HB3876 94TH GENERAL ASSEMBLY

LRB094 11594 JAM 42647 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB3876

Introduced 2/28/2005, by Rep. Karen May

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.640 new

Creates the Wetlands Protection Act. Provides for the regulation of certain wetlands in Illinois. Amends the State Finance Act to create the Wetlands Protection Fund.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning wetlands.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

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

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

Section 10. Definitions. For the purposes of this Act:

(a) "ADID" means those aquatic sites identified by the United States Environmental Protection Agency and the United States Army Corps of Engineers as areas generally unsuitable for disposal of dredged or fill material in accordance with 40 C.F.R. Part 230.80.

(b) "Affected property" means any property upon which a regulated activity is conducted.

(c) "Agency" means the Illinois Environmental Protection Agency.

(d) "Agricultural land" means land that is currently used for normal farming or ranching activities.

(e) "Avoidance" means any action taken in a manner such that a regulated activity will not occur.

(f) "Bog" means a peat-accumulating wetland that has no significant inflows or outflows and supports acidophilic mosses, particularly sphagnum, resulting in highly acidic conditions.

(g) "Commencing such a regulated activity" means any steps taken in preparation of conducting a regulated activity that may impact the affected property, such as cutting, filling, pumping of water, and earth movement.

(h) "Committee" means the Wetlands Advisory Committee.

(i) "Contiguous wetland" means a wetland that is delineated on the affected property and extends beyond the boundary of that property.

(j) "Converted wetland" means a wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) for the purpose of or with the effect of making possible the production of an agricultural commodity without further application of the manipulations described herein if: (i) such production would not have been possible but for such action, and (ii) before such action such land was wetland, farmed wetland, or farmed-wetland pasture and was neither highly erodible land nor highly erodible cropland.

(k) "Corps of Engineers" or "COE" means the United States Army Corps of Engineers.

(l) "Cypress swamp" means forested, permanent or semi-permanent bodies of water, with species assemblages characteristic of the Gulf and Southeastern Coastal Plains, including bald cypress, which are restricted to extreme southern Illinois.

(m) "Department" means the Illinois Department of Natural Resources.

(n) "Director" means the Director of Natural Resources.

(o) "Fen" means a wetland fed by an alkaline water source such as a calcareous spring or seep.

(p) "Floristic quality index" means an index calculated using the Floristic Quality Assessment Method of assessing floristic integrity (or quality) by summing the numerical quality ratings of all plant species present then dividing the total by the number of native species present (mean coefficient of conservatism) or by the square root of the number of native species (floristic quality index). (Taft, J.B., G.S. Wilhelm, D.M. Ladd, and L.A. Masters. 1997. Floristic quality assessment for vegetation in Illinois, a method for assessing vegetation integrity. Erigenia 15: 3-95.)

(q) "Incidentally created" means created as a result of any normal or routine activity coincidental with the conduct of legitimate business enterprises, except that a wetland or depression created as mitigation for any activity affecting wetlands is not "incidentally created."

(r) "Incidental fallback" means the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the State when such material falls back to substantially the same place as the initial removal.

(s) "Isolated wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, and that are not regulated under the federal Clean Water Act.

(t) "Panne" means wet interdunal flats located near Lake Michigan.

(u) "Person" means an individual, partnership, co-partnership, firm, company, limited liability company, corporation, association, joint stock company, trust, estate, political subdivision, State agency, or other legal entity, or its legal representative, agent, or assigns.

(v) "Prior converted cropland" means a converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity has been produced at least once before December 23, 1985, and as of December 23, 1985, the converted wetland did not support woody vegetation and met the following hydrologic criteria: (i) inundation was less than 15 consecutive days during the growing season or 10% of the growing season, whichever is less, in most years (50% chance or more); and (ii) if a pothole, ponding was less than 7 consecutive days during the growing season in most years (50% chance or more) and saturation was less than 14 consecutive days during the growing season most years (50% chance or more).

(w) "Regulated activity" means the discharge of dredged or fill material into a wetland, the drainage of a wetland, or excavation of a wetland that results in more than incidental fallback.

