 or saturated by surface or ground water at a frequency or 16 duration sufficient to support, and that under normal 17 circumstances do support, a prevalence of vegetation 18 typically adapted for life in saturated soil conditions, and 19 that are not regulated under the federal Clean Water Act (33 20 U.S.C. 1251-1387). 21 "Panne" means wet interdunal flats located near Lake 22 Michigan. 23 "Person" means an individual, partnership, 24 co-partnership, firm, company, limited liability company, 25 corporation, association, joint stock company, trust, estate, 26 political subdivision, state agency, or other legal entity, 27 or their legal representative, agent, or assign. 28 "Prior converted cropland" means a converted wetland 29 where the conversion occurred prior to December 23, 1985, an 30 agricultural commodity has been produced at least once before 31 December 23, 1985, and as of December 23, 1985, the converted 32 wetland did not support woody vegetation and met the 33 following hydrologic criteria: (i) inundation was less than 34 15 consecutive days during the growing season or 10 percent -4- LRB093 14372 BDD 19988 b 1 of the growing season, whichever is less, in most years (50 2 percent chance or more); and (ii) if a pothole, playa, or 3 pocosin, ponding was less than 7 consecutive days during the 4 growing season in most years (50 percent chance or more) and 5 saturation was less than 14 consecutive days during the 6 growing season most years (50 percent chance or more). 7 "Regulated activity" means the discharge of dredged or 8 fill material into a wetland, the drainage of a wetland, or 9 excavation of a wetland that results in more than incidental 10 fallback. 11 "Threatened or endangered species" means those species 12 that have been designated as threatened or endangered by the 13 Illinois Endangered Species Protection Board pursuant to the 14 Illinois Endangered Species Protection Act and those species 15 that have been designated as threatened or endangered by the 16 U.S. Fish and Wildlife Service pursuant to the Endangered 17 Species Act (35 U.S.C. 1531-1544). 18 "Upland" means non-wetland, when used to describe a 19 particular land use, or non-hydric, when used to describe a 20 soil type. 21 "Wetlands" means those areas that are inundated or 22 saturated by surface or ground water at a frequency or 23 duration sufficient to support, and that under normal 24 circumstances do support, a prevalence of vegetation 25 typically adapted for life in saturated soil conditions. 26 Section 15. Exemptions. 27 (a) As long as they do not have as their purpose 28 bringing a wetland into a use to which it was not previously 29 subject, the following are not prohibited by or otherwise 30 subject to regulation under this Act: 31 (1) Normal farming, silviculture, and ranching 32 activities, such as plowing, seeding, cultivating, minor 33 drainage, harvesting for the production of food, fiber, -5- LRB093 14372 BDD 19988 b 1 and forest products, or upland soil and water 2 conservation practices. 3 (2) Maintenance, including emergency reconstruction 4 of recently damaged parts, of currently serviceable 5 structures, such as dikes, dams, levees, groins, riprap, 6 breakwaters, causeways, and bridge abutments or 7 approaches, and transportation structures. 8 (3) Construction or maintenance of farm or stock 9 ponds or irrigation ditches or the maintenance of 10 drainage ditches. 11 (4) Construction of temporary sedimentation basins 12 on a construction site that does not include any 13 regulated activities within a wetland. 14 (5) Construction or maintenance of farm roads, 15 forest roads, or temporary roads for moving mining 16 equipment, where such roads are constructed and 17 maintained, in accordance with best management practices, 18 to assure that flow and circulation patterns and chemical 19 and biological characteristics of the wetland are not 20 impaired, that the reach of the wetland is not reduced, 21 and that any adverse effect on the aquatic environment 22 will be otherwise minimized. 23 (6) Unless they are to be conducted in Class IA or 24 Class IB wetlands, activities for the placement of 25 pilings for linear projects, such as bridges, elevated 26 walkways, and power line structures. 27 (7) Installation and maintenance of signs, 28 lighting, and fences and the mowing of vegetation within 29 existing maintained rights-of-way. 30 (8) Repair and maintenance of existing buildings, 31 facilities, lawns, and ornamental plantings. 32 (9) Construction projects that have obtained any 33 necessary building permits from applicable local 34 jurisdictions prior to the effective date of this Act. -6- LRB093 14372 BDD 19988 b 1 (10) Application of media, including deicing media, 2 on the surface of existing roads for purposes of public 3 safety. 4 (11) Non-surface-disturbing surveys and 5 investigations for construction, planning, maintenance, 6 or location of environmental resources. 7 (12) Wetland management practices on lands that are 8 used primarily for the management of waterfowl or other 9 migratory water birds or furbearers if such practices 10 took place on these lands prior to the effective date of 11 this Act. This includes vegetation management that may 12 include the use of fire, chemical, or mechanical 13 (hydro-axe, bulldozer, rome disk, or similar equipment) 14 removal of invading woody or herbaceous vegetation to 15 maintain a preferred successional stage. Use of chemicals 16 must be by a certified applicator and chemicals must be 17 registered for appropriate use. Clearing or removal of 18 woody vegetation shall be limited to 4-inch dbh or 19 smaller material for the purpose of establishing or 20 maintaining the successional stage of a wetland as a 21 herbaceous wetland vegetated by native moist soil plants 22 or selected wildlife food plants. 