State of Illinois
92nd General Assembly
Legislation

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[ House Amendment 001 ]


92_HB6013

 
                                              LRB9215300LBprA

 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.  Findings.   Wetlands   of  this  State  are
 7    indispensable and fragile resources. In their natural  state,
 8    wetlands reduce pollution and nutrients from a broad range of
 9    sources,  store  and  convey  flood  waters,  reduce erosion,
10    provide waterfowl nesting and  feeding  areas,  provide  fish
11    habitats  and  habitats  for  rare  and  endangered plant and
12    animal species, provide bird watching and outdoor  recreation
13    opportunities,  and  provide  education  and scientific study
14    opportunities. Wetlands play critical roles in water resource
15    protection and watershed management.
16        More than 7 million acres of  these  important  resources
17    have been destroyed by filling, draining, dredging, and other
18    activities in this State. In addition, development located in
19    altered  wetlands  is  often  subject  to  problems  such  as
20    flooding,  erosion,  and  poor  soil  condition.  Filling  or
21    draining  wetlands  in  one area can cause increased flooding
22    and erosion in other areas.
23        It is, therefore, the policy of this State to ensure that
24    no further loss of wetland functions and acreage occur and to
25    ensure that activities in wetlands will not increase hazards.
26    Further, it is the policy of this State to reduce duplication
27    and ensure coordination in wetland programs and to  encourage
28    the  integration  of  wetland protection and restoration into
29    local comprehensive land management and watershed  management
30    programs   including  floodplain  and  stormwater,  pollution
31    control, source water, and  other  programs.  Protection  and
 
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 1    restoration   of   wetland   resources   shall   be  a  joint
 2    responsibility of the State, local units of  government,  the
 3    federal government, and private citizens.

 4        Section 10.  Definitions. The following definitions shall
 5    apply throughout this Act:
 6        "Agency"  means  the  Illinois  Environmental  Protection
 7    Agency.
 8        "County  stormwater  management planning committee" means
 9    any  stormwater  management  planning  committee  established
10    under Section 5-1062  of  the  Counties  Code,  as  currently
11    enacted or later amended.
12        "County  wetlands  protection  body"  means  a  county or
13    county stormwater management planning committee that has been
14    authorized to issue within its jurisdiction all or a  portion
15    of the wetland permits created by this Act.
16        "Department"  means  the  Illinois  Department of Natural
17    Resources.
18        "Person" means  any  individual,  group  of  individuals,
19    association,  firm,  partnership, corporation, trust, estate,
20    organization,  or  legal  entity  of  any   kind,   including
21    governmental corporations.
22        "Regulated  activity" means any activity conducted within
23    a wetland or  a  regulated  buffer  area  that  may  decrease
24    wetland  functions,  including  discharge  of  fill material,
25    excavating, draining, impounding, and dredging.
26        "State regulated activity" means any  regulated  activity
27    that  is  not  exempted  from  regulation  under  this Act by
28    Section 70 of this Act.
29        "Wetland" means  those  areas  that  are  permanently  or
30    seasonally  inundated or saturated by surface or ground water
31    at a frequency and duration sufficient to support,  and  that
32    under  normal  circumstances  do  support,  a  prevalence  of
33    vegetation  typically  adapted  for  life  in  saturated soil
 
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 1    conditions. Wetlands generally include swamps, marshes, bogs,
 2    fens, and similar areas.

 3        Section 15.  Implementation.
 4        (a)  The Department shall implement  a  program  for  the
 5    protection and restoration of wetlands in Illinois consistent
 6    with  the  goals,  procedures, and criteria set forth in this
 7    Act. This program shall be  carried  out  cooperatively  with
 8    other  state  agencies,  federal agencies, local governments,
 9    land trusts, landowners,  and  other  interested  groups  and
10    organizations.  In  carrying  out this program the Department
11    may:
12             (1)  Adopt wetland maps as set forth in Section 20.
13             (2)  Adopt  rules  necessary   to   administer   the
14        requirements  of  this  Act. The Department may implement
15        this Act through the use of emergency rules in accordance
16        with the provisions  of  Section  5-45  of  the  Illinois
17        Administrative   Procedure   Act.  For  purposes  of  the
18        Illinois Administrative Procedure Act,  the  adoption  of
19        rules  to implement this Act shall be deemed an emergency
20        and  necessary  for  the  public  interest,  safety,  and
21        welfare.
22             (3)  Provide technical assistance  and  training  to
23        help  local  governments  develop  wetland protection and
24        restoration  programs  and  to  help  local   governments
25        integrate   wetland   protection   and  restoration  into
26        comprehensive  land  planning  and   management   efforts
27        including floodplain and stormwater management, pollution
28        control, source water planning, greenway, open space, and
29        other efforts.
30             (4)  Encourage  and  provide guidance with regard to
31        the restoration of wetlands.
32             (5)  Adopt joint permit processing  procedures  with
33        federal,   other   state,   and   local   agencies   with
 