(x) "Threatened or endangered species" means those species that have been designated as threatened or endangered by the Illinois Endangered Species Protection Board pursuant to the Illinois Endangered Species Protection Act and those species that have been designated as threatened or endangered by the U.S. Fish and Wildlife Service pursuant to the Endangered Species Act.

(y) "Upland" means non-wetland, when used to describe a particular land use, or non-hydric, when used to describe a soil type.

(z) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

Section 20. Exemptions.

(a) As long as they do not have as their purpose bringing a wetland into a use to which it was not previously subject, the following are not prohibited by or otherwise subject to regulation under this Act:

(1) Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.

(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures.

(3) Construction or maintenance of farm or stock ponds or irrigation canals or ditches, or the maintenance of drainage ditches.

(4) Construction of temporary sedimentation basins on a construction site that does not include any regulated activities within a wetland.

(5) Construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the wetland are not impaired, that the reach of the wetland is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

(6) Except for Class IA and Class IB wetlands, activities for the placement of pilings for linear projects, such as bridges, elevated walkways, and power line structures in accordance with best management practices, to assure that the flow and circulation patterns and chemical and biological characteristics of the wetland are not impaired, that the reach of the wetland is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

(7) Installation and maintenance of signs, lighting, and fences and the mowing of vegetation within existing maintained rights-of-way.

(8) Repair and maintenance of existing buildings, facilities, lawns, and ornamental plantings.

(9) Construction projects that have obtained any necessary building permits from applicable local jurisdictions prior to the effective date of this Act.

(10) Application of media, including deicing media, on the surface of existing roads for purposes of public safety.

(11) Non-surface disturbing surveys and investigations for construction, planning, maintenance, or location of environmental resources.

(12) Wetland management practices on lands that are used primarily for the management of waterfowl, other migratory water birds, or furbearers if such practices took place on these lands prior to the effective date of this Act. This includes vegetation management that may include the use of fire, chemical, or mechanical (hydro-axe, bulldozer, rome disk, or similar equipment) removal of invading woody or herbaceous vegetation to maintain a preferred successional stage. Use of chemicals must be by a certified applicator and chemicals must be registered for appropriate use. Clearing or removal of woody vegetation shall be limited to 4-inch dbh (diameter at breast height) or smaller material for the purpose of establishing or maintaining the successional stage of a wetland as an herbaceous wetland vegetated by native moist soil plants or selected wildlife food plants.

(b) Any exemption authorized by and pertaining to wetlands that are subject to regulation under the federal Clean Water Act, or regulations promulgated thereunder, shall also be an exemption for the purpose of this Act.

(c) The following are not isolated wetlands for purposes of this Act:

(1) Waste treatment systems, including treatment ponds or lagoons, designed to comply with water quality standards of the State or to remediate a site in accordance with an approved Agency program, and former waste treatment systems that have ceased operation less than 33 years prior to commencement of the proposed activity or which are undergoing remediation in accordance with an approved Agency program.

(2) A drainage or irrigation ditch.

(3) An artificially irrigated area that would revert to upland if the irrigation ceased.

(4) An artificial lake or pond created by excavating or diking upland to collect and retain water for the primary purpose of stock watering, irrigation, wildlife, fire control, ornamentation or landscaping, or as a settling pond.

(5) Except for isolated wetlands created pursuant to mining activities regulated in accordance with item (7) below, an incidentally created water-filled depression, unless: (i) ownership of the property containing the depression has been transferred away from the party who incidentally created the water-filled depression, (ii) that ownership transfer occurred more than 12 months prior to the commencement of an otherwise regulated activity, (iii) the use of the property has changed from the use that existed when the property was transferred from the party who incidentally created the water-filled depression, and (iv) the resulting body of water meets the definition in this Act of an isolated wetland; or if the ownership of the property has not been transferred from the party who created the incidentally created water-filled depression, the depression was not created more than 33 years before the date the application is received by the Department.

(6) Stormwater or spill management systems, including retention and detention basins, ditches and channels, and former stormwater or spill management systems that have ceased operation less than 33 years prior to commencement of the proposed activity or which are undergoing remediation in accordance with an approved Agency program.