23 (b) Any exemption authorized by and pertaining to 24 wetlands that are subject to regulation under the federal 25 Clean Water Act (33 U.S.C. 1251-1387) or rules adopted 26 thereunder shall also be an exemption for the purpose of this 27 Act. 28 (c) The following are not wetlands for purposes of this 29 Act: 30 (1) Waste treatment systems, including treatment 31 ponds or lagoons, designed to comply with water quality 32 standards of the State or to remediate a site in 33 accordance with an approved Agency program, and former 34 waste treatment systems that have ceased operations less -7- LRB093 14372 BDD 19988 b 1 than 33 years before the date the permit application is 2 received by the Agency or that are undergoing remediation 3 in accordance with an approved Agency program. 4 (2) A drainage or irrigation ditch. 5 (3) An artificially irrigated area that would 6 revert to upland if the irrigation ceased. 7 (4) An artificial lake or pond created by 8 excavating or diking upland to collect and retain water 9 for the primary purpose of stock watering, irrigation, 10 wildlife, fire control, or ornamentation or landscaping 11 or as a settling pond. 12 (5) Except for wetlands created pursuant to mining 13 activities described in item (7), an incidentally created 14 water-filled depression, unless (i) ownership of the 15 property containing the depression has been transferred 16 away from the party who incidentally created the 17 water-filled depression, (ii) the ownership transfer 18 occurred more than 12 months prior to the commencement of 19 an otherwise regulated activity, (iii) the use of the 20 property has changed from the use that existed when the 21 property was transferred from the party who incidentally 22 created the water-filled depression, (iv) the resulting 23 body of water meets the definition in this Act of a 24 wetland, (v) the ownership of the property has not 25 transferred from the party who created the incidentally 26 created water-filled depression, and (vi) the depression 27 was not created more than 33 years before the date the 28 permit application is received by the Agency. 29 (6) Stormwater or spill management systems, 30 including retention and detention basins, ditches and 31 channels, and former stormwater or spill management 32 systems that have ceased operations less than 33 years 33 before the date the permit application is received by the 34 Agency or that are undergoing remediation in accordance -8- LRB093 14372 BDD 19988 b 1 with an approved Agency program. 2 (7) Waters that undergo mining activities conducted 3 pursuant to a federal, State, regional, or local permit 4 that requires the reclamation of the affected wetlands if 5 the reclamation will be completed within a reasonable 6 period of time after completion of activities at the site 7 and, upon completion of such reclamation, the wetlands 8 will support functions generally equivalent to the 9 functions supported by the wetlands at the time of 10 commencement of such activities. 11 (8) Prior converted cropland. 12 Section 20. Applicability. The requirements of this Act 13 shall apply to all isolated wetlands as that term is defined 14 in this Act. In the event that an isolated wetland ceases to 15 meet that definition because it becomes subject to regulation 16 under the federal Clean Water Act, the wetland shall no 17 longer be subject to the provisions of this Act. 18 On and after July 1, 2007, the requirements of this Act 19 shall apply to wetlands, if and only if by that date the COE 20 has entered into a delegation agreement with the Agency; 21 provided, however, that the provisions of this Act shall 22 continue in full force and effect as applied to isolated 23 wetlands. The delegation agreement shall provide, at a 24 minimum, that all delineation, classification, notification, 25 and permitting requirements shall be at least as stringent as 26 those contained in this Act. 27 Section 25. Wetland delineation; classification; 28 notification; permits. 29 (a) The requirements of this Section apply beginning on 30 the effective date of the rules required under Section 40 or 31 18 months from the effective date of this Act, whichever 32 occurs earlier. The procedures and regulatory criteria for -9- LRB093 14372 BDD 19988 b 1 the delineation, classification, notification, and permitting 2 for wetlands shall be conducted in accordance with the 3 provisions of this Section. 4 (b) Any person who intends to conduct a regulated 5 activity within the State may request a determination from 6 the Agency as to the existence, location, and surface area of 7 any wetlands on or contiguous to the affected property. 8 Nothing in this Section shall require the person to seek such 9 a determination, however, failure to seek and obtain a 10 determination shall not be a defense against a violation of 11 this Act. 12 The person seeking a determination shall provide the 13 Agency with sufficient information to render such a 14 determination. The information shall include a wetland 15 delineation made in accordance with the COE Wetlands 16 Delineation Manual, Technical Report Y-87-1. Delineation of 17 the portion of a contiguous wetland not on the affected 18 property shall be made to the extent reasonably possible, and 19 methods other than physical on-site evaluations shall be 20 considered by the Agency. 