Full Text of SB0771 103rd General Assembly
SB0771sam001 103RD GENERAL ASSEMBLY | Sen. Laura Ellman Filed: 4/9/2024 | | 10300SB0771sam001 | | LRB103 03226 BDA 71956 a |
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| 1 | | AMENDMENT TO SENATE BILL 771
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 771 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Wetlands Protection Act. | 6 | | Section 5. Findings and intent. The General Assembly | 7 | | finds: | 8 | | (1) In 1818, Illinois contained an estimated 8.2 million | 9 | | acres of wetlands. Based on the Illinois portion of the | 10 | | National Wetlands Inventory, less than 9% of those original | 11 | | acres of wetlands remain. | 12 | | (2) As a result of the significant loss in wetland | 13 | | acreage, there has been a corresponding loss in the functional | 14 | | values and benefits that wetlands provide. | 15 | | (3) Illinois is bordered by 880 miles of rivers, which are | 16 | | critical to navigation, commerce, recreation, and ecosystem |
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| 1 | | health at home and downstream to the Gulf of Mexico, and the | 2 | | health of Illinois rivers is heavily influenced by the health | 3 | | of the tributaries and small streams that flow into them. | 4 | | (4) In Illinois, 9,894 total miles of streams provide | 5 | | water for surface water intakes, supplying public drinking | 6 | | water systems that rely at least in part on intermittent, | 7 | | ephemeral, or headwater streams. | 8 | | (5) Continued loss of Illinois' wetlands and small streams | 9 | | may deprive the People of the State of some or all of the | 10 | | benefits that they provide, including: | 11 | | (A) reducing flood damages and protecting vulnerable | 12 | | communities by absorbing, storing, and conveying peak | 13 | | flows from storms; | 14 | | (B) improving water quality by serving as | 15 | | sedimentation and filtering basins and as natural | 16 | | biological treatment areas; | 17 | | (C) providing breeding, nesting, foraging, and | 18 | | protective habitat for approximately 40% of the State's | 19 | | threatened and endangered plants and animals, in addition | 20 | | to other forms of fish, wildlife, game, waterfowl, and | 21 | | shorebirds; | 22 | | (D) protecting underground water resources and helping | 23 | | to recharge rivers, streams, and local or regional | 24 | | underground water supplies; | 25 | | (E) serving as recreational areas for hunting, | 26 | | fishing, boating, hiking, bird watching, photography, and |
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| 1 | | other uses; | 2 | | (F) providing open space and aesthetic values, | 3 | | particularly in rapidly developing areas; | 4 | | (G) providing unique educational and research | 5 | | opportunities because of their high diversity of plants | 6 | | and animals, their support for a high incidence of | 7 | | threatened and endangered species, and their function as a | 8 | | natural buffer for rivers, lakes, and streams; | 9 | | (H) supplying nutrients in freshwater food cycles and | 10 | | serving as nursery areas and sanctuaries for young fish; | 11 | | and | 12 | | (I) helping to protect shorelines from the forces of | 13 | | water erosion. | 14 | | (6) Our changing climate and its more extreme and less | 15 | | predictable weather patterns heighten the need for some or all | 16 | | of the benefits that Illinois' wetlands provide, including | 17 | | flood control, coastal resilience, water quality, aquifer | 18 | | recharge, habitat, and maintenance of baseflow to recharge | 19 | | rivers, streams, and local or regional underground water | 20 | | supplies. | 21 | | (7) Illinois historically relied on the federal Clean | 22 | | Water Act's permit program administered by the U.S. Army Corps | 23 | | of Engineers and the U.S. Environmental Protection Agency to | 24 | | prevent harm to aquatic resources from unauthorized discharges | 25 | | of dredge or fill material. | 26 | | (8) After rejection of the 1989 Wetland Delineation Manual |
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| 1 | | and in light of uncertainty about federal protections for some | 2 | | "isolated" wetlands, the General Assembly passed the | 3 | | Interagency Wetland Policy Act of 1989 to protect these | 4 | | wetlands from State agency actions and achieve no net loss of | 5 | | wetlands. | 6 | | (9) Recently, the Supreme Court's decision in Sackett v. | 7 | | EPA rolled back the scope of waters of the United States, | 8 | | thereby removing federal Clean Water Act protections for many | 9 | | waters of the United States, including wetlands that provide | 10 | | significant flood control protections, such as bottomland | 11 | | hardwood forested wetlands that are separated from the | 12 | | Illinois River by levees. | 13 | | (10) It is important for Illinois to adopt protections | 14 | | under State law to reinstate protections lost by rolling back | 15 | | the scope of the federal Clean Water Act. | 16 | | Section 10. Definitions. | 17 | | "Advanced identification site" or "ADID site" means an | 18 | | aquatic site that has been determined to provide biological | 19 | | values by the U.S. Army Corps of Engineers and U.S. | 20 | | Environmental Protection Agency Advanced Identification Study | 21 | | in accordance with 40 CFR Part 230.80 as of the effective date | 22 | | of this Act. | 23 | | "Affected property" means any property upon which a | 24 | | regulated activity is conducted. | 25 | | "Agency" means the Illinois Environmental Protection |
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| 1 | | Agency. | 2 | | "Agricultural land" means land that is used for normal | 3 | | farming or ranching activities that are exempt from regulation | 4 | | under Section 404(f) of the federal Clean Water Act. | 5 | | "Approved county or district" means a county or district | 6 | | with a stormwater program that has been approved under Section | 7 | | 55 to issue permits under this Act instead of the Department of | 8 | | Natural Resources. | 9 | | "Approved wetland specialist" means a person who has met | 10 | | the educational, training, and field experience requirements | 11 | | that have been adopted, by rule, under this Act or set forth in | 12 | | an approved county or district code and that assure | 13 | | knowledgeable wetland delineations using the Corps of | 14 | | Engineers Wetland Delineation Manual in a manner that is | 15 | | consistent with subsection (f) of Section 25 of this Act. | 16 | | "Avoidance" means any action that is taken in a manner | 17 | | that will cause a regulated activity not to occur and that is | 18 | | consistent with the federal Clean Water Act 404(b)(1) | 19 | | Guidelines developed by the U.S. Environmental Protection | 20 | | Agency and the U.S. Army Corps of Engineers. | 21 | | "Bog" means a peat-accumulating wetland that has no | 22 | | significant inflows or outflows and that supports acidophilic | 23 | | mosses, particularly sphagnum, resulting in highly acidic | 24 | | conditions. | 25 | | "Bottomland hardwood" means forested riverine floodplain | 26 | | forest, including flatwoods in northeastern Illinois, that are |