(7) Waters that undergo mining activities conducted pursuant to a federal, State, regional, or local permit that requires the reclamation of the affected wetlands if the reclamation will be completed within a reasonable period of time after completion of activities at the site and, upon completion of such reclamation, the wetlands will support functions generally equivalent to the functions supported by the wetlands at the time of commencement of such activities.

(8) Prior converted cropland.

(d) Any activity covered by the Interagency Wetland Policy Act of 1989 is exempt from all of the provisions of this Act.

Section 25. Applicability. Until June 30, 2008, the requirements of this Act apply to all isolated wetlands as that term is defined in this Act. In the event that an isolated wetland ceases to meet that definition because it becomes subject to regulation under the federal Clean Water Act, such wetland shall no longer be subject to the provisions of this Act.

Beginning July 1, 2008, the requirements of this Act apply to all wetlands as that term is defined in this Act, unless a COE permit is required; provided, however, that if an exemption under Section 20 applies, that exemption shall continue in effect after July 1, 2008.

The Department on behalf of the State of Illinois may enter into written delegation agreements with the Corps of Engineers under which it may assume all or portions of COE authority under the federal Clean Water Act. Such delegation agreements shall provide, at a minimum, that all delineation, classification, notification, and permitting requirements shall be at least as stringent as those contained in this Act.

Section 30. Wetlands delineation, classification, notification, permits. The requirements of this Section apply upon the adoption of rules under Sections 45(c) and 60 of this Act, or 270 days from the effective date of this Act, whichever occurs first.

(a) The procedures and regulatory criteria for the delineation, classification, notification, and permitting for wetlands shall be conducted in accordance with the provisions of this Section.

(b) Any person who intends to conduct a regulated activity within the State may request a determination from the Department as to the existence, location, and surface area of any wetlands on or contiguous to the affected property. Nothing in this Section shall require the person to seek such a determination; however, failure to seek and obtain a determination shall not be a defense against a violation of this Act.

The person seeking a determination shall provide the Department with sufficient information to render such a determination. Such information shall include a wetland delineation made in accordance with the COE Wetlands Delineation Manual, Technical Report Y-87-1. Delineation of the portion of a contiguous wetland not on the affected property shall be made to the extent reasonably possible, and methods other than physical onsite evaluations shall be considered by the Department.

The Department shall provide notice to the applicant as to whether a submitted application is complete. Unless the Department notifies the applicant that the application is incomplete within 15 days of receipt of the application, the application shall be deemed complete. The Department may request additional information as needed to make the completeness determination.

The Department shall, upon receipt of a complete determination request, provide the person, within 30 days, with a determination as to the existence, location, and surface area of wetlands located on or contiguous to the affected property.

If the Department determines that there are no wetlands on the affected property, any otherwise regulated activity conducted on the property shall not be subject to the provisions of this Act.

If the Department determines that there is one or more wetlands on or contiguous to the affected property, the person may apply to the Department for classification of such wetlands.

Any determination of a wetland by the Department is a final decision for purposes of appeal.

(c) If any person intends to conduct a regulated activity, such person may, prior to commencing such a regulated activity, request that the wetland be classified as Class IA, IB, II, or III in accordance with the provisions of this Section. Nothing in this Section shall require the person to seek such a classification; however, any wetlands not so classified shall be considered Class IA for the purposes of this Act.

The person seeking a classification shall provide the Department with sufficient information to render such a classification. Such information shall include a wetland delineation made in accordance with the COE Wetlands Delineation Manual, Technical Report Y-87-1.

Unless the Department notifies the applicant that the application is incomplete within 15 days of receipt of the application, the application shall be deemed complete. The Department may request additional information as needed to make the completeness determination. The Department shall, upon receipt of a complete classification request, provide the person, within 30 days, with a classification of wetlands located on or contiguous to the affected property. If the Department fails to provide the person with a classification within 30 days, the classification requested by the person shall be deemed granted.