21 The Agency shall provide notice to the applicant as to 22 whether a submitted application is complete. Unless the 23 Agency notifies the applicant that the application is 24 incomplete within 15 days of receipt of the application, the 25 application shall be deemed complete. The Agency may request 26 additional information as needed to make the completeness 27 determination. The Agency shall, within 30 days after receipt 28 of a complete determination request, provide the person with 29 a determination as to the existence, location, and surface 30 area of wetlands located on or contiguous to the affected 31 property. 32 If the Agency determines that there are no wetlands on 33 the affected property, any otherwise regulated activity 34 conducted on the property shall not be subject to the -10- LRB093 14372 BDD 19988 b 1 provisions of this Act. 2 If the Agency determines that there is one or more 3 wetlands on or contiguous to the affected property, the 4 person may apply to the Agency for classification of such 5 wetlands. 6 Any determination of a wetland by the Agency is a final 7 decision for purposes of appeal to the Board. 8 (c) If a person intends to conduct a regulated activity, 9 the person may, prior to commencing the regulated activity, 10 request that the wetland be classified as a Class IA, Class 11 IB, Class II, or Class III wetland in accordance with the 12 provisions of this Section. Nothing in this Section shall 13 require the person to seek such a classification, however any 14 wetlands not so classified shall be considered Class IA 15 wetlands for purposes of this Act. 16 The person seeking a classification shall provide the 17 Agency with sufficient information to render such a 18 classification. The information shall include a wetland 19 delineation made in accordance with the COE Wetlands 20 Delineation Manual, Technical Report Y-87-1. 21 Unless the Agency notifies the applicant that the request 22 for classification is incomplete within 15 days after receipt 23 of the request, the application shall be deemed complete. 24 The Agency may request additional information as needed 25 to make the completeness determination. The Agency shall, 26 within 30 days after receipt of classification request, 27 provide the person with a classification of wetlands located 28 on or contiguous to the affected property. If the Agency 29 fails to provide the person with a classification within 30 30 days, the classification requested by the person shall be 31 deemed granted. 32 The Agency shall classify a wetland as: 33 (1) A Class IA wetland if and only if (A) the 34 wetland is or encompasses a bog; (B) the wetland is or -11- LRB093 14372 BDD 19988 b 1 encompasses a fen; (C) the wetland is or encompasses a 2 panne; (D) the wetland is or encompasses a cypress swamp; 3 or (E) a threatened or endangered species has been 4 identified in the wetland, provided that a wetland will 5 not be classified as Class IA based solely on the 6 presence of an endangered plant and the owner of the 7 wetland authorizes the taking of that plant pursuant to 8 the Illinois Endangered Species Protection Act. 9 (2) A Class IB wetland if and only if the wetland 10 (A) is or encompasses an ADID site; or (B) has a 11 Floristic Quality Index (FQI) that is equal to or greater 12 than 20 or a mean coefficient of conservatism (Mean C) 13 equal to or greater than 3.5, determined in accordance 14 with rules adopted by the Agency. 15 (3) A Class II wetland if and only if the wetland 16 is not a Class IA, Class IB, or Class III wetland. 17 (4) A Class III wetland if and only if (A) the 18 wetland is not a Class IA or Class IB wetland, and (B) 19 the total size of the wetland, including contiguous 20 areas, is (i) less than one-quarter acre or (ii) less 21 than one-half acre if the wetland is in a county that 22 does not have authority to establish stormwater 23 management programs under Section 5-1062 or Section 24 5-1062.1 of the Counties Code. 25 Any classification of a wetland by the Agency is a final 26 decision for purposes of appeal to the Board. 27 (d) Subject to the provisions of Section 35 regarding 28 general permits, no person may conduct or cause to be 29 conducted a regulated activity within or affecting a wetland 30 in such a manner that the biologic or hydrologic integrity of 31 the wetland is impaired within the scope of this Act, except 32 in accordance with the terms of an individual permit issued 33 by the Agency or authorization to proceed as applicable under 34 this Section. -12- LRB093 14372 BDD 19988 b 1 (1) Class IA. 2 (A) A permit to conduct a regulated activity 3 affecting a Class IA wetland within the scope of 4 this Act shall be granted if documentation is 5 submitted that demonstrates that avoidance of 6 impacts to a Class IA wetland precludes the 7 reasonable economic use of the entire parcel and 8 that no practicable alternative to wetland 9 modification exists. 10 (B) No permit under this item (1) may be 11 issued by the Agency without a public notice and 12 opportunity for public hearing being afforded. In 13 the event that an affected party requests a public 14 hearing, a public hearing shall be held. 15 (C) Wetland losses under this item (1) shall 16 be mitigated at a ratio of no greater than 3.5:1 and 17 shall be mitigated in kind and within the same 18 watershed as the impacted area restoring, to the 19 maximum degree practicable as determined by the 20 Agency, both the type and functions of the wetland 21 that will be affected by the regulatory activity. 