103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3669

 

Introduced 2/9/2024, by Sen. Laura Ellman

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.1015 new

    Creates the Wetlands and Small Streams Protection Act to restore protections for wetlands and small streams that were formerly protected from pollution and destruction by the Clean Water Act. Provides provisions concerning: exemptions; wetlands delineation, classification, notification, permits and veto; general permits; appeal of final decisions made by the Department of Natural Resources and judicial review; investigation and enforcement; and county authority. Creates the Wetlands and Small Streams Advisory Committee and establishes duties and rules for the Committee. Creates the Wetlands and Small Streams Protection Fund. Provides for permit review fees. Defines terms. Makes conforming changes in the State Finance Act and the Illinois Environmental Protection Act. Effective immediately.


LRB103 36679 MXP 66789 b

 

 

A BILL FOR

 

SB3669LRB103 36679 MXP 66789 b

1    AN ACT concerning transportation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Wetlands and Small Streams Protection Act.
 
6    Section 5. Findings and Intent. The General Assembly
7finds:
8    (1) In 1818, Illinois contained an estimated 8.2 million
9acres of wetlands. Based on the Illinois portion of the
10National Wetlands Inventory, less than 9% of the original
11acres remain.
12    (2) With the significant loss in acreage, a corresponding
13loss in the functional values and benefits that wetlands
14provide has occurred.
15    (3) Illinois is bordered by 880 miles of rivers which are
16critical to navigation, commerce, recreation, and ecosystem
17health at home and downstream to the Gulf of Mexico. The health
18of Illinois rivers is heavily influenced by the health of the
19tributaries and small streams that flow into them.
20    (4) In Illinois, 9,894 total miles of streams provide
21water for surface water intakes, supplying public drinking
22water systems that rely at least in part on intermittent,
23ephemeral, or headwater streams.

 

 

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1    (5) Continued loss of Illinois' wetlands and small streams
2may deprive the People of the State of some or all of the
3benefits that they provide, including:
4        (A) reducing flood damages and protecting vulnerable
5    communities by absorbing, storing, and conveying peak
6    flows from storms;
7        (B) improving water quality by serving as
8    sedimentation and filtering basins and as natural
9    biological treatment areas;
10        (C) providing breeding, nesting, forage, and
11    protective habitat for approximately 40% of the State's
12    threatened and endangered plants and animals, in addition
13    to other forms of fish, wildlife, game, waterfowl, and
14    shorebirds;
15        (D) protecting underground water resources and helping
16    to recharge rivers, streams, and local or regional
17    underground water supplies;
18        (E) serving as recreational areas for hunting,
19    fishing, boating, hiking, bird watching, photography, and
20    other uses;
21        (F) providing open space and aesthetic values,
22    particularly in rapidly developing areas;
23        (G) providing unique educational and research
24    opportunities because of their high diversity of plants
25    and animals, their support for a high incidence of
26    threatened and endangered species, and their function as a

 

 

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1    natural buffer for rivers, lakes, and streams;
2        (H) supplying nutrients in freshwater food cycles and
3    serving as nursery areas and sanctuaries for young fish;
4    and
5        (I) helping to protect shorelines from the forces of
6    water erosion.
7    (6) Our changing climate, with weather patterns becoming
8more extreme and less predictable, heightens the need for some
9or all of the benefits that Illinois' wetlands provide,
10including flood control, coastal resilience, water quality,
11aquifer recharge, habitat, and maintenance of baseflow to
12recharge rivers, streams, and local or regional underground
13water supplies.
14    (7) Illinois historically relied on the Clean Water Act's
15permit program administered by the U.S. Army Corps of
16Engineers and the U.S. Environmental Protection Agency to
17prevent harm to aquatic resources from unauthorized discharges
18of dredge or fill material.
19    (8) After a Supreme Court decision created uncertainty
20about federal protections for some "isolated" wetlands, the
21General Assembly passed the Interagency Wetland Policy Act to
22protect these wetlands from State agency actions and achieve
23no net loss of wetlands.
24    (9) Recently, the Supreme Court's decision in Sackett v.
25EPA rolled back the scope of waters of the United States,
26thereby removing Clean Water Act protections for many waters

 

 

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1of the State, including wetlands, such as bottomland hardwood
2forested wetlands that are separated from the Illinois River
3by levees that provide significant flood control protections.
4    (10) It is important to adopt protections under State law
5to protect Illinois waters from pollution and destruction to
6reinstate protections lost by rolling back the scope of Clean
7Water Act protections.
 
8    Section 10. Definitions.
9    "Advanced Identification sites" or "ADID" means aquatic
10sites that have been determined to provide Biological Values
11by the U.S. Army Corps of Engineers and U.S. Environmental
12Protection Agency Advanced Identification Study in accordance
13with 40 C.F.R. Part 230.80 as of the date of enactment of this
14Act.
15    "Affected property" means any property upon which a
16regulated activity is conducted.
17    "Agency" means the Illinois Environmental Protection
18Agency.
19    "Agricultural land" means land that is currently used for
20normal farming or ranching activities, consistent with Section
21404(f) of the Clean Water Act.
22    "Avoidance" means any action taken in a manner such that a
23regulated activity will not occur, consistent with the
24404(b)(1) Guidelines.
25    "Bog" means a peat-accumulating wetland that has no

 

 

