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.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1     AN ACT concerning wetlands.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 1. Short title. This Act may be cited as the
5 Wetlands Protection Act.
 
6     Section 5. Scope. This Act does not apply to property
7 within a municipality with a population greater than 500,000,
8 nor to property within the incorporated or unincorporated area
9 of a county with a population greater than 3,000,000.
 
10     Section 10. Definitions. For the purposes of this Act:
11     (a) "ADID" means those aquatic sites identified by the
12 United States Environmental Protection Agency and the United
13 States Army Corps of Engineers as areas generally unsuitable
14 for disposal of dredged or fill material in accordance with 40
15 C.F.R. Part 230.80.
16     (b) "Affected property" means any property upon which a
17 regulated activity is conducted.
18     (c) "Agency" means the Illinois Environmental Protection
19 Agency.
20     (d) "Agricultural land" means land that is currently used
21 for normal farming or ranching activities.
22     (e) "Avoidance" means any action taken in a manner such
23 that a regulated activity will not occur.
24     (f) "Bog" means a peat-accumulating wetland that has no
25 significant inflows or outflows and supports acidophilic
26 mosses, particularly sphagnum, resulting in highly acidic
27 conditions.
28     (g) "Commencing such a regulated activity" means any steps
29 taken in preparation of conducting a regulated activity that
30 may impact the affected property, such as cutting, filling,
31 pumping of water, and earth movement.

 

 

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1     (h) "Committee" means the Wetlands Advisory Committee.
2     (i) "Contiguous wetland" means a wetland that is delineated
3 on the affected property and extends beyond the boundary of
4 that property.
5     (j) "Converted wetland" means a wetland that has been
6 drained, dredged, filled, leveled, or otherwise manipulated
7 (including the removal of woody vegetation or any activity that
8 results in impairing or reducing the flow and circulation of
9 water) for the purpose of or with the effect of making possible
10 the production of an agricultural commodity without further
11 application of the manipulations described herein if: (i) such
12 production would not have been possible but for such action,
13 and (ii) before such action such land was wetland, farmed
14 wetland, or farmed-wetland pasture and was neither highly
15 erodible land nor highly erodible cropland.
16     (k) "Corps of Engineers" or "COE" means the United States
17 Army Corps of Engineers.
18     (l) "Cypress swamp" means forested, permanent or
19 semi-permanent bodies of water, with species assemblages
20 characteristic of the Gulf and Southeastern Coastal Plains,
21 including bald cypress, which are restricted to extreme
22 southern Illinois.
23     (m) "Department" means the Illinois Department of Natural
24 Resources.
25     (n) "Director" means the Director of Natural Resources.
26     (o) "Fen" means a wetland fed by an alkaline water source
27 such as a calcareous spring or seep.
28     (p) "Floristic quality index" means an index calculated
29 using the Floristic Quality Assessment Method of assessing
30 floristic integrity (or quality) by summing the numerical
31 quality ratings of all plant species present then dividing the
32 total by the number of native species present (mean coefficient
33 of conservatism) or by the square root of the number of native
34 species (floristic quality index). (Taft, J.B., G.S. Wilhelm,
35 D.M. Ladd, and L.A. Masters. 1997. Floristic quality assessment
36 for vegetation in Illinois, a method for assessing vegetation

 

 

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1 integrity. Erigenia 15: 3-95.)
2     (q) "Incidentally created" means created as a result of any
3 normal or routine activity coincidental with the conduct of
4 legitimate business enterprises, except that a wetland or
5 depression created as mitigation for any activity affecting
6 wetlands is not "incidentally created."
7     (r) "Incidental fallback" means the redeposit of small
8 volumes of dredged material that is incidental to excavation
9 activity in waters of the State when such material falls back
10 to substantially the same place as the initial removal.
11     (s) "Isolated wetlands" means those areas that are
12 inundated or saturated by surface or ground water at a
13 frequency or duration sufficient to support, and that under
14 normal circumstances do support, a prevalence of vegetation
15 typically adapted for life in saturated soil conditions, and
16 that are not regulated under the federal Clean Water Act.
17     (t) "Panne" means wet interdunal flats located near Lake
18 Michigan.
19     (u) "Person" means an individual, partnership,
20 co-partnership, firm, company, limited liability company,
21 corporation, association, joint stock company, trust, estate,
22 political subdivision, State agency, or other legal entity, or
23 its legal representative, agent, or assigns.
24     (v) "Prior converted cropland" means a converted wetland
25 where the conversion occurred prior to December 23, 1985, an
26 agricultural commodity has been produced at least once before
27 December 23, 1985, and as of December 23, 1985, the converted
28 wetland did not support woody vegetation and met the following
29 hydrologic criteria: (i) inundation was less than 15
30 consecutive days during the growing season or 10% of the
31 growing season, whichever is less, in most years (50% chance or
32 more); and (ii) if a pothole, ponding was less than 7
33 consecutive days during the growing season in most years (50%
34 chance or more) and saturation was less than 14 consecutive
35 days during the growing season most years (50% chance or more).
36     (w) "Regulated activity" means the discharge of dredged or