Wetlands shall be classified as follows:

(1) The Department shall classify a wetland as a Class IA Wetland if and only if:

(A) the wetland is or encompasses a bog;

(B) the wetland is or encompasses a fen;

(C) the wetland is or encompasses a panne;

(D) the wetland is or encompasses a cypress swamp;

(E) the wetland is or encompasses a Category I Illinois Natural Areas Inventory Site, provided that the Department shall disclose within 5 working days of a request from an applicant, a prospective applicant, or a qualified professional on behalf of an applicant or a prospective applicant whether a site identified by latitude and longitude includes a Category I Illinois Natural Areas Inventory Site; or

(F) a threatened or endangered species has been identified in the wetland.

(2) The Department shall classify a wetland as a Class IB Wetland if and only if the wetland:

(A) is or encompasses an ADID site;

(B) is or encompasses a Category VI Illinois Natural Area Inventory Site or regional equivalent; provided that the Department shall disclose within 5 working days of a request from an applicant, a prospective applicant, or a qualified professional on behalf of an applicant or a prospective applicant whether a site identified by latitude and longitude includes a Category VI Illinois Natural Areas Inventory Site; or

(C) has a Floristic Quality Index (FQI) which is equal to or greater than 20 or a mean coefficient of conservatism (Mean C) equal to or greater than 3.5, determined in accordance with rules adopted by the Department.

(3) The Department shall classify a wetland as a Class II Wetland if and only if the wetland is not a Class I-A, Class I-B, or Class III wetland.

(4) The Department shall classify a wetland as a Class III Wetland if and only if:

(A) the wetland is not a Class IA or Class IB wetland; and

(B) the total size of the wetland, including contiguous areas, is

(i) less than 0.25 acre, or

(ii) less than 0.5 acre if the wetland is in a county that does not have authority to establish a stormwater management program under Section 5-1062 of the Counties Code and the wetland is in agricultural land.

(d) Subject to the provisions of Section 40 regarding general permits, no person may conduct or cause to be conducted a regulated activity within or affecting a wetland in such a manner that the biological or hydrological integrity of the wetland is impaired within the scope of this Act, except in accordance with the terms of an individual permit issued by the Department or authorization to proceed as applicable under this Section.

(1) Class IA Wetlands:

(A) A permit to conduct a regulated activity affecting a Class IA wetland within the scope of this Act shall be granted if documentation is submitted that demonstrates that complete avoidance of impacts to the Class IA wetland precludes all economic use of the entire parcel and that no practicable alternative to wetland modification exists.

Based upon a review of the submitted documentation and any other available resources, the Department shall make a determination as to whether the proposed modification represents the least amount of wetland impact required to restore an economic use to the upland portion of the parcel.

Wetland losses shall be mitigated at a ratio of 4.5:1 and shall be mitigated in kind and within the same watershed as the impacted area restoring, to the maximum degree practicable as determined by the Department, both the type and functions of the wetland that will be affected by the regulatory activity.

The Director, for good cause shown and on a case-by-case basis, may authorize an upward or downward departure from the mitigation ratio otherwise required under this subdivision (d)(1), but for a Class IA wetland the Director shall require a mitigation ration of at least 4:1 and shall not require a mitigation ratio greater than 5:1.

(B) No permit under this subdivision (d)(1) may be issued by the Department without a public notice and a public hearing.

(2) Class IB Wetlands:

(A) A permit to conduct a regulated activity affecting a Class IB wetland within the scope of this Act shall be granted if documentation is submitted that demonstrates that no practicable alternative to wetland modification exists.

Based upon a review of the submitted documentation and any other available resources, the Department shall make a determination as to whether the proposed modification constitutes the least amount of wetland impact practicable and whether a permit should be granted.

Wetland losses shall be mitigated at a ratio of 3:1 and shall be mitigated in kind and within the same watershed as the impacted area, restoring both the type and functions of the wetlands that will be affected by the regulated activity.

The Director, for good cause shown and on a case-by-case basis, may authorize an upward or downward departure from the mitigation ratio otherwise required under this subdivision (d)(2), but for a Class IB wetland the Director shall require a mitigation ration of at least 2.5:1 and shall not require a mitigation ratio greater than 3.5:1.