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| 1 | | located in the 100-year flood plain of Illinois rivers and | 2 | | streams and that are at least seasonally flooded. | 3 | | "Class I wetland" means a top tier wetland as indicated by | 4 | | type (such as bog, bottomland hardwood forest, or panne), | 5 | | designation (such as Ramsar wetland of international | 6 | | importance), or function (such as threatened or endangered | 7 | | species habitat or important flood protection) consistent with | 8 | | Section 25 of this Act. Class I wetlands do not include waters | 9 | | of the United States. | 10 | | "Class II wetland" means a wetland, including its | 11 | | contiguous area, that is larger than 0.5 acres and is not a | 12 | | Class I wetland. Class II wetlands do not include waters of the | 13 | | United States. | 14 | | "Class III wetland" means a wetland, including its | 15 | | contiguous area, that is 0.5 acres or smaller and is not a | 16 | | Class I wetland. Class III wetlands do not include waters of | 17 | | the United States. | 18 | | "Contiguous area" means the portion of a wetland that | 19 | | extends beyond the property boundary of the affected property. | 20 | | "Corps of Engineers" means the U.S. Army Corps of | 21 | | Engineers. | 22 | | "Corps of Engineers Wetlands Delineation Manual" means the | 23 | | 1987 U.S. Army Corps of Engineers, Wetlands Delineation | 24 | | Manual, Research Program Technical Report Y-87-1, and any | 25 | | applicable Regional Supplements thereto. | 26 | | "Cypress swamp" means forested, permanent, or |
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| 1 | | semi-permanent bodies of water, with species assemblages | 2 | | characteristic of the Gulf of Mexico and Southeastern Coastal | 3 | | Plains and including bald cypress, which are found in extreme | 4 | | southern Illinois. | 5 | | "Department" means the Department of Natural Resources. | 6 | | "Director" means the Director of Natural Resources. | 7 | | "Fen" means a wetland fed by an alkaline water source, | 8 | | such as a calcareous spring or seep. | 9 | | "General permit" means a permit issued by the approved | 10 | | county, district, or the Department in a manner that is | 11 | | consistent with Section 40 of this Act and that pre-authorizes | 12 | | a category of activities that are similar in nature and impact | 13 | | on water quality, will have only minimal adverse effects when | 14 | | performed separately, will have minimal cumulative impacts on | 15 | | water quality provided the permittee complies with all of the | 16 | | conditions of the general permit, and will not cause or | 17 | | contribute to a violation of State water quality standards. | 18 | | "General permit" includes a U.S. Army Corps of Engineers | 19 | | nationwide permit. | 20 | | "High-Quality Aquatic Resources" or "HQAR" means | 21 | | high-quality aquatic resources consistent with the guidelines | 22 | | of the Chicago District of the U.S. Army Corps of Engineers or | 23 | | approved county or district codes. | 24 | | "Individual permit" means a permit issued by the | 25 | | Department under Section 30 of this Act after case-specific | 26 | | sequenced review (avoidance, minimization, mitigation) of the |
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| 1 | | proposed project and certification of compliance with State | 2 | | water quality standards. | 3 | | "In lieu fee mitigation" means a payment to an approved in | 4 | | lieu fee program made by a permittee to satisfy a mitigation | 5 | | requirement in accordance with this Act and implementing | 6 | | rules. | 7 | | "Maintenance" means work to repair and keep in good | 8 | | working order existing structures in wetlands, including | 9 | | emergency reconstruction of recently damaged parts of | 10 | | currently serviceable structures, including dikes, dams, | 11 | | levees, groins, riprap, breakwaters, causeways, and bridge | 12 | | abutments or approaches, and transportation structures. | 13 | | "Maintenance" does not include any modification that changes | 14 | | the character, scope, or size of the original fill design but | 15 | | such a modification may be eligible to use Nationwide Permit | 16 | | 3, Maintenance. | 17 | | "Metropolitan Water Reclamation District" or "district" | 18 | | means a district organized under the Metropolitan Water | 19 | | Reclamation District Act. | 20 | | "Minimization" means reducing, as much as practicable, the | 21 | | adverse environmental impact of an unavoidable regulated | 22 | | activity in a manner that is consistent with this Act and the | 23 | | federal Clean Water Act 404(b)(1) Guidelines developed by the | 24 | | U.S. Environmental Protection Agency and the U.S. Army Corps | 25 | | of Engineers. | 26 | | "Mitigation" means the restoration, establishment, |
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| 1 | | enhancement, or protection and maintenance of wetlands and | 2 | | other aquatic resources for the purpose of compensating for | 3 | | unavoidable adverse impacts that remain after all appropriate | 4 | | and practicable avoidance and minimization have been achieved. | 5 | | Mitigation must be consistent with the requirements of this | 6 | | Act. Mitigation may include wetlands creation if authorized by | 7 | | the Department in situations in which other mitigation is | 8 | | impractical and the likelihood of success is high. Wetland | 9 | | creation is restricted to areas that are currently | 10 | | non-wetlands. | 11 | | "Mitigation bank" means a site, or suite of sites, where | 12 | | aquatic resources, such as wetlands, streams, wetland buffers, | 13 | | and riparian areas, are restored, established, enhanced, or | 14 | | preserved for the purpose of providing compensatory mitigation | 15 | | for impacts authorized by permits under this Act. A mitigation | 16 | | bank may be approved to provide mitigation for impacts to | 17 | | wetlands that have been approved by the Corps of Engineers | 18 | | under Section 404 of the federal Clean Water Act, for impacts | 19 | | to wetlands under the Illinois Interagency Wetlands Policy Act | 20 | | of 1989, or for both. A mitigation bank must be approved by the | 21 | | Department in accordance with this Act and implementing rules; | 22 | | by an approved county; or by the Corps of Engineers in | 23 | | accordance with the process established in 33 CFR 332.8 and 40 | 24 | | CFR 230.98. | 25 | | "Nationwide permit" means a nationwide permit issued by | 26 | | the U.S. Army Corps of Engineers as of the effective date of |