 

 

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1 fill material into a wetland, the drainage of a wetland, or
2 excavation of a wetland that results in more than incidental
3 fallback.
4     (x) "Threatened or endangered species" means those species
5 that have been designated as threatened or endangered by the
6 Illinois Endangered Species Protection Board pursuant to the
7 Illinois Endangered Species Protection Act and those species
8 that have been designated as threatened or endangered by the
9 U.S. Fish and Wildlife Service pursuant to the Endangered
10 Species Act.
11     (y) "Upland" means non-wetland, when used to describe a
12 particular land use, or non-hydric, when used to describe a
13 soil type.
14     (z) "Wetlands" means those areas that are inundated or
15 saturated by surface or ground water at a frequency or duration
16 sufficient to support, and that under normal circumstances do
17 support, a prevalence of vegetation typically adapted for life
18 in saturated soil conditions.
 
19     Section 20. Exemptions.
20     (a) As long as they do not have as their purpose bringing a
21 wetland into a use to which it was not previously subject, the
22 following are not prohibited by or otherwise subject to
23 regulation under this Act:
24         (1) Normal farming, silviculture, and ranching
25     activities such as plowing, seeding, cultivating, minor
26     drainage, harvesting for the production of food, fiber, and
27     forest products, or upland soil and water conservation
28     practices.
29         (2) Maintenance, including emergency reconstruction of
30     recently damaged parts, of currently serviceable
31     structures such as dikes, dams, levees, groins, riprap,
32     breakwaters, causeways, and bridge abutments or
33     approaches, and transportation structures.
34         (3) Construction or maintenance of farm or stock ponds
35     or irrigation canals or ditches, or the maintenance of

 

 

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1     drainage ditches.
2         (4) Construction of temporary sedimentation basins on
3     a construction site that does not include any regulated
4     activities within a wetland.
5         (5) Construction or maintenance of farm roads or forest
6     roads, or temporary roads for moving mining equipment,
7     where such roads are constructed and maintained, in
8     accordance with best management practices, to assure that
9     flow and circulation patterns and chemical and biological
10     characteristics of the wetland are not impaired, that the
11     reach of the wetland is not reduced, and that any adverse
12     effect on the aquatic environment will be otherwise
13     minimized.
14         (6) Except for Class IA and Class IB wetlands,
15     activities for the placement of pilings for linear
16     projects, such as bridges, elevated walkways, and power
17     line structures in accordance with best management
18     practices, to assure that the flow and circulation patterns
19     and chemical and biological characteristics of the wetland
20     are not impaired, that the reach of the wetland is not
21     reduced, and that any adverse effect on the aquatic
22     environment will be otherwise minimized.
23         (7) Installation and maintenance of signs, lighting,
24     and fences and the mowing of vegetation within existing
25     maintained rights-of-way.
26         (8) Repair and maintenance of existing buildings,
27     facilities, lawns, and ornamental plantings.
28         (9) Construction projects that have obtained any
29     necessary building permits from applicable local
30     jurisdictions prior to the effective date of this Act.
31         (10) Application of media, including deicing media, on
32     the surface of existing roads for purposes of public
33     safety.
34         (11) Non-surface disturbing surveys and investigations
35     for construction, planning, maintenance, or location of
36     environmental resources.

 

 

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1         (12) Wetland management practices on lands that are
2     used primarily for the management of waterfowl, other
3     migratory water birds, or furbearers if such practices took
4     place on these lands prior to the effective date of this
5     Act. This includes vegetation management that may include
6     the use of fire, chemical, or mechanical (hydro-axe,
7     bulldozer, rome disk, or similar equipment) removal of
8     invading woody or herbaceous vegetation to maintain a
9     preferred successional stage. Use of chemicals must be by a
10     certified applicator and chemicals must be registered for
11     appropriate use. Clearing or removal of woody vegetation
12     shall be limited to 4-inch dbh (diameter at breast height)
13     or smaller material for the purpose of establishing or
14     maintaining the successional stage of a wetland as an
15     herbaceous wetland vegetated by native moist soil plants or
16     selected wildlife food plants.
17     (b) Any exemption authorized by and pertaining to wetlands
18 that are subject to regulation under the federal Clean Water
19 Act, or regulations promulgated thereunder, shall also be an
20 exemption for the purpose of this Act.
21     (c) The following are not isolated wetlands for purposes of
22 this Act:
23         (1) Waste treatment systems, including treatment ponds
24     or lagoons, designed to comply with water quality standards
25     of the State or to remediate a site in accordance with an
26     approved Agency program, and former waste treatment
27     systems that have ceased operation less than 33 years prior
28     to commencement of the proposed activity or which are
29     undergoing remediation in accordance with an approved
30     Agency program.
31         (2) A drainage or irrigation ditch.
32         (3) An artificially irrigated area that would revert to
33     upland if the irrigation ceased.
34         (4) An artificial lake or pond created by excavating or
35     diking upland to collect and retain water for the primary
36     purpose of stock watering, irrigation, wildlife, fire