(B) No permit under this subdivision (d)(2) may be issued by the Department without a public notice and opportunity for public hearing being afforded. The Department shall hold a public hearing concerning a permit application if the proposed activity may have a significant impact upon wetland resources or if the Department determines that a public hearing is otherwise appropriate.

(3) Class II Wetlands:

(A) A permit to conduct a regulated activity affecting a Class II wetland within the scope of this Act shall be granted if documentation is submitted demonstrating that no reasonable alternative to wetland modification exists.

Based upon a review of the submitted documentation and any other available resources, the Department shall make a determination as to whether the proposed modification constitutes the least amount of wetland impact practicable and whether a permit should be granted.

Wetland losses shall be mitigated at a ratio of 1.5:1 and shall be mitigated in kind and within the same watershed as the impacted area, restoring both the type and functions of the wetland that will be affected by the regulated activity.

(B) No permit under this subdivision (d)(3) may be issued by the Department without a public notice and opportunity for public hearing being afforded. The Department shall hold a public hearing concerning a permit application if the proposed activity may have a significant impact upon wetland resources or if the Department determines that a public hearing is otherwise appropriate.

(4) Class III Wetlands:

(A) No regulated activity covered under this Act that will impact an area that has been classified as a Class III wetland may be undertaken without prior notification to the Department.

(B) Such notification shall include (1) a sketch that reasonably depicts the area that will be affected by the regulated activity, including wetland and water boundaries for the areas affected and the existing land uses and structures; (2) a description of the proposed activity, including its purpose; (3) a description of any public benefit to be derived from the proposed project; and (4) the names and addresses of adjacent landowners as determined by the current tax assessment rolls.

(C) Upon receipt of a notification of intent, the Department shall verify that the regulated activity will affect a wetland that it previously classified as Class III.

If the Department so verifies, the Department shall send the person, within 30 days of the receipt of such notification, a response stating that the regulated activity may proceed.

If the Department cannot so verify, the Department shall send the person, within 30 days of the receipt of such notification, a response stating that no classification has been made by the Department, or that a Classification of IA, IB, or II was made and that the regulated activity may not proceed until either a classification is made pursuant to this Section, or a permit is obtained, as applicable.

Failure of the Department to respond to a notification shall be deemed an authorization to proceed.

(D) No permit shall be required for a regulated activity covered under this Act that will impact an area that has been classified as a Class III wetland.

(e) Within 15 days of the receipt of a permit application, the Department shall determine if an application is complete. To be deemed complete, an application must provide all information, as requested in Department application forms, sufficient to evaluate the application. Such information shall include, at a minimum: (1) a map of the area that will be affected by the activity, including wetland and water boundaries for the areas affected and the existing uses and structures. Such information shall include a wetland delineation made in accordance with the COE Wetlands Delineation Manual, Technical Report Y-87-1; (2) a description of the proposed activity, including its purpose, the location and dimensions of any structures, grading or fills, drainage, roads, sewers and water supply, parking lots, stormwater facilities, discharge of pollutants, and onsite waste disposal; (3) a description of any public benefit to be derived from the proposed project; and (4) the names and addresses of adjacent landowners as determined by the current tax assessment rolls. The Department application forms shall be finalized and made available prior to the date on which any application is required. The Department shall provide notice to the applicant as to whether a submitted application is complete. Unless the Department notifies the applicant that the application is incomplete within 20 days of receipt of the application, the application shall be deemed complete. The Department may request additional information as needed to make the completeness determination. The Department may, to the extent practicable, provide the applicant with a reasonable opportunity to correct deficiencies prior to a final determination of completeness. Within 90 days from the receipt of a complete application for permit, the Department shall either issue or deny the permit or issue it with conditions. If a public hearing is held on the application, however, this period shall be extended by 45 days.

(f) The Department shall not issue a permit pursuant to this Section unless the Agency has certified that the proposed activity will not cause or contribute to a violation of any State water quality standard. The Agency will be deemed to have certified that the proposed activity will not cause or contribute to a violation of any State water quality standard if it has not declined in writing to so certify within 80 days of the filing of the application unless the Agency has requested that the applicant supply more information relevant to assessing the water quality impacts of the proposed activity. If a public hearing is held on the application, however, this period shall be extended by 45 days.