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 1        jurisdiction  over  wetlands  and  take other measures to
 2        improve coordination and reduce duplication  between  the
 3        regulatory  agency  and  other  state  agencies,  federal
 4        agencies, and local governments.
 5        (b)  The  Agency  shall adopt water quality standards for
 6    wetlands by December 31, 2003.

 7        Section 20.  Mapping. The Department shall adopt  wetland
 8    maps for Illinois. In this effort, the Department may utilize
 9    on an interim or longer-term basis National Wetland Inventory
10    Maps  for  all  or a portion of the State. The Department may
11    also use maps prepared by other groups  or  organizations  or
12    undertake  independent  mapping  with federal agencies, other
13    state  agencies,  local  governments,  or  other  groups   or
14    organizations.  The  Department  may separately adopt wetland
15    maps for various regions of the  State.  The  Department  may
16    issue  permits  according  to  this  Act  before  its mapping
17    program is complete. In that case, the Department  shall  use
18    the   best   available  information  when  evaluating  permit
19    applications. The Department shall use the Corps of Engineers
20    1987 Manual for the Delineation of Jurisdictional Wetlands.
21        The Department shall,  upon  the  written  request  of  a
22    landowner  whose land may be included in a regulated wetland,
23    delineate more precisely the wetland boundary  line  applying
24    delineation  criteria. The Department may require information
25    from the landowner or other agencies or organizations to  aid
26    in  the  delineation  effort. The Department may require that
27    the  landowner  pay  a  reasonable  fee  for  the   requested
28    delineation.  The  validity  of  the delineation shall expire
29    after 2 years.

30        Section 25.  Permits. Unless exempted under  Section  70,
31    no  person  may  conduct or cause to be conducted a regulated
32    activity within or affecting a wetland without a permit  from
 
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 1    the  Department.  Any person proposing to conduct or cause to
 2    be  conducted  a  state  regulated  activity  shall  file  an
 3    application for a permit with the Department. The  Department
 4    shall  determine the number of copies of the application that
 5    the applicant shall submit, and shall forward one copy to the
 6    Agency. The applicant shall provide within 10 days of  filing
 7    a   permit   application  a  written  notice  of  the  permit
 8    application to the owners of each tract of property  adjacent
 9    to the property containing the wetland that is the subject of
10    the  permit.  The  applicant  shall also post a notice of the
11    proposed  permit,  within  10  days  of  the  filing  of  the
12    application, in a local newspaper of general circulation.
13        A  permit   applicant   shall   include   the   following
14    information   in   the  application,  unless  the  Department
15    determines that a portion of this information is unnecessary:
16             (1)  A map of the area that will be affected by  the
17        activity,  including wetland and water boundaries for the
18        areas affected and the existing uses and structures.
19             (2)  A  description  of   the   proposed   activity,
20        including its purpose, the location and dimensions of any
21        structures, grading or fills, drainage, roads, sewers and
22        water  supply,  parking  lots,  storm  water  facilities,
23        discharge of pollutants, and onsite waste disposal.
24             (3)  A  description  of  any  public  benefit  to be
25        derived from the proposed project.
26             (4)  A description of the entire parcel owned by the
27        applicant,  including  a  topographical  survey  of   the
28        property  and a sketch map indicating the location of the
29        wetland on the parcel.
30             (5)  A description of any  natural  hazards  at  the
31        site, including flood, erosion, and soil bearing capacity
32        hazards,  and  an  indication  of  how the applicant will
33        avoid increasing hazards on other lands and avoid  hazard
34        losses associated with the proposed activity.
 