22 When the type and functions of the wetland that will 23 be affected by the activity cannot be adequately 24 restored to the maximum degree practicable by the 25 ratio allowed in this paragraph, the Agency may, on 26 a case-by-case basis, increase this ratio based on 27 site-specific criteria to be developed by rule. The 28 mitigation shall be consistent with rules adopted by 29 the Board and may consist of actual replacement or 30 participation in a mitigation banking program or 31 other compensation program approved by the Agency. 32 (2) Class IB. 33 (A) A permit to conduct a regulated activity 34 affecting a Class IB wetland within the scope of -13- LRB093 14372 BDD 19988 b 1 this Act shall be granted if documentation is 2 submitted that demonstrates that no practicable 3 alternative to wetland modification exists. 4 (B) No permit under this item (2) may be 5 issued by the Agency without a public notice and 6 opportunity for public hearing being afforded. In 7 the event that an affected party requests a public 8 hearing, a public hearing shall be held. 9 (C) Wetland losses under this item (2) shall 10 be mitigated at a ratio of no greater than 3:1 and 11 shall be mitigated in kind and within the same 12 watershed as the impacted area restoring, to the 13 maximum degree practicable as determined by the 14 Agency, both the type and functions of the wetland 15 that will be affected by the regulatory activity. 16 When the type and functions of the wetland that will 17 be affected by the activity cannot be adequately 18 restored to the maximum degree practicable by the 19 ratio allowed in this paragraph, the Agency may, on 20 a case-by-case basis, increase this ratio based on 21 site-specific criteria to be developed by rule. The 22 mitigation shall be consistent with rules adopted by 23 the Board and may consist of actual replacement or 24 participation in a mitigation banking program or 25 other compensation program approved by the Agency. 26 (3) Class II. 27 (A) A permit to conduct a regulated activity 28 affecting a Class II wetland within the scope of 29 this Act shall be granted if documentation is 30 submitted demonstrating that a minimization plan to 31 minimize or alleviate the impact on the wetland has 32 been developed and applied as reasonably 33 appropriate. 34 (B) No permit under this item (3) may be -14- LRB093 14372 BDD 19988 b 1 issued by the Agency without a public notice and 2 opportunity for public hearing being afforded. In 3 the event that an affected party requests a public 4 hearing, the Agency may at its discretion hold a 5 public hearing on the proposed regulated activity. 6 (C) Wetland losses under this item (3) shall 7 be mitigated at a ratio of no greater than 1.5:1, 8 and shall be mitigated in kind and within the same 9 watershed as the impacted area restoring, to the 10 maximum degree practicable as determined by the 11 Agency, both the type and functions of the wetland 12 that will be affected by the regulatory activity. 13 When the type and functions of the wetland that will 14 be affected by the activity cannot be adequately 15 restored to the maximum degree practicable by the 16 ratio allowed in this paragraph, the Agency may, on 17 a case-by-case basis, increase this ratio based on 18 site-specific criteria to be developed by rule. The 19 mitigation shall be consistent with rules adopted by 20 the Board and may consist of actual replacement, 21 participation in a mitigation banking program or 22 other compensation programs approved by the Agency, 23 education or research programs, or other appropriate 24 programs. 25 (4) Class III. 26 (A) No regulated activity covered under this 27 Act that will impact an area that has been 28 classified as a Class III wetland may be undertaken 29 without prior notification to the Agency. 30 (B) The notification shall include (i) a 31 sketch that reasonably depicts the area that will be 32 affected by the regulated activity, including 33 wetland and water boundaries for the areas affected 34 and the existing land uses and structures; (ii) a -15- LRB093 14372 BDD 19988 b 1 description of the proposed activity, including its 2 purpose; (iii) a description of any public benefit 3 to be derived from the proposed project; and (iv) 4 the names and addresses of adjacent landowners as 5 determined by the current tax assessment roles. 6 (C) Upon receipt of a notification of intent, 7 the Agency shall verify that the regulated activity 8 will affect a wetland that it previously classified 9 as Class III. If the Agency so verifies, the Agency 10 shall send the person, within 30 days of the receipt 11 of the notification, a response stating that the 12 regulated activity may proceed. If the Agency 13 cannot so verify, the Agency shall send the person, 14 within 30 days of the receipt of the notification, a 15 response stating that no classification has been 16 made by the Agency or that a classification of IA, 17 IB, or II was made and that the regulated activity 18 may not proceed until either a classification is 19 made pursuant to this Section, or a permit is 20 obtained, as applicable. Failure of the Agency to 21 respond to a notification shall be deemed as an 22 authorization to proceed. 