(g) A person may submit concurrent requests for (i) determination and delineation, (ii) classification, and (iii) issuance of a permit or notification. The Department shall act on such combined requests concurrently in accordance with expedited permitting procedures adopted by the Department.

(h) Any person may submit an application for an after-the-fact permit to be issued under this Act, and the Department is authorized to issue such an after-the-fact permit if it determines that the activities covered by the after-the-fact permit application were undertaken and conducted in response to emergency circumstances where there may be an imminent threat to persons, public infrastructure, personal property, or uninterrupted utility service that made it impracticable for the applicant to obtain prior authorization under this Act to undertake and conduct such activities. The applicant shall be required to demonstrate that it provided notice to the Department of the emergency circumstances as soon as reasonably possible following the discovery of such circumstances.

(i) The Department shall adopt rules to carry out the provisions of this Section in accordance with Section 45 of this Act.

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

Section 40. General permits.

(a) Notwithstanding Section 30, any person who intends to conduct a regulated activity within the State may do so in accordance with a general permit issued by the Department under this Section.

(b) Permits for all categories of activities, subject to the same permit limitations and conditions, that are the subject of a nationwide permit issued by the Corps of Engineers in effect on the date of the enactment of this Act, are adopted as general permits covering regulated activities subject to this Act.

(c) The Department may adopt general permits covering other activities that would be subject to the same permit limitations and conditions, if it determines that the activities in such category will cause only minimal adverse environmental effects when performed separately, will have only minimal cumulative adverse effect on the environment, will not cause or contribute to a violation of State water quality standards when performed separately, and will have only a minimal cumulative adverse effect on water quality. The Department may prescribe best management practices for any general permit issued under this Section. The Department shall consider any optional mitigation proposed by an applicant in determining whether the net adverse environmental effects of a proposed regulated activity are minimal.

Specifically, the Department must adopt general permits for each of the following:

(1) The construction or maintenance of access roads for utility lines, substations or related equipment or facilities.

(2) Activities for the purpose of preserving and enhancing aviation safety or to prevent an airport hazard.

(d) No general permit adopted under this Section shall be for a period of more than 5 years after the date of its issuance. A general permit may be revoked or modified by the Department if, after opportunity for public hearing, the Department determines that the activities authorized by the general permit have an adverse impact on the environment, cause or contribute to a violation of State water quality standards, or are more appropriately authorized by individual permits.

(e) Compliance with the terms of a general permit shall be deemed compliance with the provisions of this Act if the applicant (i) files a notice of intent to be covered under the provisions of the general permit in accordance with regulations adopted pursuant to this Act and (ii) files any reports required by the general permit.

(f) The Department shall respond to a notice of intent to proceed under a general permit issued under this Section within 30 days after the Department receives the notice. In the event that the Department fails to respond to a notice of intent to proceed within 30 days as required by this subsection (f), the person submitting the notice shall be deemed fully authorized to conduct the activities described in the notice under the terms and conditions of the applicable general permit.

Section 45. Wetlands Advisory Committee; duties; rules

(a) There is hereby established a Wetlands Advisory Committee, which shall consist of 17 members appointed by the Governor and 2 non-voting members.

The Committee shall include 5 members representing the interests of business, industry, real estate, and agriculture.

The Committee shall include 5 members selected from the membership of environmental and conservation groups in the State.

The Committee shall include 2 members representing counties exercising authority under Section 5-1062 or 5-1062.1 of the Counties Code to establish stormwater management programs.

The Committee shall include one member representing municipalities.

The Committee shall include one member representing building trades unions.

The Committee shall include 3 other members as determined by the Governor.

The Director of Natural Resources, or his or her designee, and the Director of the Illinois Environmental Protection Agency, or his or her designee, shall be non-voting members of the Committee.

The Committee shall biannually elect from its membership a Chair, who shall not be an employee of the Illinois Environmental Protection Agency or the Illinois Department of Natural Resources.