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1significant inflows or outflows and supports acidophilic
2mosses, particularly sphagnum, resulting in highly acidic
3conditions.
4    "Bottomland hardwood" means forested riverine floodplain
5forest in the 100-year flood plain of Illinois rivers and
6streams which are among the most productive and ecologically
7important wetlands in the world, providing wildlife habitat,
8flood control, erosion prevention, carbon sequestration,
9wildlife corridors, and water quality benefits.
10    "Committee" means the Wetlands and Small Streams Advisory
11Committee for purposes of this Act.
12    "Contiguous area" means the portion of a wetland or small
13stream that extends beyond the property boundary of the
14affected property.
15    "Corps of Engineers" or "COE" means the U.S. Army Corps of
16Engineers.
17    "Corps of Engineers Wetlands Delineation Manual" means the
181987 U.S. Army Corps of Engineers, Wetlands Delineation
19Manual, Research Program Technical Report Y-87-1, and any
20applicable Regional Supplements thereto issued prior to May,
212023.
22    "Cypress swamp" means forested, permanent, or
23semi-permanent bodies of water, with species assemblage's
24characteristic of the Gulf of Mexico and Southeastern Coastal
25Plains and including bald cypress, which are found in extreme
26southern Illinois.

 

 

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1    "Department" means the Illinois Department of Natural
2Resources.
3    "Director" means the Director of the Illinois Department
4of Natural Resources.
5    "Fen" means a wetland fed by an alkaline water source such
6as a calcareous spring or seep.
7    "General permit" means a permit issued by the Department,
8including Army Corps of Engineers nationwide permits,
9consistent with Section 40 of this Act that pre-authorizes a
10category of activities that are similar in nature and impact
11on water quality, will have only minimal adverse effects when
12performed separately, will have minimal cumulative impacts on
13water quality provided the permittee complies with all of the
14conditions of the general permit, and will not cause or
15contribute to a violation of State water quality standards.
16    "High-Quality Aquatic Resources (HQAR)" means high quality
17aquatic resources (HQAR) consistent with the guidelines of the
18Chicago District of the U.S. Army Corps of Engineers.
19    "Individual permit" means a permit issued by the
20Department pursuant to Section 30 of this Act after
21case-specific sequenced review (avoidance, minimization,
22mitigation) of the proposed project and certification of
23compliance with State water quality standards.
24    "In Lieu Fee Mitigation" means a payment to the Illinois
25Department of Natural Resources or a Department approved In
26Lieu Fee Program made by an applicant to satisfy a mitigation

 

 

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1requirement for Class III in accordance with this Act and
2implementing regulations.
3    "Maintenance" means work to repair and keep in good
4working order existing structures in wetlands and streams,
5including emergency reconstruction of recently damaged parts
6of currently serviceable structures, including dikes, dams,
7levees, groins, riprap, breakwaters, causeways, and bridge
8abutments or approaches, and transportation structures.
9Maintenance does not include any modification that changes the
10character, scope or size of the original fill design but such
11modifications may be eligible to utilize Nationwide Permit 3,
12Maintenance.
13    "Minimization" means, consistent with federal Section
14404(b)(1) Guidelines and this Act, reducing as much as
15practicable the adverse environmental impact of an unavoidable
16regulated activity.
17    "Mitigation" means, for purposes of this Act, the
18restoration, establishment, enhancement or protection and
19maintenance of wetlands and other aquatic resources for the
20purpose of compensating for unavoidable adverse impacts that
21remain after all appropriate and practicable avoidance and
22minimization have been achieved. Mitigation must be consistent
23with the requirements of this Act. Mitigation may include
24wetlands creation if authorized by the Department in
25situations in which other mitigation is impractical and the
26likelihood of success is high. Wetlands creation is restricted

 

 

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1to areas that are currently non-wetland.
2    "Nationwide permit" means a nationwide permit issued by
3the U.S. Army Corps of Engineers as of the date of enactment of
4this Act.
5    "Panne" means wet interdunal flats located near Lake
6Michigan and includes dune and swale wetlands.
7    "Permit" means a written authorization issued by the
8Department of Natural Resources pursuant to this Act and
9implementing regulations. Permit includes "general permits" as
10well as "individual permits."
11    "Person" means an individual, partnership, co-partnership,
12firm, company, limited liability company, corporation,
13association, joint stock company, trust, estate, political
14subdivision, state or federal agency or other legal entity, or
15its legal representative, employee, agent or assigns.
16    "Predischarge Notification" means notice that a permittee
17must provide the Department before undertaking an activity
18authorized by a general permit.
19    "Prior converted cropland" means a converted wetland where
20the conversion occurred prior to December 23, 1985, an
21agricultural commodity has been produced at least once before
22December 23, 1985, remains available for agricultural
23commodity production, and as of December 23, 1985, the
24converted wetland did not support woody vegetation and met the
25following hydrologic criteria for a farmed wetland: (i)
26inundation was less than 15 consecutive days during the

 

 

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1growing season or 10% of the growing season, whichever is
2less, in most years (50% chance or more); and (ii) if a
3pothole, ponding was less than 7 consecutive days during the
4growing season in most years (50% chance or more) and
5saturation was less than 14 consecutive days during the
6growing season most years (50% chance or more).
7    "Regulated activity" means the discharge of dredged or
8fill material from a point source into a wetland or small
9stream subject to this Act.
10    "Small stream" means first-order streams, including
11intermittent, ephemeral, and headwater streams and
12tributaries. "Small stream" does not include Waters of the
13United States.
14    "Threatened or endangered species" means those species
15that have been designated as threatened or endangered pursuant
16to the Illinois Endangered Species Protection Act and those
17species that have been listed as threatened or endangered
18pursuant to federal law under the Endangered Species Act.
19    "Upland" means non-wetland, dry land.
20    "Wetlands" means those areas that are inundated or
21saturated by surface or ground water at a frequency or
22duration sufficient to support, and that under normal
23circumstances do support, a prevalence of vegetation typically
24adapted for life in saturated soil conditions.
25    "Wetland mitigation bank" means a site where wetlands have
26been restored, created, enhanced, or, in exceptional

 

 

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1circumstances, preserved expressly for the purpose of
2providing mitigation for impacts to wetlands and that has been
3approved by the Department or the Corps of Engineers in
4accordance with the process established in 33 C.F.R. 332.8 and
540 C.F.R. 230.98 and Department regulations implementing this
6Act.
 