23 (D) No permit shall be required for a 24 regulated activity covered under this Act that will 25 impact an area that has been classified as a Class 26 III wetland. 27 (e) Within 15 days of the receipt of a permit 28 application, the Agency shall determine if an application is 29 complete. To be deemed complete, an application must provide 30 all information, as requested in Agency application forms, 31 sufficient to evaluate the application. The information shall 32 include, at a minimum, the following: 33 (1) A sketch that reasonably depicts the area that 34 will be affected by the regulated activity, including -16- LRB093 14372 BDD 19988 b 1 wetland and water boundaries for the areas affected and 2 the existing land uses and structures. 3 (2) A description of the proposed activity, 4 including its purpose. 5 (3) A description of any public benefit to be 6 derived from the proposed project. 7 (4) The names and addresses of adjacent landowners 8 as determined by the current tax assessment roles. 9 (5) A wetland delineation made in accordance with 10 the COE Wetlands Delineation Manual, Technical Report 11 Y-87-1. 12 The Agency application forms shall be finalized and made 13 available prior to the date on which any application is 14 required. The Agency shall provide notice to the applicant as 15 to whether a submitted application is complete. Unless the 16 Agency notifies the applicant that the application is 17 incomplete within 20 days of receipt of the application, the 18 application shall be deemed complete. The Agency may request 19 additional information as needed to make the completeness 20 determination. The Agency may, to the extent practicable, 21 provide the applicant with a reasonable opportunity to 22 correct deficiencies prior to a final determination of 23 completeness. Within 90 days after the receipt of a complete 24 application for permit, the Agency shall issue, deny, or 25 issue with conditions a permit. If a public hearing is held 26 on the application, however, this period shall be extended by 27 45 days. 28 (f) The Agency shall not issue any permit pursuant to 29 this Section unless the Agency has certified that the 30 proposed activity will not cause or contribute to a violation 31 of any State water quality standard. The Agency will be 32 deemed to have certified that the proposed activity will not 33 cause or contribute to a violation of any State water quality 34 standard if it has not declined in writing to so certify -17- LRB093 14372 BDD 19988 b 1 within 80 days of the filing of the application, unless the 2 Agency has requested that the applicant supply more 3 information relevant to assessing the water quality impacts 4 of the proposed activity. 5 (g) Any person may submit concurrent requests for 6 determination and delineation, classification, and a permit 7 application or provision of notification. The Agency shall 8 act on such combined requests concurrently in accordance with 9 expedited permitting procedures proposed by the Agency and 10 adopted by the Board. 11 (h) Any person may submit an application for an 12 after-the-fact permit to be issued under this Act, and the 13 Agency is authorized to issue such an after-the-fact permit 14 if it determines that the activities covered by the 15 after-the-fact permit application were undertaken and 16 conducted in response to emergency circumstances where there 17 may be an imminent threat to persons, public infrastructure, 18 personal property, or uninterrupted utility service that made 19 it impracticable for the applicant to obtain prior 20 authorization under this Act to undertake and conduct such 21 activities. The applicant shall be required to demonstrate 22 that it provided notice to the Agency of the emergency 23 circumstances as soon as reasonably possible following the 24 discovery of such circumstances. 25 (i) The Board shall adopt rules to carry out the 26 provisions of this Section in accordance with Section 40 of 27 this Act. 28 Section 35. General permits. 29 (a) Notwithstanding Section 25, any person who intends 30 to conduct a regulated activity within the State may do so in 31 accordance with a general permit issued by the Agency under 32 this Section. 33 (b) Permits for all categories of activities, subject to -18- LRB093 14372 BDD 19988 b 1 the same permit limitations and conditions that are the 2 subject of a nationwide permit issued by the COE, in effect 3 on the date of the enactment of this Act are adopted as 4 general permits covering regulated activities subject to this 5 Act. 6 (c) The Agency may adopt general permits covering other 7 activities that would be subject to the same permit 8 limitations and conditions if it determines that the 9 activities in that 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 Agency may prescribe the best management practices for 16 any general permit issued under this Section. The Agency 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. Specifically, the Agency must adopt a general 21 permit for: 22 (1) the construction or maintenance of access roads 23 for utility lines, substations, or related equipment or 24 facilities; and 25 (2) activities for the purpose of preserving and 26 enhancing aviation safety or preventing an airport 27 hazard. 28 (d) No general permit adopted under this Section shall 29 be for a period of more than 5 years after the date of its 30 adoption and the general permit may be revoked or modified by 31 the Agency if, after opportunity for public hearing, the 32 Agency determines that the activities authorized by the 33 general permit have an adverse impact on the environment, 34 cause or contribute to a violation of State water quality -19- LRB093 14372 BDD 19988 b 1 standards, or are more appropriately authorized by individual 2 permits. 