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| 1 | | this Act. | 2 | | "Panne" means wet interdunal flats located near Lake | 3 | | Michigan. "Panne" includes dune and swale wetlands. | 4 | | "Permit" means a written authorization issued by the | 5 | | Department of Natural Resources under this Act and | 6 | | implementing rules. "Permit" includes general permits and | 7 | | individual permits. | 8 | | "Person" means an individual, partnership, co-partnership, | 9 | | firm, company, limited liability company, corporation, | 10 | | association, joint-stock company, trust, estate, political | 11 | | subdivision, state or federal agency or other legal entity, or | 12 | | its legal representative, employee, agent or assigns. | 13 | | "Predischarge notification" means notice that a permittee | 14 | | must provide the Department before undertaking an activity | 15 | | authorized by a general permit. | 16 | | "Prior converted cropland" means a wetland that was | 17 | | converted to agricultural use before December 23, 1985, that | 18 | | had an agricultural commodity produced on it at least once | 19 | | before December 23, 1985, that remains available for | 20 | | agricultural commodity production, and that, as of December | 21 | | 23, 1985, did not support woody vegetation and met the | 22 | | following hydrologic criteria for a farmed wetland: (i) | 23 | | inundation was less than 15 consecutive days during the | 24 | | growing season or 10% of the growing season, whichever is | 25 | | less, in most years (50% chance or more); and (ii) if a | 26 | | pothole, ponding was less than 7 consecutive days during the |
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| 1 | | growing season in most years (50% chance or more) and | 2 | | saturation was less than 14 consecutive days during the | 3 | | growing season most years (50% chance or more). However, if | 4 | | the prior converted cropland is changed out of agricultural | 5 | | use (including conservation) and the area regains wetland | 6 | | attributes, the area may become subject to this Act under | 7 | | Section 15. | 8 | | "Regulated activity" means the discharge of dredged or | 9 | | fill material into a wetland subject to this Act. | 10 | | "Threatened or endangered species" means those species | 11 | | that have been designated as threatened or endangered under | 12 | | the Illinois Endangered Species Protection Act and those | 13 | | species that have been listed as threatened or endangered | 14 | | under the federal Endangered Species Act. | 15 | | "Upland" means non-wetland, dry land. | 16 | | "Voluntary aquatic habitat restoration project" means | 17 | | activities that are voluntarily undertaken (not as required | 18 | | mitigation) to restore, reestablish, rehabilitate, or enhance | 19 | | altered, degraded, or former aquatic habitats that result in a | 20 | | net increase in aquatic habitat functions and services | 21 | | consistent with historic, pre-disturbance functions and | 22 | | services of the aquatic habitat. | 23 | | "Wetlands" means those areas that are inundated or | 24 | | saturated by surface or ground water at a frequency or | 25 | | duration sufficient to support, and that under normal | 26 | | circumstances do support, a prevalence of vegetation typically |
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| 1 | | adapted for life in saturated soil conditions. | 2 | | Section 15. Exemptions. | 3 | | (a) Consistent with Section 404(f) of the federal Clean | 4 | | Water Act, as long as they do not have as their purpose | 5 | | bringing a wetland into a use to which it was not previously | 6 | | subject and do not entail discharge of toxic pollutants, the | 7 | | following activities are not prohibited by or otherwise | 8 | | subject to regulation under this Act: | 9 | | (1) Normal farming, silviculture, and ranching | 10 | | activities, including plowing, seeding, cultivating, minor | 11 | | drainage, and harvesting for the production of food, | 12 | | fiber, and forest products, or upland soil and water | 13 | | conservation practices. | 14 | | (2) Maintenance, including emergency reconstruction of | 15 | | recently damaged parts, of currently serviceable | 16 | | structures, such as dikes, dams, levees, groins, riprap, | 17 | | breakwaters, causeways, bridge abutments or approaches, | 18 | | and transportation structures. Maintenance does not | 19 | | include any modification that changes the character, | 20 | | scope, or size of the original fill design. Emergency | 21 | | reconstruction must occur within a reasonable period of | 22 | | time after damage occurs in order to qualify for this | 23 | | exemption. | 24 | | (3) Construction or maintenance of farm or stock ponds | 25 | | or irrigation ditches, or the maintenance (but not |
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| 1 | | construction) of drainage ditches. Discharge associated | 2 | | with siphons, pumps, headgates, wingwalls, weirs, | 3 | | diversion structures, and such other facilities as are | 4 | | appurtenant and functionally related to irrigation and | 5 | | ditches are included in this definition. | 6 | | (4) Construction of temporary sedimentation basins on | 7 | | a construction site which does not include any regulated | 8 | | activities within a wetland. As used in this paragraph, | 9 | | the term "construction site" means any site involving the | 10 | | erection of buildings, roads, and other discrete | 11 | | structures and the installation of support facilities | 12 | | necessary for construction and utilization of such | 13 | | structures. "Construction site" also includes any other | 14 | | land areas which involve land-disturbing excavation | 15 | | activities, including quarrying or other mining | 16 | | activities, where an increase in the runoff of sediment is | 17 | | controlled through the use of temporary sedimentation | 18 | | basins. | 19 | | (5) Construction or maintenance of farm roads or | 20 | | forest roads or temporary roads for moving mining | 21 | | equipment, where such roads are constructed and | 22 | | maintained, in accordance with best management practices, | 23 | | to assure that flow and circulation patterns and chemical | 24 | | and biological characteristics of the wetland are not | 25 | | impaired, that the reach of the wetland is not reduced, | 26 | | and that any adverse effect on the aquatic environment |
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| 1 | | will be otherwise minimized. | 2 | | (6) Except for Class I wetlands, activities for the | 3 | | placement of pilings for linear projects, including | 4 | | bridges, elevated walkways, and power line structures in | 5 | | accordance with best management practices, to assure that | 6 | | the flow and circulation patterns and chemical and | 7 | | biological characteristics of the wetland are not | 8 | | impaired, that the reach of the wetland is not reduced, | 9 | | and that any adverse effect on the aquatic environment | 10 | | will be otherwise minimized. | 11 | | (b) Any exemption that is authorized by and pertaining to | 12 | | wetlands that are subject to regulation under the federal | 13 | | Clean Water Act, or regulations promulgated thereunder, at the | 14 | | time of enactment of this Act, shall also be an exemption for | 15 | | the purpose of this Act. | 16 | | (c) The following are not jurisdictional wetlands for | 17 | | purposes of this Act: | 18 | | (1) Waste treatment systems, including treatment ponds | 19 | | or lagoons designed to meet the requirements of the | 20 | | federal Clean Water Act and comply with State water | 21 | | quality standards. | 22 | | (2) Prior converted cropland unless there has been a | 23 | | change in use out of agricultural or conservation use and | 24 | | the area regains wetland attributes. | 25 | | (3) Ditches (including roadside ditches) excavated | 26 | | wholly in and draining only dry land and that do not carry |