Members of the Advisory Committee may organize themselves as they deem necessary and shall serve without compensation.

The Department shall provide reasonable and necessary staff support to the Committee.

(b) Within 120 days after the effective date of this Act, the Committee shall recommend rules to the Department. From time to time the Committee shall review, evaluate, and make recommendations (i) regarding State laws, rules, and procedures that relate to this Act and (ii) relating to the State's efforts to implement this Act.

(c) Within 6 months after the effective date of this Act, the Department, after consideration of the recommendations of the Committee (or if the Committee for any reason has not made recommendations, the Department itself), shall adopt any rules required by this Act prescribing procedures and standards for its administration. Nothing in this Act shall preclude, at any time, the recommendation, proposal, or adoption of any other rules deemed necessary for the orderly implementation of this Act.

(d) The Committee shall develop a plan for statewide wetlands protection and shall submit such plan to the Department. The Department may seek to obtain a delegation of COE authority under Section 404 of the federal Clean Water Act for all wetlands in Illinois on or before July 1, 2008 in accordance with Section 25 of this Act.

(e) The Committee shall assist counties having stormwater management authority under Section 5-1062 or 5-1062.1 of the Counties Code in coordinating and unifying stormwater management regulations adopted thereto, as required in Section 65(f) of this Act.

Section 50. Appeal of final Department decision; judicial review.

(a) Any permit applicant who has been denied a permit in whole or in part, and any person who participated in the permit proceeding and who is aggrieved by a decision of the Department to grant a permit in whole or in part, may appeal the decision to the Director within 35 days of the permit grant or denial. However, the 35-day period for appealing to the Director may be extended by the applicant for a period of time not to exceed 90 days by written notice provided to the Director. In all such appeals, the burden of persuasion shall be on the party appealing the Department's decision.

(b) A person aggrieved by a final decision made pursuant to this Act may seek judicial review of the decision pursuant to the Administrative Review Law.

Section 55. Investigation; enforcement.

(a) In accordance with constitutional limitations, the Department shall have authority to enter at all reasonable times upon any private or public property for the purpose of inspecting and investigating to ascertain possible violations of this Act or of rules adopted hereunder, or of permits or terms or conditions thereof.

(b) The civil penalties provided for in this Section may be recovered in a civil action which may be instituted in a court of competent jurisdiction. The State's Attorney of the county in which the alleged violation occurred, or the Attorney General, may, at the request of the Department or on his or her own motion, institute a civil action in a court of competent jurisdiction to recover civil penalties and to obtain an injunction to restrain violations of the Act.

(c) Any person who violates any provision of this Act or any rule adopted hereunder, or any permit or term or condition thereof, shall be liable for a civil penalty of not to exceed $10,000 per day of violation; such penalties may be made payable to the Wetlands Protection Fund and shall be deposited into that Fund as provided in subsection (j). In determining the appropriate civil penalty to be imposed under this Section, the Court is authorized to consider any matters of record in mitigation or aggravation of penalty, including but not limited to the following factors:

(1) The duration and gravity of the violation.

(2) The presence or absence of due diligence on the part of the violator in attempting to comply with requirements of this Act and rules adopted hereunder or to secure relief therefrom as provided by this Act.

(3) Any economic benefits accrued by the violator through the violation.

(4) The amount of monetary penalty which will serve to deter further violations by the violator and to otherwise aid in enhancing voluntary compliance with this Act by the violator and other persons similarly subject to this Act.

(5) The number, proximity in time, and gravity of previously adjudicated violations of this Act by the violator.

(d) Any violation of any provision of this Act or any rule adopted hereunder, or any permit or term or condition thereof, shall not be deemed a criminal offense.

(e) All final orders imposing civil penalties pursuant to this Section shall prescribe the time for payment of such penalties. If any such penalty is not paid within the time prescribed, interest on such penalty at the rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act shall be paid for the period from the date payment is due until the date payment is received. However, if the time for payment is stayed during the pendency of an appeal, interest shall not accrue during such stay.