3 (e) Compliance with the terms of the general permits 4 shall be deemed compliance with the provisions of this Act if 5 the applicant (i) files a notice of intent to be covered 6 under the provisions of the general permit in accordance with 7 rules adopted pursuant to this Act and (ii) files any reports 8 required by the general permit. 9 (f) The Agency shall respond to a notice of intent to 10 proceed under general permits issued under this Section 11 within 30 days after the Agency receives the notice. In the 12 event that the Agency fails to respond to a notice of intent 13 to proceed within 30 days as required by this subsection (f), 14 the person submitting the notice shall be deemed fully 15 authorized to conduct the activities described in the notice 16 under the terms and conditions of the applicable general 17 permit. 18 Section 40. Illinois Wetlands Advisory Committee; 19 duties; rules. 20 (a) There is hereby established the Illinois Wetlands 21 Advisory Committee consisting of 13 members appointed by the 22 Governor. The Committee shall include 5 members selected from 23 among the following organizations: 24 (1) The Illinois State Chamber of Commerce. 25 (2) The Illinois Association of Realtors. 26 (3) The Consulting Engineers Council of Illinois. 27 (4) The Illinois Association of Aggregate 28 Producers. 29 (5) The Illinois Association of Home Builders. 30 (6) The National Solid Waste Management 31 Association. 32 (7) The Illinois Farm Bureau. 33 The Committee shall include 3 members selected from the -20- LRB093 14372 BDD 19988 b 1 membership of environmental and conservation groups in the 2 State. 3 The Committee shall include 2 persons representing 4 counties exercising authority under Section 5-1062 or Section 5 5-1062.1 of the Counties Code to establish stormwater 6 management programs. 7 The Committee shall include 3 other members as determined 8 by the Governor. 9 Members of the Committee may organize themselves as they 10 deem necessary and shall serve without compensation. 11 (b) The Committee shall review, evaluate, and make 12 recommendations (i) regarding State laws, rules, and 13 procedures that relate to this Act and (ii) relating to the 14 State's efforts to implement this Act. 15 (c) Within 6 months after the effective date of this 16 Act, the Agency, after consideration of the recommendations 17 of the Committee, shall propose to the Board any rules 18 required by this Act prescribing procedures and standards for 19 its administration. Within 6 months of the proposal of such 20 rules to the Board, the Board shall adopt, pursuant to 21 Sections 27 and 28 of the Environmental Protection Act and 22 any rules adopted thereunder, rules that are consistent with 23 this Act. Nothing in this Act shall preclude, at any time, 24 the recommendation, proposal, or adoption of any other rules 25 deemed necessary for the orderly implementation of this Act. 26 (d) The Committee shall develop a plan for Statewide 27 wetlands protection and shall submit the plan to the State. 28 The State shall seek to obtain a delegation of COE authority 29 under Section 404 of the federal Clean Water Act for all 30 wetlands in Illinois on or before July 1, 2007, in accordance 31 with Section 20 of this Act. 32 Section 45. Appeal of final agency decision; judicial 33 review. -21- LRB093 14372 BDD 19988 b 1 (a) If the Agency rejects a proposed determination and 2 delineation, refuses to approve a classification, or approves 3 a classification other than that supplied by the applicant, 4 or refuses to grant or grants with conditions a permit under 5 Sections 25 or 35 of this Act, the applicant may, within 35 6 days after receipt of the decision, petition for a hearing 7 before the Board to contest the decision of the Agency. 8 However, the 35-day period for petitioning for a hearing may 9 be extended by the applicant for a period of time not to 10 exceed 90 days by written notice provided to the Board from 11 the applicant and the Agency within the initial period. The 12 applicant and the Agency must jointly file a request for 13 extension within 35 days after the date of service of the 14 Agency's final decision. The joint request may seek an appeal 15 period not exceeding 125 days from the date of service of the 16 Agency's final decision to file a petition for review under 17 this Section. The Board shall publish notice in a newspaper 18 of general circulation in that county where the regulated 19 activity at issue is located for a period of 21 days. The 20 Agency shall appear as respondent in the hearing. At the 21 hearing the rules prescribed in Section 32 and subsection (a) 22 of Section 33 of the Environmental Protection Act shall apply 23 and the burden of proof shall be on the petitioner. 24 (b) The applicant or the Agency, when adversely affected 25 by a final order or determination of the Board, may obtain 26 judicial review by filing a petition for review within 35 27 days from the date that a copy of the order or other final 28 action sought to be reviewed was served upon the party 29 affected by the order or other final Board action complained 30 of, under the provisions of the Administrative Review Law and 31 the rules adopted pursuant thereto, except that review shall 32 be afforded directly in the appellate court for the district 33 in which the cause of action arose and not in the circuit 34 court. -22- LRB093 14372 BDD 19988 b 1 Section 50. Investigation; enforcement. 