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| 1 | | a relatively permanent flow of water. | 2 | | (4) An artificially irrigated area that would revert | 3 | | to upland if the irrigation ceased. This shall also | 4 | | include the pumping of water for purposes of waterfowl | 5 | | hunting or creating waterfowl habitat. | 6 | | (5) An artificial lake or pond created by excavating | 7 | | or diking upland to collect and retain water and which are | 8 | | used exclusively for such purposes as stock watering, | 9 | | irrigation, settling basins, or rice growing. | 10 | | (6) Artificial reflecting or swimming pools or other | 11 | | small ornamental bodies of water created by excavating or | 12 | | diking dry land to retain water for primarily aesthetic | 13 | | reasons. | 14 | | (7) A water-filled depression created in dry land | 15 | | incidental to construction activity and pits excavated in | 16 | | dry land for the purpose of obtaining fill, sand, or | 17 | | gravel unless and until the construction or excavation | 18 | | operation is abandoned and the resulting waterbody meets | 19 | | the definition of "waters of the State" consistent with | 20 | | the Environmental Protection Act, including Section 3.550 | 21 | | of the Environmental Protection Act. | 22 | | (8) Swales and erosional features, including gullies, | 23 | | rills, and small washes, characterized by low volume, | 24 | | infrequent, or short duration flow. | 25 | | (9) Wetlands created by the construction of stormwater | 26 | | facilities in upland areas, provided that the facility was |
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| 1 | | not created for the purpose of wetland mitigation. | 2 | | (d) Any activity covered by the Interagency Wetland Policy | 3 | | Act of 1989 is exempt from the provisions of this Act. This | 4 | | subsection (d) applies only if the applicable governmental | 5 | | entity is in compliance with the Interagency Wetland Policy | 6 | | Act of 1989. | 7 | | Section 20. Applicability. The requirements of this Act | 8 | | apply to all wetlands as that term is defined in this Act. If a | 9 | | wetland ceases to meet that definition because it becomes | 10 | | subject to regulation under the federal Clean Water Act, it | 11 | | shall no longer be subject to the provisions of this Act. The | 12 | | Department may enter into an agreement with the Corps of | 13 | | Engineers to coordinate the permit program under this Act with | 14 | | the Corps of Engineers permit program under Section 404 of the | 15 | | federal Clean Water Act. | 16 | | Section 25. Regulated activities; individual and general | 17 | | permits; wetland classification; mitigation; delineation. | 18 | | (a) No person may discharge dredged or fill material into | 19 | | a wetland protected by this Act except in accordance with the | 20 | | terms of an individual or general permit issued by the | 21 | | Department under this Section or Section 40 of this Act. | 22 | | (b) Wetlands shall be classified as follows: | 23 | | (1) The Department shall classify a wetland as Class I | 24 | | if the wetland: |
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| 1 | | (A) is or encompasses a bog, bottomland hardwood | 2 | | forest, fen, panne, or cypress swamp; | 3 | | (B) has been designated a Ramsar wetland of | 4 | | international importance under the Convention on | 5 | | Wetlands; | 6 | | (C) is designated for important flood protection | 7 | | services under paragraph (3); | 8 | | (D) is habitat for a threatened or endangered | 9 | | species listed under State or federal law; | 10 | | (E) has a Floristic Quality Index that is equal to | 11 | | or greater than 20 or a mean coefficient of | 12 | | conservatism (Mean C) equal to or greater than 3.5, | 13 | | determined in accordance with rules adopted by the | 14 | | Department; | 15 | | (F) is or encompasses an ADID site; or | 16 | | (G) is a High-Quality Aquatic Resource. | 17 | | (2) The Department shall classify a non-Class I | 18 | | wetland as a Class II wetland if the wetland, including | 19 | | its contiguous area, is larger than 0.5 acres. However, if | 20 | | a non-Class I wetland is smaller than 0.5 acres it shall be | 21 | | designated a Class III wetland. | 22 | | (3) The Department may, in consultation with the | 23 | | Illinois Emergency Management Agency and Office of | 24 | | Homeland Security, the Federal Emergency Management Agency | 25 | | or local authorities, designate a wetland as a Class I | 26 | | wetland due to important flood protection services |
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| 1 | | protecting human life and property if the wetland is no | 2 | | longer protected under the federal Clean Water Act. In | 3 | | addition, an approved county or district under Section 55 | 4 | | may designate high function wetlands as Class I wetlands | 5 | | through a process similar to Lake County's Wetland | 6 | | Restoration and Preservation Plan. | 7 | | (c) Mitigation shall be required for all regulated | 8 | | activities regardless of the type of permit and shall be | 9 | | conducted according to the following preferred order: | 10 | | (1) Discharges impacting Class I wetlands shall be | 11 | | mitigated through either on-site mitigation or off-site | 12 | | mitigation at an approved wetland mitigation bank within | 13 | | the same watershed as the location of the proposed fill. | 14 | | Mitigation shall be in kind, restoring to the maximum | 15 | | degree practicable as determined by the Department, both | 16 | | the type and functions of the wetland that will be | 17 | | affected by the regulated activity. The mitigation ratio | 18 | | shall be 5:1 unless the Director, for good cause shown and | 19 | | on a case-by-case basis, authorizes a higher mitigation | 20 | | ratio not to exceed 6:1 or a lower mitigation ratio not | 21 | | less than 4:1. The in lieu fee option may be used for | 22 | | mitigation when there are no available mitigation credits | 23 | | within the watershed. | 24 | | (2) Discharges impacting Class II wetlands shall be | 25 | | mitigated through either on-site mitigation or off-site | 26 | | mitigation at an approved wetland mitigation bank within |