7    Section 15. Exemptions.
8    (a) Consistent with Section 404(f) of the Clean Water Act,
9as long as they do not have as their purpose bringing a wetland
10or stream into a use to which it was not previously subject and
11do not entail discharge of toxic pollutants, the following are
12not prohibited by or otherwise subject to regulation under
13this Act:
14        (1) Normal farming, silviculture, and ranching
15    activities, including plowing, seeding, cultivating, minor
16    drainage, and harvesting for the production of food,
17    fiber, and forest products, or upland soil and water
18    conservation practices.
19        (2) Maintenance, including emergency reconstruction of
20    recently damaged parts, of currently serviceable
21    structures such as dikes, dams, levees, groins, riprap,
22    breakwaters, causeways, bridge abutments or approaches,
23    and transportation structures. Maintenance does not
24    include any modification that changes the character,
25    scope, or size of the original fill design. Emergency

 

 

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1    reconstruction must occur within a reasonable period of
2    time after damage occurs in order to qualify for this
3    exemption.
4        (3) Construction or maintenance of farm or stock ponds
5    or irrigation ditches, or the maintenance (but not
6    construction) of drainage ditches. Discharge associated
7    with siphons, pumps, headgates, wingwalls, weirs,
8    diversion structures, and such other facilities as are
9    appurtenant and functionally related to irrigation and
10    ditches are included in this definition.
11        (4) Construction of temporary sedimentation basins on
12    a construction site which does not include any regulated
13    activities within a wetland or small stream. As used in
14    this paragraph, the term "construction site" means any
15    site involving the erection of buildings, roads, and other
16    discrete structures and the installation of support
17    facilities necessary for construction and utilization of
18    such structures. "Construction site" also includes any
19    other land areas which involve land-disturbing excavation
20    activities, including quarrying or other mining
21    activities, where an increase in the runoff of sediment is
22    controlled through the use of temporary sedimentation
23    basins.
24        (5) Construction or maintenance of farm roads or
25    forest roads or temporary roads for moving mining
26    equipment, where such roads are constructed and

 

 

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1    maintained, in accordance with best management practices,
2    to assure that flow and circulation patterns and chemical
3    and biological characteristics of the wetland or small
4    stream are not impaired, that the reach of the wetland or
5    small stream is not reduced, and that any adverse effect
6    on the aquatic environment will be otherwise minimized.
7        (6) Except for Class I wetlands and small streams,
8    activities for the placement of pilings for linear
9    projects, including bridges, elevated walkways, and power
10    line structures in accordance with best management
11    practices, to assure that the flow and circulation
12    patterns and chemical and biological characteristics of
13    the wetland or small stream are not impaired, that the
14    reach of the wetland or small stream is not reduced, and
15    that any adverse effect on the aquatic environment will be
16    otherwise minimized.
17    (b) Any exemption that is authorized by and pertaining to
18wetlands or streams that are subject to regulation under the
19federal Clean Water Act, or regulations promulgated
20thereunder, at the time of enactment of this Act, shall also be
21an exemption for the purpose of this Act.
22    (c) The following are not jurisdictional wetlands or
23streams for purposes of this Act:
24        (1) Waste treatment systems, including treatment ponds
25    or lagoons designed to meet the requirements of the Clean
26    Water Act and comply with State water quality standards.

 

 

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1        (2) Prior converted cropland.
2        (3) Ditches (including roadside ditches) excavated
3    wholly in and draining only dry land and that do not carry
4    a relatively permanent flow of water.
5        (4) An artificially irrigated area that would revert
6    to upland if the irrigation ceased.
7        (5) An artificial lake or pond created by excavating
8    or diking upland to collect and retain water and which are
9    used exclusively for such purposes as stock watering,
10    irrigation, settling basins, or rice growing.
11        (6) Artificial reflecting or swimming pools or other
12    small ornamental bodies of water created by excavating or
13    diking dry land to retain water for primarily aesthetic
14    reasons.
15        (7) A water-filled depression created in dry land
16    incidental to construction activity and pits excavated in
17    dry land for the purpose of obtaining fill, sand, or
18    gravel unless and until the construction or excavation
19    operation is abandoned and the resulting waterbody meets
20    the definition of "waters of the State."
21        (8) Swales and erosional features, including gullies,
22    rills, and small washes, characterized by low volume,
23    infrequent, or short duration flow.
24    (d) Any activity covered by the Interagency Wetland Policy
25Act of 1989 is exempt from the provisions of this Act. This
26subsection (d) applies only if the Agency is in compliance

 

 

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1with the Interagency Wetland Policy Act of 1989.
 