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 1             (6)  An   explanation   of  other  alternatives  the
 2        applicant  has  considered,  why  the  proposed  activity
 3        cannot  be  located  at  other  sites,  and   why   other
 4        alternatives  cannot  be  used  to  fulfill  the  desired
 5        purpose of the proposed activity.
 6             (7)  The  names and addresses of adjacent landowners
 7        as determined by the current tax assessment roles  and  a
 8        description  of adjacent uses and their distance from the
 9        proposed activity.
10             (8)  Proposed measures to reduce the impact  of  the
11        proposed activity on wetland functions and values and to
12        compensate for impacts.
13        The  Department  may require additional information where
14    that information is needed to determine the compliance of the
15    proposed activity with the criteria for issuance of a permit.
16    Where  informational  deficiencies  are   apparent   in   the
17    application, the Department shall advise the applicant of the
18    need for additional information within 30 days of the receipt
19    of the application.
20        Upon  receipt  of  a  permit  application, the Department
21    shall notify, within 10 days, other state, federal, and local
22    government entities  that  may  have  jurisdiction  over  the
23    proposed  activity,  as well as any other persons or entities
24    that have requested to receive notification of wetland permit
25    applications from the Department. All people and entities  so
26    notified shall have 30 days from the date of the Department's
27    notification to provide comments to the Department.
28        The   Department   shall   also  hold  a  public  hearing
29    concerning the permit application if  the  proposed  activity
30    may  have significant impact upon wetland resources or if the
31    Agency  determines  that  a  public  hearing   is   otherwise
32    appropriate.
33        The  Department shall issue, conditionally issue, or deny
34    a permit within 120 days of receipt of a  permit  application
 
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 1    unless  the  permit  applicant  has  failed  to supply needed
 2    information or additional information gathering is needed  to
 3    determine  the  compliance  of  the  permit  with  regulatory
 4    criteria.
 5        In   granting   a   permit,  the  Department  may  impose
 6    conditions that must be carried out to meet the goals of this
 7    Act and the permit criteria. The Department  may  suspend  or
 8    revoke  a  permit  if  it  finds  that  the applicant has not
 9    complied with the conditions or limitations set forth in  the
10    permit.  The  Department  may require a bond in an amount and
11    with surety and conditions sufficient  to  secure  compliance
12    with the conditions and limitations set forth in the permit.

13        Section 30.  Permit fees. A permit applicant shall submit
14    a fee to the Department when submitting an application to the
15    Department  for  a  regulated  activity. The Department shall
16    deny  any  permit  application  that  does  not  include  the
17    appropriate fee.
18        The amount of the fee shall be $1,000 for each  acre  pro
19    rata  that will be affected by a regulated activity. However,
20    no fee shall be due from any entity listed in subsection  (e)
21    of  Section  12.2  of  the  Environmental  Protection Act, as
22    currently enacted or later amended.
23        All fees collected by the Department under  this  Section
24    shall be deposited into the Wetlands Protection Fund.

25        Section 35. Criteria for issuance of permits
26        (a)  The Department shall issue a permit if it finds that
27    the proposed activity is in the public interest.
28        (b)  In determining whether a proposed activity is in the
29    public  interest,  the Department shall consider the goals of
30    this Act and any more specific criteria for  permit  issuance
31    adopted by the Department. The Department shall also consider
32    the  need  for  the  proposed  activity and the impact on the
 