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| 1 | | the same watershed as the location of the proposed fill. | 2 | | Mitigation shall be in kind, restoring to the maximum | 3 | | degree practicable as determined by the Department, both | 4 | | the type and functions of the wetland that will be | 5 | | affected by the regulated activity. The mitigation ratio | 6 | | shall be 3:1 unless the Director, for good cause shown and | 7 | | on a case-by-case basis, authorizes a higher mitigation | 8 | | ratio not to exceed 3.5:1 or a lower mitigation ratio not | 9 | | less than 2.5:1. The in lieu fee option may be used for | 10 | | mitigation when there are no available mitigation credits | 11 | | within the watershed. | 12 | | (3) Discharges impacting Class III wetlands shall be | 13 | | mitigated through either participation in an approved | 14 | | wetland mitigation bank or an approved in-lieu fee | 15 | | program, unless the Department for good cause objects. The | 16 | | mitigation ratio shall be 1.5:1 for compensation through | 17 | | an approved wetland mitigation bank and 2:1 for | 18 | | compensation through an approved in-lieu fee program. The | 19 | | Director, for good cause shown and on a case-by-case | 20 | | basis, may authorize a higher or lower mitigation ratio. | 21 | | (d) Individuals seeking a permit are responsible for | 22 | | wetland delineation and classification made by or under the | 23 | | supervision of an approved wetland specialist. Wetland | 24 | | delineations shall be made in accordance with the Corps of | 25 | | Engineers Wetland Delineation Manual. Classifications shall be | 26 | | in accordance with this Section or an approved program under |
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| 1 | | Section 55. Delineations by the Corps of Engineers, by | 2 | | approved counties, or by Corps of Engineers approved agencies | 3 | | shall be honored. | 4 | | (e) Individuals seeking an individual permit shall provide | 5 | | the Department with a complete application, including, at a | 6 | | minimum (i) a map of the area that will be affected by the | 7 | | activity, including wetland and water boundaries for the areas | 8 | | affected and the existing uses and structures; (ii) a wetland | 9 | | delineation made in accordance with the Corps of Engineers | 10 | | Wetland Delineation Manual by or under the supervision of an | 11 | | approved wetland specialist and this Section; (iii) a | 12 | | description of the proposed activity, including its purpose, | 13 | | the location and dimensions of any structures, grading or | 14 | | fills, drainage, roads, sewers and water supply, parking lots, | 15 | | stormwater facilities, discharge of pollutants and on-site | 16 | | waste disposal; (iv) a description of any public benefit to be | 17 | | derived from the proposed project; and (v) the names and | 18 | | addresses of adjacent landowners as determined by the current | 19 | | tax assessment rolls. The Department shall notify the | 20 | | applicant within 20 business days if the permit application is | 21 | | incomplete and provide a reasonable time for the applicant to | 22 | | correct deficiencies in the permit application. Within 90 | 23 | | business days of receipt of a complete permit application, the | 24 | | Department shall either issue the permit, deny the permit, or | 25 | | issue the permit with conditions. All individual permit | 26 | | decisions are subject to public comment. If a public hearing |
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| 1 | | is held, the deadline to make a permit determination is | 2 | | extended by 45 business days. | 3 | | (f) The Department shall evaluate individual permit | 4 | | requests through the following sequence: (i) avoidance of | 5 | | impacts to aquatic resources if a less environmentally | 6 | | damaging practicable alternative exists; (ii) minimization of | 7 | | unavoidable impacts by taking appropriate and practicable | 8 | | steps such as reduction of the footprint of the fill; (iii) | 9 | | compensatory mitigation for any remaining impacts to aquatic | 10 | | resources in accordance with this Act. The Department shall | 11 | | not issue an individual permit pursuant to this Section unless | 12 | | the Agency has certified that the proposed activity will not | 13 | | cause or contribute to a violation of a State water quality | 14 | | standard. The Agency shall, within 80 business days of receipt | 15 | | of a complete application, approve, deny, or approve with | 16 | | conditions the water quality certification. The applicant for | 17 | | a permit may waive the requirement that the Agency must take | 18 | | final action on the water quality certification under this | 19 | | paragraph within 80 days after the filing of the application. | 20 | | (g) Upon request by an applicant, the Department may issue | 21 | | an after-the-fact permit if it determines that the activities | 22 | | covered by the after-the-fact permit were undertaken and | 23 | | conducted in response to emergency circumstances that | 24 | | constituted an imminent threat to persons, public | 25 | | infrastructure, personal property, or uninterrupted utility | 26 | | service. The request for an after-the-fact permit must be made |
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| 1 | | as soon as reasonably possible after the event. The Department | 2 | | shall require compensatory mitigation. | 3 | | Section 30. General permits. | 4 | | (a) Notwithstanding Section 25, any person who intends to | 5 | | conduct a regulated activity within the State may do so in | 6 | | accordance with a general permit issued by the Department | 7 | | under this Section. | 8 | | (b) Permits for all categories of activities, subject to | 9 | | the same permit limitations and conditions, that are the | 10 | | subject of a nationwide permit issued by the Corps of | 11 | | Engineers, in effect on the date of the enactment of this Act, | 12 | | are adopted as general permits covering regulated activities | 13 | | subject to this Act. Notwithstanding the foregoing, all such | 14 | | permits will include a predischarge notification requirement | 15 | | and compensatory mitigation, unless the permit states | 16 | | compensatory mitigation is not required because the work is | 17 | | designed to improve water quality. In any case, compensatory | 18 | | mitigation is not required for impacts below 1/10 of an acre. | 19 | | (c) The Department may adopt general permits, through | 20 | | public notice and comment rulemaking in accordance with the | 21 | | Illinois Administrative Procedure Act covering other | 22 | | activities that would be subject to the same permit | 23 | | limitations and conditions, if it determines that the | 24 | | activities in such a category will cause only minimal adverse | 25 | | environmental effects when performed separately, will have |