2    Section 20. Applicability. The requirements of this Act
3apply to all wetlands and small streams as those terms are
4defined in this Act. If a wetland or small stream ceases to
5meet that definition because it becomes subject to regulation
6under the federal Clean Water Act, it shall no longer be
7subject to the provisions of this Act. The Department may
8enter into an agreement with the Corps of Engineers to
9coordinate the permit program under this Act with the Corps of
10Engineers permit program under Section 404 of the Clean Water
11Act.
 
12    Section 25. Regulated activities; individual and general
13permits; small stream and wetland classification; mitigation;
14delineation; veto authority.
15    (a) No person may discharge dredged or fill material from
16a point source into a wetland or small stream protected by this
17Act except in accordance with the terms of an individual or
18general permit issued by the Department pursuant to this
19Section or Section 40 of this Act.
20    (b) Regulated activities in Class I wetlands and small
21streams shall only be authorized through individual permits
22issued by the Department under this Act. Regulated activities
23in Class II wetlands and small streams may be authorized under
24either an individual or general permit issued by the

 

 

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1Department in accordance with this Act. Regulated activities
2in Class III wetlands and small streams can be authorized
3under general permits unless the Department notifies the
4applicant within 30 days after receipt of a predischarge
5notification that the regulated activity will result in a
6significant negative impact on State water quality. In such
7instances, an individual permit will be required.
8    (c) Wetlands and small streams shall be classified as
9follows:
10        (1) The Department shall classify a wetland as Class I
11    if the wetland:
12            (A) is or encompasses a bog, bottomland hardwood
13        forest, fen, panne, or cypress swamp;
14            (B) has been designated a Ramsar wetland of
15        international importance under the Convention on
16        Wetlands;
17            (C) is designated for important flood protection
18        services pursuant to subsection (3);
19            (D) is habitat for a threatened or endangered
20        species listed under State or federal law;
21            (E) has a Floristic Quality Index which is equal
22        to or greater than 20 or a mean coefficient of
23        conservatism (Mean C) equal to or greater than 3.5,
24        determined in accordance with rules adopted by the
25        Department;
26            (F) is or encompasses an ADID site; or

 

 

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1            (G) is a High-Quality Aquatic Resource.
2        (2) The Department shall classify a non-Class I
3    wetland as Class II if the wetland, including contiguous
4    area, is larger than 0.5 acres. However, if a non-Class I
5    wetland is smaller than 0.5 acres it shall be designated
6    Class III.
7        (3) The Department may, in consultation with Illinois
8    Emergency Management Agency and Office of Homeland
9    Security, the Federal Emergency Management Agency or local
10    authorities designate a wetland as Class I due to
11    important flood protection services protecting human life
12    and property if the wetland is no longer protected under
13    the Clean Water Act.
14        (4) The Department shall classify a small stream as
15    Class I if the stream:
16            (A) has been designated a National Wild and Scenic
17        River, Study River, or Riverway;
18            (B) has been designated an Outstanding National
19        Resource Water;
20            (C) has been designated an Outstanding State
21        Resource Water pursuant to 35 Ill. Adm. Code 303.206;
22            (D) serves as drinking water supply;
23            (E) provides habitat or spawning area for rare or
24        ecologically significant fish;
25            (F) has been rated A for Diversity or Integrity or
26        mapped as Biologically Significant under the

 

 

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1        Department's Integrating Multiple Taxa in a Biological
2        Stream Rating System;
3            (G) is a District Designated Water; or
4            (H) contains significant mussel beds as determined
5        in conjunction with the United States Fish and
6        Wildlife Service.
7        (5) The Department shall classify a non-Class I small
8    stream as Class II if the stream:
9            (A) is located within lands under public ownership
10        or holdings;
11            (B) has been rated B for diversity or integrity
12        under the Department's Integrating Multiple Taxa in a
13        Biological Stream Rating System;
14            (C) is adjacent to an approved mitigation bank or
15        mitigation site;
16            (D) is within 1 mile upstream or downstream of
17        primary priority reaches;
18            (E) is designated as enhanced for dissolved oxygen
19        under 35 Ill. Adm. Code 302.206; or
20            (F) is longer than 100 linear feet.
21        (5) The Department shall classify all small streams
22    that are not Class I or Class II as Class III.
23    (d) Mitigation shall be required for all regulated
24activities regardless of the type of permit and shall be
25conducted according to the following preferred order:
26        (1) Discharges impacting Class I wetlands shall be

 

 

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1    mitigated through either on site mitigation or off-site
2    mitigation at an approved wetland mitigation bank within
3    the same watershed as the location of the proposed fill.
4    Mitigation shall be in kind, restoring to the maximum
5    degree practicable as determined by the Department, both
6    the type and functions of the wetland that will be
7    affected by the regulated activity. The mitigation ratio
8    shall be 5:1 unless the Director, for good cause shown and
9    on a case-by-case basis, authorizes a higher mitigation
10    ratio not to exceed 6:1 or a lower mitigation ratio not
11    less than 4:1.
12        (2) Discharges impacting Class II wetlands shall be
13    mitigated through either on site mitigation or off-site
14    mitigation at an approved wetland mitigation bank within
15    the same watershed as the location of the proposed fill.
16    Mitigation shall be in kind, restoring to the maximum
17    degree practicable as determined by the Department, both
18    the type and functions of the wetland that will be
19    affected by the regulated activity. The mitigation ratio
20    shall be 3:1 unless the Director, for good cause shown and
21    on a case-by-case basis, authorizes a higher mitigation
22    ratio not to exceed 3.5:1 or a lower mitigation ratio not
23    less than 2.5:1.
24        (3) Discharges impacting Class III wetlands shall be
25    mitigated through either participation in an approved
26    wetland mitigation bank or an approved in-lieu fee