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 1    landowner of permit denial. To find that a proposed  activity
 2    is in the public interest, the Department must find that:
 3             (1)  There  will be no net loss of wetland function.
 4        At a minimum, this shall require findings that there will
 5        be no net loss of:
 6                  (a)  wetland  habitat  for  breeding,  nesting,
 7             foraging, resting, or  protection  of  any  species,
 8             including those species on the federal or State list
 9             of threatened, endangered, or rare species;
10                  (b)  stormwater    and   floodwater   retention
11             capacity;
12                  (c)  groundwater recharge capacity;
13                  (d)  ability to improve water  quality  through
14             sedimentation,  filtration, biological treatment, or
15             other functions; and
16                  (e)  recreational opportunities such as hunting
17             or fishing.
18             (2)  There will be no net loss of wetland acreage.
19             (3)  The proposed activity will not cause  flooding,
20        erosion,  or  other  hazards  that  will  threaten  other
21        landowners or the public.
22             (4)  An  adequate  upland buffer will be provided to
23        protect   remaining   wetland   acres   from    sediment,
24        pollutants,  and  other  threats.  This buffer must be at
25        least 50  feet,  except  as  otherwise  provided  in  the
26        criteria  adopted by the Department. The buffer width for
27        a development site may be varied to a minimum of  1/2  of
28        the   required  buffer  width  provided  that  the  total
29        required buffer area is achieved.
30             (5)  The Agency  has  certified  that  the  proposed
31        activity  will  not cause or contribute to a violation of
32        any State water quality standards.
33             (6)  The  proposed  activity  will   not   otherwise
34        threaten  health  and  safety,  cause  nuisances,  impair
 
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 1        public  rights to the enjoyment and use of public waters,
 2        or threaten a rare or endangered plant  or  animal  or  a
 3        unique ecosystem.
 4             (7)  The  applicant  has  shown  that  there  are no
 5        practicable alternatives to the  proposed  activity  that
 6        would result in less environmental harm.
 7             (8)  Any adverse impacts will be minimized.
 8        (c)  In evaluating the impact of the proposed permit, the
 9    Department  shall  consider the cumulative effect of existing
10    and reasonably anticipated  future  activities  upon  wetland
11    resources. The Department shall consider any irreversible and
12    irretrievable  commitment  of resources that will result from
13    the  proposed  activity,   and   the   relationship   between
14    short-term  uses  of  the environment and the maintenance and
15    enhancement of long-term productivity. The  Department  shall
16    also  consider any proposed impact reduction and compensation
17    measures only after determining that there are no practicable
18    alternatives to the proposed activity and that  the  measures
19    are consistent with this Act.

20        Section 40.  General permits.
21        (a)  In  carrying out its functions relating to regulated
22    activities, the Department may, after notice and  opportunity
23    for  public  hearing,  issue  a  general  permit  on a State,
24    county, or regional  basis  for  any  category  of  regulated
25    activity  if the Department determines that the activities in
26    that category are similar in nature, will cause only  minimal
27    adverse  environmental effects when performed separately, and
28    will have only  minimal  cumulative  adverse  effect  on  the
29    environment.  Best management practices may be prescribed for
30    activities regulated by a general permit. Any general  permit
31    issued under this subsection shall:
32             (1)  be  based  on  the guidelines set forth in this
33        Act; and
 
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 1             (2)  set forth the requirements and  standards  that
 2        will  apply  to  the  activity  authorized by the general
 3        permit.
 4        (b)  No general permit issued under this subsection shall
 5    be valid for a period of more than 5 years after the date  of
 6    its issuance.
 7        (c)  A  general  permit may be revoked or modified by the
 8    Department if, after  opportunity  for  public  hearing,  the
 9    Department  determines  that the activities authorized by the
10    general permit have an adverse impact on the  environment  or
11    the   activities   are   more   appropriately  authorized  by
12    individual permits.

13        Section 50.  County wetland protection body regulation of
14    wetlands.
15        (a)  Counties and county stormwater  management  planning
16    committees   with   wetland  regulations  may  apply  to  the
17    Department for permission to issue all or a  portion  of  the
18    wetland  permits  in  lieu of the Department.  The Department
19    shall authorize a  county  or  county  stormwater  management
20    planning  committee  to  issue  all  or  a portion of wetland
21    permits for wetlands within the county or  county  stormwater
22    management   planning   committee's   jurisdiction   if   the
23    Department  finds:  (i)  that  the  overall  wetland function
24    protection  provided  by  the  county  or  county  stormwater
25    management planning committee regulations equals  or  exceeds
26    the  protection provided by the Department; and (ii) that the
27    county or county stormwater management planning committee has
28    adequate administration and enforcement mechanisms.  To  make
29    this  finding,  the  Department  must find that the county or
30    county stormwater  management  planning  committee's  program
31    incorporates   reasonable   notice,   comment,   and  hearing
32    procedures. In making its decision regarding  an  application
33    made  by  a  county  or county stormwater management planning
 