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| 1 | | only minimal cumulative adverse effect on the environment, | 2 | | will not cause or contribute to a violation of State water | 3 | | quality standards when performed separately, and will have | 4 | | only a minimal cumulative adverse effect on water quality. The | 5 | | Department shall prescribe best management practices for any | 6 | | general permit issued under this Section. The Department shall | 7 | | include compensatory mitigation requirements in general | 8 | | permits for impacts that exceed 1/10 of an acre. | 9 | | (d) The Department shall adopt a general permit for: | 10 | | (1) construction or maintenance of access roads for | 11 | | utility lines, substations, or related equipment or | 12 | | facilities with adequate culverts, bridges, or other | 13 | | structures to provide freshwater connectivity and passage | 14 | | for fish or other aquatic life; | 15 | | (2) activities for the purpose of preserving and | 16 | | enhancing aviation safety or to prevent an airport hazard; | 17 | | and | 18 | | (3) conservation activities, such as voluntary aquatic | 19 | | habitat restoration and fish passage. | 20 | | The Department shall develop the general permit under | 21 | | paragraph (3) in consultation with local, state, and federal | 22 | | resource agencies, such as the U.S. Fish and Wildlife Service, | 23 | | and qualified non-profit organizations engaged in aquatic | 24 | | habitat restoration as a central part of their mission. | 25 | | (e) No general permit adopted under subsection (b), (c), | 26 | | or (d) of this Section shall be for a period of more than 5 |
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| 1 | | years after the date of its adoption, and the Department shall | 2 | | revoke or modify such a general permit, after opportunity for | 3 | | public hearing, if the Department determines that the | 4 | | activities authorized by the general permit have an adverse | 5 | | impact on the environment, cause or contribute to a violation | 6 | | of State water quality standards, or are more appropriately | 7 | | authorized by individual permits. | 8 | | (f) Compliance with the terms of a general permit shall be | 9 | | deemed compliance with the provisions of this Act if the | 10 | | applicant: | 11 | | (1) files a predischarge notification in accordance | 12 | | with regulations adopted under this Act; | 13 | | (2) files all reports required by the general permit; | 14 | | (3) complies with all limitations required by the | 15 | | general permit; and | 16 | | (4) complies with compensatory mitigation | 17 | | requirements. | 18 | | (g) The Department may respond to a predischarge | 19 | | notification issued under this Section within 30 days after | 20 | | the Department receives the notice. | 21 | | Section 35. In lieu fee program and mitigation banking. | 22 | | (a) The following entities may establish and operate a | 23 | | mitigation bank or in lieu fee program consistent with this | 24 | | Act and rules implementing this Act: | 25 | | (1) State agencies; |
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| 1 | | (2) qualified for-profit and non-profit entities; and | 2 | | (3) units of local government, including, but not | 3 | | limited to, counties, the Metropolitan Water Reclamation | 4 | | District of Greater Chicago (MWRD), soil and water | 5 | | conservation districts, and county forest districts. | 6 | | (b) Mitigation banks may be established on public or | 7 | | private lands and must be located on sites that possess the | 8 | | physical, chemical, and biological characteristics to support | 9 | | establishment of the desired aquatic resources and functions, | 10 | | such as wetland hydrology. | 11 | | (c) The requirements for mitigation banks shall include a | 12 | | mitigation bank instrument, long-term management and | 13 | | protection, monitoring requirements, remedial action | 14 | | procedures, reporting requirements, and financial assurances, | 15 | | such as performance bonds. | 16 | | (d) In lieu fee programs must include an agreement between | 17 | | the in lieu fee sponsor that is similar to a mitigation bank | 18 | | instrument, a time-table, such as a requirement to use funds | 19 | | to design and implement restoration projects within 3 years; | 20 | | accounting requirements, including, but not limited to, | 21 | | watershed-based accounting; monitoring requirements; | 22 | | reporting requirements; and financial assurances. Any agency | 23 | | in lieu fee program must have provisions that protect the | 24 | | integrity of the fund and prevent this funding from being | 25 | | reassigned to other uses. |
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| 1 | | Section 40. Rulemaking and reporting. | 2 | | (a) The Department shall: | 3 | | (1) adopt rules to implement Sections 25 and 30 of | 4 | | this Act within one year after the effective date of this | 5 | | Act, including | 6 | | (A) rules for the review, issuance, denial, or | 7 | | issuance with conditions of individual permits; and | 8 | | (B) rules to promulgate, revise, or revoke general | 9 | | permits; | 10 | | (2) adopt rules to administer and prioritize use of | 11 | | funding from the Wetlands Protection Fund under Section 60 | 12 | | of this Act; | 13 | | (3) adopt rules to approve mitigation banks and in | 14 | | lieu fee programs under Section 35 of this Act, including: | 15 | | (A) criteria that an applicant to operate a | 16 | | mitigation or in lieu fee program under Section 35 of | 17 | | this Act shall meet and that are at least as stringent | 18 | | as the U.S. Army Corps of Engineers requirements set | 19 | | out in 33 CFR Part 332; | 20 | | (B) priority for mitigation banks and in lieu fee | 21 | | programs that restore previously existing wetlands and | 22 | | small streams; and | 23 | | (C) surety provisions for mitigation banks and in | 24 | | lieu fee programs; | 25 | | (4) adopt rules within one year after the effective | 26 | | date of this Act to establish the procedures under which a |
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| 1 | | governmental body with a stormwater management program | 2 | | under Section 5-1062 of the Counties Code or under Section | 3 | | 7h of the Metropolitan Water Reclamation District Act | 4 | | shall be recognized to have met the conditions of | 5 | | subsection (b) of Section 55 of this Act; | 6 | | (5) adopt rules for approval of wetland delineators | 7 | | consistent with subsection (f) of Section 25 of this Act, | 8 | | including recognition of existing county, district, or | 9 | | U.S. Army Corps of Engineers wetland delineator training | 10 | | programs, approval programs, or both; and | 11 | | (6) adopt any other rules necessary to implement and | 12 | | administer this Act. | 13 | | (b) The Department may provide by rule for any | 14 | | requirements regarding bonds or letters of credit in favor of | 15 | | the State, including conditions sufficient to secure | 16 | | compliance with conditions and limitations of a permit. | 17 | | (c) The Department may consult with the Illinois Water | 18 | | Plan Task Force. | 19 | | (d) Subject to appropriations, the Department shall do all | 20 | | of the following: | 21 | | (1) provide a report to the Governor and the Illinois | 22 | | General Assembly regarding implementation of this Act and | 23 | | recommendations, including legislative proposals, to | 24 | | enhance the effectiveness of this Act; | 25 | | (2) provide recommendations to harmonize these | 26 | | wetlands protections with the Illinois Interagency |