 

 

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1    program, unless the Department for good cause objects. The
2    mitigation ratio shall be 1:1 for compensation through an
3    approved wetland mitigation bank and 2:1 for compensation
4    through an approved in-lieu fee program. The Director, for
5    good cause shown and on a case-by-case basis, may
6    authorize a higher or lower mitigation ratio.
7        (4) Discharges impacting Class I small streams shall
8    be mitigated through either on site mitigation or off-site
9    mitigation at an approved stream mitigation bank within
10    the same watershed as the location of the proposed fill.
11    Mitigation shall be in kind, restoring to the maximum
12    degree practicable as determined by the Department, both
13    the type and functions of the stream that will be affected
14    by the regulated activity. The mitigation ratio shall be
15    5:1 unless the Director, for good cause shown and on a
16    case-by-case basis, authorizes a higher mitigation ratio
17    not to exceed 6:1 or a lower mitigation ratio not less than
18    4:1.
19        (5) Discharges impacting Class II small streams shall
20    be mitigated through either on site mitigation or off-site
21    mitigation at an approved stream mitigation bank within
22    the same watershed as the location of the proposed fill.
23    Mitigation shall be in kind, restoring to the maximum
24    degree practicable as determined by the Department, both
25    the type and functions of the stream that will be affected
26    by the regulated activity. The mitigation ratio shall be

 

 

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1    3:1 unless the Director, for good cause shown and on a
2    case-by-case basis, authorizes a higher mitigation ratio
3    not to exceed 3.5:1 or a lower mitigation ratio not less
4    than 2.5:1.
5        (6) Discharges impacting Class III small streams shall
6    be mitigated through either participation in an approved
7    stream mitigation bank or an approved in-lieu fee program,
8    unless the Department for good cause objects. The
9    mitigation ratio shall be 1:1 for compensation through an
10    approved stream mitigation bank and 2:1 for compensation
11    through an approved in-lieu fee program. The Director, for
12    good cause shown and on a case-by-case basis, may
13    authorize a higher or lower mitigation ratio.
14    (e) The Agency may override the Department's decision to
15issue a permit under this Act by denying, restricting or
16otherwise limiting the scope of the permit in order to prevent
17violations of Illinois water quality standards, unacceptable
18adverse impacts to municipal water supplies, shellfish beds
19and fishery areas including spawning and breeding areas,
20wildlife, or recreational areas. Before making such
21determination, the Agency shall consult with the Department.
22The Agency shall set forth in writing and make public its
23findings and reasons for making any determination under this
24subsection.
25    (f) Individuals may request a wetland delineation and
26classification from the Department, but are not required to do

 

 

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1so. However, failure to do so is not a defense against
2violation of this Act. The person seeking a wetland
3delineation, classification, or both shall provide the
4Department with sufficient information to render a
5determination. The Department shall notify the person within
615 days of receipt of the request if the request is incomplete.
7The Department shall, upon receipt of a complete request,
8provide the person with a determination within 30 days. The
9Department shall utilize the Corps of Engineers Wetlands
10Delineation Manual. Any determination under this subsection is
11a final decision for purposes of appeal under Section 55 of
12this Act. The Department shall honor delineations by the Corps
13of Engineers or by Corps of Engineers approved agencies.
14    (g) Individuals seeking an individual permit shall provide
15the Department with a complete application, including, at a
16minimum (i) a map of the area that will be affected by the
17activity, including wetland and water boundaries for the areas
18affected and the existing uses and structures; (ii) a wetland
19delineation made in accordance with the Corps of Engineers
20Wetland Delineation Manual and this Section; (iii) a
21description of the proposed activity, including its purpose,
22the location and dimensions of any structures, grading or
23fills, drainage, roads, sewers and water supply, parking lots,
24stormwater facilities, discharge of pollutants and onsite
25waste disposal; (iv) a description of any public benefit to be
26derived from the proposed project; and (v) the names and

 

 

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1addresses of adjacent landowners as determined by the current
2tax assessment rolls. The Department shall notify the
3applicant within 20 days if the permit application is
4incomplete and provide a reasonable time for the applicant to
5correct deficiencies in the permit application. Within 90 days
6of receipt of a complete permit application, the Department
7shall either issue, deny or issue the permit with conditions.
8All individual permit decisions are subject to public comment.
9If a public hearing is held, the deadline to make a permit
10determination is extended by 45 days. A person may submit
11concurrent requests for delineation, classification and permit
12application.
13    (h) The Department shall evaluate individual permit
14requests through the following sequence: (i) avoidance of
15impacts to aquatic resources if a less environmentally
16damaging practicable alternative exists; (ii) minimization of
17unavoidable impacts by taking appropriate and practicable
18steps such as reduction of the footprint of the fill; (iii)
19compensatory mitigation for any remaining impacts to aquatic
20resources in accordance with this Act. The Department shall
21not issue an individual permit pursuant to this Section unless
22the Agency has certified that the proposed activity will not
23cause or contribute to a violation of a State water quality
24standard. The Agency will be deemed to have certified that the
25proposed activity will not cause or contribute to a violation
26of a State water quality standard if it has not issued a

 

 

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1certification or a denial to issue a certification within 80
2days of the filing of a complete permit application under this
3Section.
4    (i) Upon request by an applicant, the Department is
5authorized to issue an after-the-fact permit if it determines
6that the activities covered by the after-the-fact permit were
7undertaken and conducted in response to emergency
8circumstances which constituted an imminent threat to persons,
9public infrastructure, personal property, or uninterrupted
10utility service. The request for an after-the-fact permit must
11be made as soon as reasonably possible after the event. The
12Department shall require compensatory mitigation.
 