2 (a) In accordance with constitutional limitations, the 3 Agency shall have authority to enter at all reasonable times 4 upon any private or public property for the purpose of 5 inspecting and investigating to ascertain possible violations 6 of this Act or of rules adopted hereunder or permits or terms 7 or conditions thereof. 8 (b) The Agency shall conduct investigations and pursue 9 enforcement of alleged violations of this Act, any rule 10 adopted pursuant to this Act, a permit granted by the Agency, 11 or a term or condition of a permit as prescribed in Section 12 30 and subsections (a), (b), and (c) of Section 31 of the 13 Environmental Protection Act and any rules adopted pursuant 14 to this Act. 15 (c) The Agency shall have the duty to administer the 16 permit and certification systems as may be established by 17 this Act or by rules adopted pursuant to this Act. 18 (d) In hearings before the Board to enforce provisions 19 of this Act, the burden shall be on the Agency to show either 20 that the respondent has violated or threatens to violate any 21 provision of this Act or any rule adopted pursuant to this 22 Act or a permit or term or condition of a permit. If such 23 proof has been made, the burden shall be on the respondent to 24 show that compliance with the Board's rules would impose an 25 arbitrary or unreasonable hardship. 26 (e) Hearings in enforcement proceedings shall be held in 27 accordance with Section 32 of the Environmental Protection 28 Act and any rules adopted thereunder. 29 (f) Board determinations and orders shall be made in 30 accordance with Section 33 of the Environmental Protection 31 Act and any rules adopted thereunder. 32 (g) The civil penalties provided for in this Section may 33 be recovered in a civil action, which may be instituted in a 34 court of competent jurisdiction or by determination or order -23- LRB093 14372 BDD 19988 b 1 of the Board. The State's Attorney of the county in which the 2 alleged violation occurred, or the Attorney General, may, at 3 the request of the Agency or on his or her own motion, 4 institute a civil action in a court of competent jurisdiction 5 to recover civil penalties and an injunction to restrain 6 violations of the Act. 7 (h) Any person who violates any provision of this Act or 8 any rule adopted pursuant to this Act, or any permit or term 9 or condition thereof, or that violates any determination or 10 order of the Board pursuant to this Act, shall be liable for 11 a civil penalty of not to exceed $10,000 per day of 12 violation; such penalties may, upon order of the Board or a 13 court of competent jurisdiction, be made payable to the 14 Environmental Protection Trust Fund, to be used in accordance 15 with the provisions of the Environmental Protection Trust 16 Fund Act. 17 (i) In determining the appropriate civil penalty to be 18 imposed under this Section, the Board is authorized to 19 consider any matters of record in mitigation or aggravation 20 of penalty, including but not limited to the following 21 factors: 22 (1) The duration and gravity of the violation. 23 (2) The presence or absence of due diligence on the 24 part of the person in attempting to comply with 25 requirements of this Act and rules adopted hereunder or 26 to secure relief therefrom as provided by this Act. 27 (3) Any economic benefits accrued by the person 28 because of delay in compliance with requirements. 29 (4) The amount of monetary penalty which will serve 30 to deter further violations by the person and to 31 otherwise aid in enhancing voluntary compliance with this 32 Act by the person and other persons similarly subject to 33 the Act. 34 (5) The number, proximity in time, and gravity of -24- LRB093 14372 BDD 19988 b 1 previously adjudicated violations of this Act by the 2 person. 3 (j) A violation of any provision of this Act or any rule 4 adopted pursuant to this Act, or any permit or term or 5 condition thereof, or any violation of any determination or 6 order of the Board pursuant to this Act, shall not be deemed 7 a criminal offense. 8 (k) All final orders imposing civil penalties pursuant 9 to this Section shall prescribe the time for payment of such 10 penalties. If any such penalty is not paid within the time 11 prescribed, interest on the penalty at the rate set forth in 12 subsection (a) of Section 1003 of the Illinois Income Tax Act 13 shall be paid for the period from the date payment is due 14 until the date payment is received. However, if the time for 15 payment is stayed during the pendency of an appeal, interest 16 shall not accrue during such stay. 17 Section 55. Fees. 18 (a) Any person seeking a permit, coverage under a 19 general permit, or filing a notification of activities to be 20 conducted on a Class III wetland from the Agency shall pay a 21 fee to the Agency at the time of filing an application or 22 notification. The following fee amounts shall apply: 23 (1) The fee for a Class IA or Class IB wetland is 24 $400 if the site is less than 1 acre; $500 if the site is 25 equal to or greater than 1 acre but less than 10 acres; 26 $750 if the site is equal to or greater than 10 acres but 27 less than 50 acres; and $1,000 if the site is equal to or 28 greater than 50 acres. In the event that the Agency is 29 required to review a mitigation plan for any such site, 30 an additional fee will be required at the time the 31 applicant is notified that such a review is required. The 32 additional mitigation review fee shall be: $750 if the 33 affected wetland is less than 0.5 acres; $1000 if the -25- LRB093 14372 BDD 19988 b 1 affected wetland is equal to or greater than 0.5 acres 2 but less than 2 acres; $1250 if the site is equal to or 3 greater than 2 acres but less than 5 acres; and $1,500 if 4 the site is equal to or greater than 5 acres. 