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 1    committee, the Department shall give appropriate deference to
 2    counties and county stormwater management planning committees
 3    with substantial experience in managing programs that protect
 4    wetland functions.
 5        (b)  County wetland  protection  bodies  issuing  permits
 6    under  this  Section shall provide copies of those permits to
 7    the Department. The Department shall be the permitting agency
 8    for applications for State regulated activities  that  affect
 9    wetlands  located in more than one county or activities where
10    the county wetland  protection  body  is  itself  the  permit
11    applicant.
12        (c)  County   wetland  protection  bodies  may  charge  a
13    reasonable fee to permit applicants to raise funds for use in
14    administering and enforcing  the  county  wetland  protection
15    body's wetland regulations.
16        (d)  The  Department  may  withdraw  approval of a county
17    wetland protection body's application for issuance of permits
18    in lieu of the Department for any county  wetland  protection
19    body program that fails to administer and enforce regulations
20    equaling  or  exceeding  the  overall  protection  of wetland
21    functions of the program of the Department.

22        Section  60.  Creation,  restoration,  and  compensation;
23    mitigation banks.  The  Department  shall  encourage  private
24    landowners,  local  governments,  other  State agencies, land
25    trusts, and others to restore wetlands in  order  to  achieve
26    the  long-term  goal  of a net gain in wetland resources. The
27    Department shall provide technical  assistance  to  agencies,
28    organizations,  and  individuals in planning and carrying out
29    restoration projects. The Department shall identify  possible
30    restoration  sites  in  cooperation with other organizations.
31    The  Department  shall  adopt  guidelines   and   educational
32    materials   for   restoration  projects  and  may  carry  out
33    restoration research and demonstration projects.
 
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 1        When a permit  applicant  proposes  wetland  restoration,
 2    creation,  or  enhancement  to  compensate  for  damage  to a
 3    wetland, the Department shall consider the risk of failure of
 4    the  impact  reduction  and  compensation  measures  and  may
 5    require  that  permit  applicant  to  implement  compensation
 6    measures prior to undertaking the proposed activity.
 7        The Department may not accept as an impact  reduction  or
 8    compensation measure any measure that creates or restores, on
 9    a  pro rata basis, less than 1.5 acres of wetland for every 1
10    acre  of  wetland  disturbed  by  a  regulated  activity.  In
11    deciding whether  the  compensation  ratio  proposed  by  the
12    project  applicant  is  sufficient  to provide no net loss of
13    wetland functions and acreage, the Department shall consider:
14             (1)  the sensitivity of the wetland type;
15             (2)  the success of other efforts  to  restore  this
16        wetland type;
17             (3)  the  length  of  time  it  will  take  before a
18        compensation wetland will become fully functioning;
19             (4)  the  degree  of   difficulty   that   will   be
20        encountered in creating or restoring wetland hydrology in
21        this setting;
22             (5)  the adequacy of the overall project design;
23             (6)  the  threats, if any, posed to the compensation
24        wetland by pollution or other activities;
25             (7)  the  adequacy  of   proposed   protection   and
26        management   measures   for   the  proposed  compensation
27        wetland;
28             (8)  the extent to which monitoring  and  mid-course
29        correction capabilities are proposed;
30             (9)  the  extent  to which bonds or other assurances
31        are provided to insure long-term success; and
32             (10)  any other factors the Department determines to
33        be relevant.
34        The  Department   may   use   the   compensation   ratios
 
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 1    established under the Illinois Interagency Wetland Policy Act
 2    of  1989  and  its implementing regulations and guidelines to
 3    establish minimum compensation ratios under this Act.  Ratios
 4    shall be higher for compensation activities performed outside
 5    the immediate sub-watershed where the regulated activity will
 6    occur.   Compensatory  activities shall normally occur in the
 7    same county as that of the wetland  to  be  affected  by  the
 8    permitted activity.
 9        The  Department  may also authorize permit applicants, in
10    appropriate circumstances, to compensate for loss of  wetland
11    functions   by   utilizing   wetland  mitigation  banks.  The
12    Department may authorize a permit applicant to use a bank  if
13    there  is  no  practicable  onsite alternatives and using the
14    bank will provide a net  benefit  in  wetland  functions  and
15    acreage. The Department may permit some combination of onsite
16    impact   reduction,   compensation   measures,   and  offsite
17    mitigation banks.