13    Section 30. General Permits.
14    (a) Notwithstanding Section 25, any person who intends to
15conduct a regulated activity within the State may do so in
16accordance with a general permit issued by the Department
17under this Section except for activities in Class I wetlands
18or small streams.
19    (b) Permits for all categories of activities, subject to
20the same permit limitations and conditions, that are the
21subject of a nationwide permit issued by the COE, in effect on
22the date of the enactment of this Act, are adopted as general
23permits covering regulated activities subject to this Act
24except activities in Class I wetlands or Class I streams.
25Notwithstanding the foregoing, all such permits will include a

 

 

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1predischarge notification requirement and compensatory
2mitigation, unless the permit states compensatory mitigation
3is not required because the work is designed to improve water
4quality. In any case, compensatory mitigation is not required
5for impacts below 1/10 of an acre.
6    (c) The Department may adopt general permits, through
7public notice and comment rulemaking in accordance with the
8Illinois Administrative Procedure Act, 5 ILCS 100/, covering
9other activities that would be subject to the same permit
10limitations and conditions, if it determines that the
11activities in such a category will cause only minimal adverse
12environmental effects when performed separately, will have
13only minimal cumulative adverse effect on the environment,
14will not cause or contribute to a violation of State water
15quality standards when performed separately, and will have
16only a minimal cumulative adverse effect on water quality. The
17Department shall prescribe best management practices for any
18general permit issued under this Section. The Department shall
19include compensatory mitigation requirements in general
20permits for impact that exceed 1/10 of an acre.
21    (d) The Department must adopt a general permit for:
22        (1) Construction or maintenance of access roads for
23    utility lines, substations, or related equipment or
24    Facilities with adequate culverts, bridges or other
25    structures to provide freshwater connectivity and passage
26    for fish or other aquatic life;

 

 

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1        (2) Activities for the purpose of preserving and
2    enhancing aviation safety or to prevent an airport hazard;
3    and
4        (3) Conservation activities, such as habitat
5    restoration and fish passage.
6    (e) No general permit adopted under paragraphs B, C, or D
7of this Section shall be for a period of more than 5 years
8after the date of its adoption; and the Department shall
9revoke or modify any such general permit, after opportunity
10for public hearing, if the Department determines that the
11activities authorized by the general permit have an adverse
12impact on the environment, cause or contribute to a violation
13of State water quality standards, or are more appropriately
14authorized by individual permits.
15    (f) Compliance with the terms of a general permit shall be
16deemed compliance with the provisions of this Act if the
17applicant:
18        (1) files a predischarge notification in accordance
19    with regulations adopted pursuant to this Act;
20        (2) files any reports required by the general permit;
21        (3) complies with any limitations required by the
22    general permit; and
23        (4) complies with compensatory mitigation
24    requirements.
25    (g) The Department may respond to a predischarge
26notification issued under this Section within 30 days after

 

 

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1the Department receives the notice.
 
2    Section 35. Illinois Wetlands and Streams Advisory
3Committee; duties; rules.
4    (a) The Wetlands and Streams Advisory Committee is
5created, which shall consist of the following 17 voting
6members appointed by the Governor:
7        (1) Five members representing the interests of
8    business, industry, real estate and agriculture;
9        (2) Five members selected from the membership of
10    environmental and conservation groups in the State;
11        (3) Two members representing counties exercising
12    authority under Section 5-1062 or 5-1062.1 of the Counties
13    Code to establish stormwater management programs;
14        (4) One member representing municipalities;
15        (5) One member representing building trades unions;
16    and
17        (6) Three other members as determined by the Governor.
18    In addition to the 17 voting members, the Director of the
19Department of Natural Resources, or his or her designee, and
20the Director of the Illinois Environmental Protection Agency,
21or his or her designee, shall be non-voting members of this
22Committee.
23    The Committee shall biannually elect from its membership a
24Chair, who shall not be an employee of the Illinois
25Environmental Protection Agency or the Department. Members of

 

 

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1the Advisory Committee may organize themselves as they deem
2necessary and shall serve without compensation. The Department
3shall provide reasonable and necessary staff support to the
4Committee.
5    (b) The Committee shall provide support to the Department
6in developing implementing rules pursuant to Section 45 of
7this Act. From time to time the Committee shall review,
8evaluate and make recommendations to the Department:
9        (1) Regarding changes to State laws, rules, and
10    procedures that relate to this Act; and
11        (2) Relating to the Department's efforts to implement
12    this Act.
13    (c) Nothing in this Act shall preclude, at any time, the
14recommendation, proposal, or adoption of any other rules under
15Section 50 or deemed necessary for the orderly implementation
16of this Act.
17    (d) The Committee shall develop a plan for statewide
18wetlands protection and shall submit such plan to the
19Department. The Committee may assist the Department with
20development of a Memorandum of Agreement with the Corps of
21Engineers in accordance with Section 25.
22    (e) The Committee shall assist counties having stormwater
23management authority under Section 5-1062 or 5-1062.1 of the
24Counties Code in coordinating and unifying stormwater
25management regulations adopted thereto, as required in
26subsection (F) of Section 60.
 