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| 1 | | Wetlands Policy Act of 1989; and | 2 | | (3) study the impact of federal rollback of protection | 3 | | for waters beyond wetlands, such as ephemeral streams, in | 4 | | Illinois and provide recommendations, including possible | 5 | | legislative proposals, to protect the citizens of Illinois | 6 | | and waters of the State. | 7 | | Section 45. Appeal of final Department decisions; judicial | 8 | | review. | 9 | | (a) Any permit applicant who has been denied a permit in | 10 | | whole or in part, and any person who participated in the permit | 11 | | proceeding and who is aggrieved by a decision of the | 12 | | Department to grant a permit in whole or in part, may appeal | 13 | | the decision to the Director within 60 calendar days of the | 14 | | date the permit is granted or denied. In all such appeals, the | 15 | | burden of persuasion shall be on the party appealing the | 16 | | Department's decision. | 17 | | (b) A person aggrieved by a final decision made under this | 18 | | Act, including parties that have participated in the permit | 19 | | process if a permit was granted, may seek judicial review of | 20 | | the decision under the Administrative Review Law. | 21 | | Section 50. Investigation; enforcement. | 22 | | (a) In accordance with constitutional limitations, the | 23 | | Department shall have authority to enter at all reasonable | 24 | | times upon any private or public property for the purpose of |
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| 1 | | inspecting and investigating to ascertain compliance and | 2 | | possible violations of this Act, implementing rules, or permit | 3 | | terms or conditions. | 4 | | (b) The civil penalties provided for in this Section may | 5 | | be recovered in a civil action that may be instituted in a | 6 | | court of competent jurisdiction. The State's Attorney of the | 7 | | county in which the alleged violation occurred, or the | 8 | | Attorney General may, at the request of the Department or on | 9 | | the State's Attorney's or Attorney General's own motion, | 10 | | institute a civil action in a court of competent jurisdiction | 11 | | to recover civil penalties and to obtain an injunction to | 12 | | restrain violations of this Act and to compel compliance with | 13 | | this Act. | 14 | | (c) Any person who violates any provision of this Act, any | 15 | | rule adopted under this Act, any permit issued under this Act, | 16 | | or any term or condition of a permit issued under this Act | 17 | | shall be liable for a civil penalty not to exceed $10,000 per | 18 | | day of violation. Any such penalty shall be made payable to the | 19 | | Wetlands Protection Fund and shall be deposited into that Fund | 20 | | as provided in Section 60. In assessing a penalty, courts may | 21 | | consider any matters of record including: | 22 | | (1) the duration and gravity of the violation; | 23 | | (2) the presence or absence of due diligence on the | 24 | | part of the violator in attempting to comply with the Act; | 25 | | (3) any economic benefits accrued by the violator | 26 | | through the violation; |
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| 1 | | (4) the likely deterrence effect of the penalty; and | 2 | | (5) any history on the part of the violator of past | 3 | | violations of this Act. | 4 | | (d) Violations of this Act, rules adopted under this Act, | 5 | | or permits issued under this Act shall not be deemed criminal | 6 | | offenses. | 7 | | (e) All final orders imposing civil penalties under this | 8 | | Section shall prescribe the deadline for payment. If such a | 9 | | penalty is not paid within the time prescribed, interest on | 10 | | the penalty shall be charged at the rate set forth in | 11 | | subsection (a) of Section 1003 of the Illinois Income Tax Act | 12 | | unless the deadline for payment is stayed by a court pending | 13 | | appeal. | 14 | | (f) The Department may terminate a permit if the permittee | 15 | | violated the terms or conditions of the permit, obtained the | 16 | | permit by misrepresentation, or failed to disclose relevant | 17 | | facts. | 18 | | (g) The Attorney General or State's Attorney of the county | 19 | | where the affected wetland is located, may, upon his or her own | 20 | | motion or upon request of the Department, institute a civil | 21 | | action in circuit court for an injunction or other appropriate | 22 | | legal action to restrain a violation of this Act. In the | 23 | | proceeding, the court shall determine whether a violation of | 24 | | this Act has been committed or is likely to occur, and shall | 25 | | enter any order it considers necessary to remove the effects | 26 | | of the violation and to prevent the violation from occurring, |
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| 1 | | continuing or being renewed in the future. An order may | 2 | | include a requirement that the violator restore the affected | 3 | | wetland area, including a provision that, if the violator does | 4 | | not comply by restoring the wetland within a reasonable time, | 5 | | the Department may restore the wetland to its condition prior | 6 | | to the violation and the violator shall be liable to the | 7 | | Department for the cost of the restoration. However, the | 8 | | Department retains the right to act to remedy emergency | 9 | | situations, such as threats to public safety, and the violator | 10 | | shall be liable to the Department for the cost of the | 11 | | restoration. | 12 | | (h) Any person, other than the Attorney General or the | 13 | | State's Attorney, may file a complaint with the Illinois | 14 | | Pollution Control Board against any person allegedly violating | 15 | | this Act, any rule adopted under this Act, any permit issued | 16 | | under this Act, or any term or condition of a permit issued | 17 | | under this Act, or any relevant Board order. The Board shall | 18 | | have authority to conduct proceedings upon complaints charging | 19 | | such violations of this Act. | 20 | | (i) Any penalty assessed under this Act, including costs | 21 | | of wetland restoration and any restoration requirement, shall | 22 | | be recorded by the clerk of the court as a lien against the | 23 | | property and shall not be removed until the penalty is paid or | 24 | | the restoration is completed. | 25 | | (j) All costs, fees, and expenses in connection with an | 26 | | enforcement or restoration action shall be assessed as damages |