(f) The Department may terminate a permit if the holder substantially violates any condition of the permit, obtains a permit by misrepresentation, or fails to disclose relevant facts.

(g) The Attorney General, or the State's Attorney of the county where the affected wetland is located, may, upon his or her own motion or upon request of the Department, institute a civil action in circuit court for an injunction or other appropriate legal action to restrain a violation of this Act or of any rule adopted under this Act. In the proceeding the court shall determine whether a violation has been committed or is likely to occur, and shall enter any order it considers necessary to remove the effects of the violation and to prevent the violation from occurring, continuing, or being renewed in the future. An order may include a requirement that the violator restore the affected wetland area, including a provision that, if the violator does not comply by restoring the wetland within a reasonable time, the Department may restore the wetland to its condition prior to the violation and the violator shall be liable to the Department for the cost of restoration.

(h) Any penalty assessed pursuant to this Act, including costs of wetland restoration and any restoration requirement, shall be recorded by the clerk of the court as a lien against the land and shall not be removed until the penalty is paid or the restoration is completed.

(i) All costs, fees, and expenses in connection with an enforcement or restoration action shall be assessed as damages against the violator.

(j) All penalties collected under this Section shall be deposited into the Wetlands Protection Fund.

(k) Enforcement actions under this Section may be concurrent or separate.

Section 60. Fees.

(a) Within 90 days after the effective date of this Act the Department shall propose to the Illinois Pollution Control Board, and within 6 months of receiving that proposal the Board shall adopt by rule:

(1) a minimal processing fee for notification regarding Class III Wetlands and for processing a notice of intent to proceed under a general permit; and

(2) a schedule of permit fees for single regulated activities in Class IA, Class IB, and Class II wetlands.

(b) These fees shall be set at levels that allow the wetlands program to operate financially on a self-sustaining basis. The Department shall annually review the fees to determine whether the wetlands program is operating financially on a self-sustaining basis, and it may propose any necessary changes in the fees to the Illinois Pollution Control Board.

Section 65. County authority.

(a) Nothing in this Act preempts or denies the right of any governmental body with a stormwater management program under Section 5-1062 of the Counties Code to control or regulate activities in any wetlands within the jurisdiction of the governmental body.

(b) Upon the request of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code, the Director shall, within 30 calendar days of receiving the request, provide a letter recognizing whether the governmental body's stormwater management program:

(1) provides wetlands protection consistent with the intent of this Act; and

(2) has an administration and qualified staff to implement the governmental body's stormwater management program.

(b-5) After consultation with the Department of Natural Resources, the General Assembly finds and declares that the stormwater management programs implemented by DuPage, Lake, and Kane Counties under Section 5-1062 of the Counties Code, as they exist at the time of the passage of this Act, meet the requirements of subsection (b), and therefore they shall be deemed to have received recognition and approval under that subsection without further action by the Department.

(c) Activities within or affecting wetlands that occur within the jurisdiction of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code that meets the provisions of subdivisions (b)(1) and (b)(2) of this Section are exempt from the requirements of this Act, but must meet those county stormwater management requirements, at a minimum. This exemption also applies during the period that the Department is considering a county's request under subsection (b), but the requirements of this Act do apply until the county has requested recognition under subsection (b), unless the county has received immediate recognition under subsection (b-5) of this Section.

(d) The Director may rescind recognition status in the event that the governmental body with a stormwater management program under Section 5-1062 of the Counties Code no longer meets the provisions of subdivisions (b)(1) and (b)(2) of this Section.

(e) A governmental body with a stormwater management program under Section 5-1062 of the Counties Code that has obtained recognition by the Director under subsection (b) of this Section shall submit an annual report to the Director.

(f) Counties having authority under Section 5-1062 of the Counties Code to adopt a stormwater management program shall seek with the assistance of the Northeastern Illinois Planning Commission to coordinate and unify regulations adopted pursuant thereto.

(g) Nothing in this Act shall be construed as a limitation or preemption of any home rule power.

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

Section 95. The State Finance Act is amended by adding Section 5.640 as follows:

(30 ILCS 105/5.640 new)

Sec. 5.640. The Wetlands Protection Fund.

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