 

 

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1    Section 40. Rulemaking.
2    (a) The Department shall, in consultation with the
3Committee:
4        (1) Propose rules to implement Sections 30 and 40 of
5    this Act within 120 days of passage of this Act,
6    including: (A) Rules for the review, issuance, denial or
7    issuance with conditions of individual permits; and (B)
8    Rules to promulgate, revise or revoke general permits.
9        (2) Develop rules to administer and prioritize use of
10    funding from the Wetlands and Small Streams Protection
11    Fund pursuant to Section 65 of this Act.
12        (3) Develop rules to approve and administer mitigation
13    banks and in lieu fee programs under Section 43 of this
14    Act, including:
15            (A) Criteria that an applicant to operate a
16        mitigation or in lieu fee program under Section 43 of
17        this Act shall meet that are at least as stringent as
18        the Army Corps of Engineers requirements (33 CFR Part
19        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) Develop rules within 120 days of passage of this

 

 

SB3669- 29 -LRB103 36679 MXP 66789 b

1    Act to establish the procedures under which a governmental
2    body with a stormwater management program under Section
3    5-1062 of the Counties Code shall be recognized to have
4    met the conditions of division (b) of Section 60 of this
5    Act; and
6        (5) Develop any other rules necessary to administer
7    this Act.
8    (b) The Department may, in consultation with the
9Committee, provide by rule for any requirements regarding
10bonds or letters of credit in favor of the State, including
11conditions sufficient to secure compliance with conditions and
12limitations of a permit.
 
13    Section 45. Appeal of final Agency decision; judicial
14review.
15    (a) Any permit applicant who has been denied a permit in
16whole or in part, and any person who participated in the permit
17proceeding and who is aggrieved by a decision of the
18Department to grant a permit in whole or in part, may appeal
19the decision to the Director within 60 days of the permit grant
20or denial. In all such appeals, the burden of persuasion shall
21be on the party appealing the Department's decision.
22    (b) A person aggrieved by a final decision made under this
23Act, including parties that have participated in the permit
24process if a permit was granted, may seek judicial review of
25the decision under the Administrative Review Law.
 

 

 

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1    Section 50. Investigation; enforcement.
2    (a) In accordance with constitutional limitations, the
3Department shall have authority to enter at all reasonable
4times upon any private or public property for the purpose of
5inspecting and investigating to ascertain compliance and
6possible violations of this Act, implementing regulations, or
7permits.
8    (b) The civil penalties provided for in this Section may
9be recovered in a civil action which may be instituted in a
10court of competent jurisdiction. The State's Attorney of the
11county in which the alleged violation occurred, or the
12Attorney General may at the request of the Department or on his
13or her own motion, institute a civil action in a court of
14competent jurisdiction to recover civil penalties and to
15obtain an injunction to restrain violations of this Act and to
16compel compliance.
17    (c) Any person who violates any provision of this Act, any
18rule adopted hereunder, or any permit or term or condition
19thereof, shall be liable for a civil penalty not to exceed
20$10,000 per day of violation. Any such penalty shall be made
21payable to the Wetlands and Small Streams Protection Fund and
22shall be deposited into that Fund as provided in Section 65. In
23assessing a penalty, courts may consider any matters of record
24including:
25        (1) The duration and gravity of the violation;

 

 

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1        (2) The presence or absence of due diligence on the
2    part of the violator in attempting to comply with the Act;
3        (3) Any economic benefits accrued by the violator
4    through the violation;
5        (4) The likely deterrence effect of the penalty; and
6        (5) Any history on the part of the violator of past
7    violations of this Act.
8    (d) Violations of this Act, rules adopted hereunder or
9permits shall not be deemed criminal offenses.
10    (e) All final orders imposing civil penalties pursuant to
11this Section shall prescribe the deadline for payment. If any
12such penalty is not paid within the time prescribed, interest
13on the penalty shall be charged at the rate set forth in
14subsection (a) of Section 1003 of the Illinois Income Tax Act
15unless the deadline for payment is stayed by a court pending
16appeal.
17    (f) The Department may terminate a permit if the permittee
18violated the terms of the permit, obtained the permit by
19misrepresentation, or failed to disclose relevant facts.
20    (g) The Attorney General or States Attorney of the county
21where the affected wetland or stream is located, may, upon his
22or her own motion or upon request of the Department, institute
23a civil action in circuit court for an injunction or other
24appropriate legal action to restrain a violation of this Act.
25In the proceeding, the court shall determine whether a
26violation has been committed or is likely to occur, and shall

 

 

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1enter any order it considers necessary to remove the effects
2of the violation and to prevent the violation from occurring,
3continuing or being renewed in the future. An order may
4include a requirement that the violator restore the affected
5wetland area, including a provision that, if the violator does
6not comply by restoring the wetland within a reasonable time,
7the Department may restore the wetland to its condition prior
8to the violation and the violator shall be liable to the
9Department for the cost of the restoration. However, the
10Department retains the right to act to remedy emergency
11situations, such as threats to public safety, and the violator
12shall be liable to the Department for the cost of the
13restoration.
14    (h) This Act is enforceable under Section 31(d) of the
15Illinois Environmental Protection Act, 415 ILCS 5/31.
16    (i) Any penalty assessed under this Act, including costs
17of wetland restoration and any restoration requirement, shall
18be recorded by the clerk of the court as a lien against the
19property and shall not be removed until the penalty is paid or
20the restoration is completed.
21    (j) All costs, fees and expenses in connection with an
22enforcement or restoration action shall be assessed as damages
23against the violator.
24    (k) Enforcement actions under this Section may be
25concurrent or separate.
 