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| 1 | | against the violator. | 2 | | (k) Enforcement actions under this Section may be | 3 | | concurrent or separate. | 4 | | Section 55. County and District authority. | 5 | | (a) Nothing in this Act preempts or denies the right of any | 6 | | governmental body with a stormwater management program under | 7 | | Section 5-1062 of the Counties Code or a district with a | 8 | | stormwater program under Section 7h of the Metropolitan Water | 9 | | Reclamation District Act from controlling or regulating | 10 | | activities in any wetlands within the jurisdiction of the | 11 | | governmental body. | 12 | | (b) Upon the request of a governmental body with a | 13 | | stormwater management program under Section 5-1062 of the | 14 | | Counties Code or under Section 7h of the Metropolitan Water | 15 | | Reclamation District Act, the Director shall, within 30 | 16 | | calendar days of receiving the written request or, in the case | 17 | | of subsection (c), within 30 calendar days after the effective | 18 | | date of this Act, provide a letter of recognition delegating | 19 | | permitting authority under this Act to the county or district | 20 | | stormwater program. Subject to subsection (c), the letter of | 21 | | recognition shall be provided if the governmental body's | 22 | | stormwater management program: | 23 | | (1) provides wetlands protections that are consistent | 24 | | with the scope and intent of this Act and that are at least | 25 | | as stringent as those in this Act; |
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| 1 | | (2) has an administration and qualified staff to | 2 | | implement the governmental body's stormwater management | 3 | | program; and | 4 | | (3) is implementing and enforcing its stormwater | 5 | | management program. | 6 | | (c) Activities within or affecting wetlands that occur | 7 | | within the jurisdiction of a governmental body with a | 8 | | stormwater management program under Section 5-1062 of the | 9 | | Counties Code or under Section 7h of the Metropolitan Water | 10 | | Reclamation District Act and that meet the requirements of | 11 | | paragraphs (1), (2), and (3) of subsection (b) of this Section | 12 | | are deemed to be in compliance with the requirements of this | 13 | | Act, but must meet those county or district stormwater | 14 | | management requirements, at a minimum. This also applies | 15 | | during the period that the Department is considering a | 16 | | county's request under subsection (b), but the requirements of | 17 | | this Act do apply until the county has requested recognition | 18 | | under subsection (b). Lake, Cook, Kane, McHenry, and DuPage | 19 | | Counties and the Metropolitan Water Reclamation District of | 20 | | Greater Chicago are deemed to have requested recognition as of | 21 | | the effective date of this Act, and their programs are deemed | 22 | | to be sufficient to meet the requirements of paragraph (b) of | 23 | | this Section. | 24 | | (d) The Director may rescind recognition status, or place | 25 | | conditions on recognition status, after notification, a public | 26 | | hearing, and a reasonable opportunity for the county or |
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| 1 | | district to cure the defect, if the defect with regard to | 2 | | subsection (b) is not resolved. However, notwithstanding any | 3 | | other provision of this Section, a county or district | 4 | | delegation will not be revoked or modified if the local | 5 | | program remains at least as stringent as it was on the | 6 | | effective date of this Act. | 7 | | (e) A governmental body with a stormwater management | 8 | | program under Section 5-1062 of the Counties Code or under | 9 | | Section 7h of the Metropolitan Water Reclamation District Act | 10 | | that has obtained recognition by the Director under this | 11 | | Section shall submit an annual report to the Director. | 12 | | (f) Nothing in this Act shall be construed as a limitation | 13 | | or preemption of any home rule power. | 14 | | (g) The Department may provide technical assistance and | 15 | | grant funding under Section 60 to governmental bodies with | 16 | | approved programs under this Section. | 17 | | Section 60. Wetlands Protection Fund. | 18 | | (a) The Wetlands Protection Fund shall be established as a | 19 | | special fund in the State treasury, to be managed by the | 20 | | Department, separate and distinct from the General Revenue | 21 | | Fund. Any interest earned by the Wetlands Protection Fund | 22 | | shall be credited to the Fund. The purpose of the Wetlands | 23 | | Protection Fund is to further wetlands and small streams | 24 | | protection and management. Its purpose is to supplement, not | 25 | | supplant, existing Department resources. The Wetlands |
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| 1 | | Protection Fund may not be used to pay for compensatory | 2 | | mitigation obligations under this Act. | 3 | | (b) Pursuant to Section 50, all penalties collected by the | 4 | | Department under this Act shall be deposited into the Wetlands | 5 | | Protection Fund. | 6 | | (c) The Illinois General Assembly may appropriate | 7 | | additional moneys to the Wetlands Protection Fund to implement | 8 | | this Act. | 9 | | (d) The Department shall use the moneys in the Wetlands | 10 | | Protection Fund to further wetlands and small streams | 11 | | protection and management. Eligible uses of moneys in the Fund | 12 | | include: | 13 | | (1) providing technical assistance and grant funding | 14 | | to counties or districts with approved programs under | 15 | | Section 55 to restore, preserve, enhance, protect, or | 16 | | maintain wetlands, streams, and upland buffers, | 17 | | particularly Class I areas or wetlands, waters, and | 18 | | buffers that provide floodwater storage and flood risk | 19 | | reduction; | 20 | | (2) supplementing other State, local, or private | 21 | | funding for non-compensatory wetlands and small streams | 22 | | restoration, enhancement, preservation and maintenance; | 23 | | (3) providing matching funds for wetland and stream | 24 | | inventories, mapping, watershed planning and wetland | 25 | | program development grants; and | 26 | | (4) covering staffing and administrative costs for the |
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| 1 | | Department to implement this Act. | 2 | | Section 65. Review fee. All inquiries to determine whether | 3 | | or not the proposed activity requires permit authorization by | 4 | | the Department under this Act will be reviewed by the | 5 | | Department free of charge. A permit review fee that is to be | 6 | | set by the Department by rule is required for all permit | 7 | | applications under this Act. The Department shall establish a | 8 | | graduated review fee payment schedule depending on the | 9 | | intensity of required review and the size of the individual | 10 | | project. Accordingly, the highest review fees will be charged | 11 | | for individual permits to authorize major projects. The | 12 | | Department may, by rule, impose a reasonable fee for wetlands | 13 | | delineation and classification. | 14 | | Section 90. The State Finance Act is amended by adding | 15 | | Section 5.1015 as follows: | 16 | | (30 ILCS 105/5.1015 new) | 17 | | Sec. 5.1015. The Wetlands Protection Fund. | 18 | | Section 97. Severability. The provisions of this Act are | 19 | | severable under Section 1.31 of the Statute on Statutes.". |
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