5 (2) The fee for a Class II wetland shall be 6 calculated at 50% of the fee charged to a Class IA or 7 Class IB wetland. 8 (3) The fee for filing a notice of intent to be 9 covered under a general permit shall be $200. 10 (4) The fee for filing a notification of activities 11 to be conducted on a Class III wetland shall be $150. 12 (b) The Agency shall establish procedures for the 13 collection of fees required under this Act. 14 (c) There is hereby created in the State Treasury a 15 special fund to be known as the Wetlands Management Fund. 16 There shall be deposited into the Fund all monies received 17 from the fees collected under subsection (a) of this Section. 18 Pursuant to appropriation, monies from the Fund shall be 19 allocated in amounts deemed necessary to implement this Act 20 and, if sufficient funds are available, for the 21 administration of other permit programs administered by the 22 Agency. 23 (d) For the purposes of this Section, "site" means the 24 area of land that will be disturbed or altered as a result of 25 the project or development that may affect a wetland. 26 Section 60. Home rule; delegation of authority. 27 (a) A home rule unit may not regulate wetlands except as 28 provided in subsection (b) and (c) of this Section. This 29 Section is a limitation under subsection (i) of Section 6 of 30 Article VII of the Illinois Constitution on the concurrent 31 exercise by home rule units of powers in functions exercised 32 by the State. 33 (b) In cases where a county government has implemented a -26- LRB093 14372 BDD 19988 b 1 wetlands regulation program prior to March 1, 2003, that 2 county will be permitted to regulate wetlands until July 1, 3 2007. Beginning on July 1, 2007, the limitation in subsection 4 (a) of this Section shall take effect. 5 (c) The provisions of any ordinance or resolution 6 adopted before, on, or after the effective date of this Act 7 of the 93d General Assembly by any unit of local government 8 that impose restrictions or limitations on the 9 identification, classification, notification, permitting, or 10 regulatory criteria for wetlands are invalid, except as 11 authorized by subsection (d) of this Section, and all those 12 existing ordinances and resolutions are declared null and 13 void. This subsection shall not be deemed to be a limitation 14 on any legitimate statutory authority of any unit of local 15 government to regulate flood control or stormwater 16 management, so long as those rules are not more stringent 17 than the rules adopted under Section 40 of this Act. 18 (d) The Agency may enter into written delegation 19 agreements with any county government under which it may 20 delegate all or portions of its inspecting, investigating, 21 and enforcement functions under this Act. In cases where a 22 county government has implemented a wetlands regulation 23 program prior to March 1, 2003, the Agency shall, upon the 24 receipt of a request for delegation by such county 25 government, delegate all or portions of its functions under 26 this Act, as requested. Such delegation agreements shall, at 27 a minimum, require that: 28 (1) All of the administrative procedures and 29 operations performed by the delegated county government 30 shall be performed in accordance with the provisions of 31 this Act and with rules adopted pursuant to Section 40 of 32 this Act. 33 (2) The general permits issued under Section 35 of 34 this Act shall be administered by the delegated county -27- LRB093 14372 BDD 19988 b 1 government for those activities covered under the general 2 permits. 3 (3) At the time of filing a permit application or 4 notification with a delegated county government, the 5 person shall file a certification with the Agency 6 attesting to such filing. 7 (4) Within 30 days after the delegated county 8 government takes final action on a permit or 9 notification, a copy of the permit or notice action shall 10 be filed with the Agency. 11 (5) Any final action taken by a delegated county 12 government may be appealed in accordance with the 13 provisions of Section 45 of this Act. 14 (e) Notwithstanding any other provision of law to the 15 contrary, no unit of local government shall be liable for any 16 injury resulting from the exercise of its authority pursuant 17 to such a delegation agreement, unless the injury is 18 proximately caused by the willful and wanton negligence of an 19 agent or employee of the unit of local government, and any 20 policy of insurance coverage issued to a unit of local 21 government may provide for the denial of liability and the 22 nonpayment of claims based upon injuries for which the unit 23 of local government is not liable pursuant to this 24 subsection. 25 Section 90. The State Finance Act is amended by adding 26 Section 5.620 as follows: 27 (30 ILCS 105/5.620 new) 28 Sec. 5.620. The Wetlands Management Fund. 29 Section 97. Severability. The provisions of this Act are 30 severable under Section 1.31 of the Statute on Statutes.