 

 

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1    Section 55. County authority.
2    (a) Nothing in this Act preempts or denies the right of any
3governmental body with a stormwater management program under
4Section 5-1062 of the Counties Code to control or regulate
5activities in any wetlands within the jurisdiction of the
6governmental body.
7    (b) Upon the request of a governmental body with a
8stormwater management program under Section 5-1062 of the
9Counties Code, the Director shall, within 30 calendar days of
10receiving the written request, provide a letter recognizing
11whether the governmental body's stormwater management program:
12        (1) Provides wetlands and streams protection
13    consistent with the scope and intent of this Act;
14        (2) Has an administration and qualified staff to
15    implement the governmental body's stormwater management
16    program; and
17        (3) Is implementing and enforcing their stormwater
18    management program.
19    (c) Activities within or affecting wetlands that occur
20within the jurisdiction of a governmental body with a
21stormwater management program under Section 5-1062 of the
22Counties Code that meets the provisions of paragraphs (1),
23(2), and (3) of subsection (B) of this Section are deemed to be
24in compliance with the requirements of this Act, but must meet
25those county stormwater management requirements, at a minimum.
26This also applies during the period that the Department is

 

 

SB3669- 34 -LRB103 36679 MXP 66789 b

1considering a county's request under subsection (B), but the
2requirements of this Act do apply until the county has
3requested recognition under subsection (B). Lake, Cook, Kane,
4McHenry, and DuPage Counties are deemed to have requested
5recognition as of the date of enactment of this Act.
6    (d) The Director may rescind recognition status, or place
7conditions on recognition status, after notification, a public
8hearing and a reasonable opportunity for the county to cure
9the defect, if the governmental body with a stormwater
10management program under Section 5-1062 of the Counties Code
11continues to no longer meet the provisions of paragraphs (1),
12(2) and (3) of subsection (B) of this Section.
13    (e) A governmental body with a stormwater management
14program under Section 5-1062 of the Counties Code that has
15obtained recognition by the Director under subsection (b) of
16this Section shall submit an annual report to the Director.
17    (f) Counties having authority under Section 5-1062 of the
18Counties Code to adopt a stormwater management program shall
19seek the assistance of the Chicago Metropolitan Agency for
20Planning to coordinate and unify regulations adopted pursuant
21thereto.
22    (g) Nothing in this Act shall be construed as a limitation
23or preemption of any home rule power.
24    (h) The Department may provide technical assistance and
25grant funding pursuant to Section 65 to governmental bodies
26with approved programs under this Section.
 

 

 

SB3669- 35 -LRB103 36679 MXP 66789 b

1    Section 60. Wetlands and Small Streams Protection Fund.
2    (a) The Wetlands and Small Streams Protection Fund shall
3be established as a special fund in the State Treasury, to be
4managed by the Department, separate and distinct from the
5General Revenue Fund. Any interest earned by the Wetlands and
6Small Streams Protection Fund shall be credited to the Fund.
7The purpose of the Wetlands and Small Streams Protection Fund
8is to further wetlands and small streams protection and
9management. Its purpose is to supplement, not supplant,
10existing Department resources. The Wetlands and Small Streams
11Protection Fund may not be utilized to pay for compensatory
12mitigation obligations under this Act.
13    (b) Pursuant to Section 55, all penalties collected by the
14Department pursuant to this Act shall be deposited into the
15Wetlands and Small Streams Protection fund.
16    (c) The Illinois General Assembly may appropriate
17additional monies to the Wetlands and Small Streams Protection
18Fund to implement this Act.
19    (d) The Department shall utilize the monies in the
20Wetlands and Small Streams Protection fund to further wetlands
21and small streams protection and management. Eligible uses
22include:
23        (1) Providing technical assistance and grant funding
24    to counties with approved programs under Section 60 to
25    restore, preserve, enhance, protect or maintain wetlands,

 

 

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1    streams, and upland buffers, particularly Class I areas or
2    wetlands, waters and buffers that provide floodwater
3    storage and flood risk reduction;
4        (2) Supplementing other State, local or private
5    funding for non-compensatory wetlands and small streams
6    restoration, enhancement, preservation and maintenance;
7        (3) Matching funds for wetland and stream inventories,
8    mapping, watershed planning and wetland program
9    development grants; and
10        (4) Staffing and administrative costs for the
11    Department to implement this Act.
 
12    Section 65. Review Fee. All inquiries to determine whether
13or not the proposed activity requires permit authorization by
14the Department under this Act will be reviewed by the
15Department free of charge. A permit review fee is required for
16all permit applications under this Act. The Department shall
17establish a graduated review fee payment schedule from $260 to
18$5,000 depending on the intensity of required review and the
19size of the individual project. Accordingly, highest review
20fees will be charged for individual permits to authorize major
21projects. The Department may charge a reasonable fee for
22wetlands delineation and classification.
 
23    Section 90. The State Finance Act is amended by adding
24Section 5.1015 as follows:
 

 

 

SB3669- 37 -LRB103 36679 MXP 66789 b

1    (30 ILCS 105/5.1015 new)
2    Sec. 5.1015. The Wetlands and Small Streams Protection
3Fund.
 
4    Section 97. Severability. The provisions of this Act are
5severable under Section 1.31 of the Statute on Statutes.
 
6    Section 99. Effective date. This Act takes effect upon
7becoming law.