18        Section 70.  Exemptions.
19        (a)  Except  as  provided  in  subsection  (b)  of   this
20    Section,  the  following  activities are not prohibited by or
21    otherwise subject to regulation under this Act:
22             (1)  normal  farming,  silviculture,   or   ranching
23        activities  such  as plowing, seeding, cultivating, minor
24        drainage, harvesting for the production of  food,  fiber,
25        and   forest   products,   and   upland  soil  and  water
26        conservation practices;
27             (2)  maintenance, including emergency reconstruction
28        of  recently  damaged  parts,  of  currently  serviceable
29        structures such as dikes, dams, levees,  groins,  riprap,
30        breakwaters,  causeways,  bridge abutments or approaches,
31        and transportation structures;
32             (3)  construction or maintenance of  farm  or  stock
33        ponds  or irrigation ditches, or the maintenance, but not
 
                            -14-              LRB9215300LBprA
 1        construction of drainage ditches;
 2             (4)  construction of temporary sedimentation  basins
 3        on   a  construction  site  that  does  not  include  any
 4        regulated activities within or affecting a wetland; and
 5             (5)   construction or  maintenance  of  farm  roads,
 6        forest  roads,  or  temporary  roads  for  moving  mining
 7        equipment, where the roads are constructed and maintained
 8        in  accordance  with  best management practices to assure
 9        that flow  and  circulation  patterns  and  chemical  and
10        biological  characteristics of wetlands are not impaired,
11        that the reach of wetlands is not reduced, and  that  any
12        adverse   effect  on  the  aquatic  environment  will  be
13        otherwise minimized.
14        (b)  Any  regulated  activity  having  as   its   purpose
15    bringing  a wetland into a use to which it was not previously
16    subjected, where the flow or circulation  of  waters  may  be
17    impaired,  or  where  the  reach  of  the  wetlands  shall be
18    reduced, shall be required to have a permit.
19        (c)  Any regulated activity for which a permit  has  been
20    obtained  pursuant  to  Section 404 of the Clean Water Act or
21    pursuant to the Interagency Wetland Policy Act of 1989 is not
22    prohibited by or otherwise subject to regulation  under  this
23    Act.

24        Section 80.  Administrative appeals.
25        (a)  Any permit applicant who has been denied a permit in
26    whole  or  in  part,  and  any person who participated in the
27    permit proceeding and who is aggrieved by a decision  of  the
28    Department  to grant a permit in whole or in part, may appeal
29    the decision to the Director of the Department within 30 days
30    of the permit grant or denial.
31        (b)  Any county or county stormwater management  planning
32    committee  that  has  had  an application filed under Section
33    50(a) of this Act denied in whole or in part or that has been
 
                            -15-              LRB9215300LBprA
 1    subject to a withdrawal of approval under  Section  50(d)  of
 2    this  Act may appeal the denial or withdrawal to the Director
 3    of the Department within 30 days of the denial or withdrawal.

 4        Section  85.  Judicial  appeals.  A  person,  county,  or
 5    county stormwater management planning committee aggrieved  by
 6    a decision made pursuant to this Act, including a decision of
 7    the  Director  or  the  Department, may, after exhausting the
 8    available administrative appeals, seek judicial review of the
 9    decision pursuant to the Administrative Review Act.

10        Section 90.  Penalties; enforcement.
11        (a)  A person who directly or  through  any  employee  or
12    agent  knowingly  violates  this  Act or any rule established
13    under  this  Act  is  guilty  of  a  Class   A   misdemeanor.
14    Conservation  police  officers, other employees designated by
15    the Director of the Department, sheriffs,  and  other  police
16    officers  shall  enforce  this  Act and the rules promulgated
17    under this  Act  and  are  empowered  to  arrest  any  person
18    detected in violation of this Act. Each violation of this Act
19    shall  be  a  separate offense, and in the case of continuing
20    violation, each day's continuance shall be  deemed  to  be  a
21    separate and distinct offense.
22        (b)  A   person  who  violates  this  Act  or  the  rules
23    promulgated under this Act or causes a violation  by  his  or
24    her  employee  or  agent, shall be liable for a civil penalty
25    not to exceed $50,000  for  the  original  violation  and  an
26    additional  civil  penalty not to exceed $10,000 for each day
27    during which any loss of  wetland  functions  caused  by  the
28    violation  continues.  The  penalty  shall be recovered in an
29    action  brought  by  the  Attorney  General  or  the  State's
30    Attorney in the circuit court. In determining the appropriate
31    civil penalty to be imposed, the circuit court  may  consider
32    any  matters  of  record concerning mitigating or aggravating
 
                            -16-              LRB9215300LBprA
 1    factors  for  determining  the  penalty,  including  but  not
 2    limited to the following:
 3             (1)  the duration and gravity of the violation;
 4             (2)  the presence or absence of due diligence on the
 5        part of the violator in attempting  to  comply  with  the
 6        requirements  of this Act and the rules promulgated under
 7        this Act or to secure relief as provided by this Act;
 8             (3)  any economic benefits received by the  violator
 9        from the violation of this Act;
10             (4)  the  amount of monetary penalty that will serve
11        to deter  further  violations  by  the  violator  and  to
12        otherwise aid in enhancing voluntary compliance with this
13        Act  by  the violator and other persons similarly subject
14        to this Act; and
15             (5)  the number, proximity in time, and  gravity  of
16        previously  adjudicated  violations  of  this  Act by the
17        violator.
18        (c)  The Department may terminate a permit if the  holder
19    violates  any  condition  of  the permit, obtains a permit by
20    misrepresentation, or fails to disclose relevant facts.
21        (d)  The Attorney General, or the State's Attorney of the
22    county where the affected wetland is located, may,  upon  his
23    or  her  own  motion  or  upon  request  of  the  Department,
24    institute  a  civil action in circuit court for an injunction
25    or other appropriate legal action to restrain a violation  of
26    this  Act  or  of  any  rule  adopted  under this Act. In the
27    proceeding the court shall determine whether a violation  has
28    been  committed  or  is  likely to occur, and shall enter any
29    order it considers necessary to remove  the  effects  of  the
30    violation  and  to  prevent  the  violation  from  occurring,
31    continuing,  or  being  renewed  in  the future. An order may
32    include a requirement that the violator restore the  affected
33    wetland  area,  including  a  provision that, if the violator
34    does not comply by restoring the wetland within a  reasonable
 
                            -17-              LRB9215300LBprA
 1    time, the Department may restore the wetland to its condition
 2    prior  to  the  violation and the violator shall be liable to
 3    the Department for the cost of restoration.
 4        (e)  Any penalty assessed pursuant to this Act, including
 5    costs   of   wetland   restoration   and   any    restoration
 6    requirements,  shall be recorded by the clerk of the court as
 7    a lien against the land and shall not be  removed  until  the
 8    penalty is paid or the restoration is completed.
 9        (f)  All  costs, fees, and expenses in connection with an
10    enforcement  or  restoration  action  shall  be  assessed  as
11    damages against the violator.
12        (g)  All penalties collected by the Department under this
13    Section shall be deposited into the Wetlands Protection Fund.
14        (h)  Enforcement  actions  under  this  Section  may   be
15    concurrent or separate.

16        Section 100.  Wetland Protection Fund. All fees collected
17    by  the  Department  pursuant  to this Act shall be deposited
18    into the Wetlands Protection Fund, which is hereby created as
19    a special fund in the State  Treasury.  In  addition  to  any
20    moneys  appropriated  from  the  General  Revenue  Fund,  the
21    Illinois  General  Assembly  shall  appropriate moneys in the
22    Wetlands Protection Fund to the Department and the Agency  in
23    amounts deemed necessary to implement this Act.

24        Section  110.  Preemption.  Nothing  in this Act shall be
25    construed as a limitation or preemption of any  statutory  or
26    regulatory   authority   arising   under   the  Environmental
27    Protection Act or Section 5-1062 of the Counties Code.

28        Section 300.  The State Finance Act is amended by  adding
29    Section 5.570 as follows:
30        (30 ILCS 105/5.570 new)
31        Sec. 5.570. The Wetlands Protection Fund.
 
                            -18-              LRB9215300LBprA
 1        Section  999.  Effective date. This Act takes effect upon
 2    becoming law.

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