 

 

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1     control, ornamentation or landscaping, or as a settling
2     pond.
3         (5) Except for isolated wetlands created pursuant to
4     mining activities regulated in accordance with item (7)
5     below, an incidentally created water-filled depression,
6     unless: (i) ownership of the property containing the
7     depression has been transferred away from the party who
8     incidentally created the water-filled depression, (ii)
9     that ownership transfer occurred more than 12 months prior
10     to the commencement of an otherwise regulated activity,
11     (iii) the use of the property has changed from the use that
12     existed when the property was transferred from the party
13     who incidentally created the water-filled depression, and
14     (iv) the resulting body of water meets the definition in
15     this Act of an isolated wetland; or if the ownership of the
16     property has not been transferred from the party who
17     created the incidentally created water-filled depression,
18     the depression was not created more than 33 years before
19     the date the application is received by the Department.
20         (6) Stormwater or spill management systems, including
21     retention and detention basins, ditches and channels, and
22     former stormwater or spill management systems that have
23     ceased operation less than 33 years prior to commencement
24     of the proposed activity or which are undergoing
25     remediation in accordance with an approved Agency program.
26         (7) Waters that undergo mining activities conducted
27     pursuant to a federal, State, regional, or local permit
28     that requires the reclamation of the affected wetlands if
29     the reclamation will be completed within a reasonable
30     period of time after completion of activities at the site
31     and, upon completion of such reclamation, the wetlands will
32     support functions generally equivalent to the functions
33     supported by the wetlands at the time of commencement of
34     such activities.
35         (8) Prior converted cropland.
36     (d) Any activity covered by the Interagency Wetland Policy

 

 

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1 Act of 1989 is exempt from all of the provisions of this Act.
 
2     Section 25. Applicability. Until June 30, 2008, the
3 requirements of this Act apply to all isolated wetlands as that
4 term is defined in this Act. In the event that an isolated
5 wetland ceases to meet that definition because it becomes
6 subject to regulation under the federal Clean Water Act, such
7 wetland shall no longer be subject to the provisions of this
8 Act.
9     Beginning July 1, 2008, the requirements of this Act apply
10 to all wetlands as that term is defined in this Act, unless a
11 COE permit is required; provided, however, that if an exemption
12 under Section 20 applies, that exemption shall continue in
13 effect after July 1, 2008.
14     The Department on behalf of the State of Illinois may enter
15 into written delegation agreements with the Corps of Engineers
16 under which it may assume all or portions of COE authority
17 under the federal Clean Water Act. Such delegation agreements
18 shall provide, at a minimum, that all delineation,
19 classification, notification, and permitting requirements
20 shall be at least as stringent as those contained in this Act.
 
21     Section 30. Wetlands delineation, classification,
22 notification, permits. The requirements of this Section apply
23 upon the adoption of rules under Sections 45(c) and 60 of this
24 Act, or 270 days from the effective date of this Act, whichever
25 occurs first.
26     (a) The procedures and regulatory criteria for the
27 delineation, classification, notification, and permitting for
28 wetlands shall be conducted in accordance with the provisions
29 of this Section.
30     (b) Any person who intends to conduct a regulated activity
31 within the State may request a determination from the
32 Department as to the existence, location, and surface area of
33 any wetlands on or contiguous to the affected property. Nothing
34 in this Section shall require the person to seek such a

 

 

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1 determination; however, failure to seek and obtain a
2 determination shall not be a defense against a violation of
3 this Act.
4     The person seeking a determination shall provide the
5 Department with sufficient information to render such a
6 determination. Such information shall include a wetland
7 delineation made in accordance with the COE Wetlands
8 Delineation Manual, Technical Report Y-87-1. Delineation of
9 the portion of a contiguous wetland not on the affected
10 property shall be made to the extent reasonably possible, and
11 methods other than physical onsite evaluations shall be
12 considered by the Department.
13     The Department shall provide notice to the applicant as to
14 whether a submitted application is complete. Unless the
15 Department notifies the applicant that the application is
16 incomplete within 15 days of receipt of the application, the
17 application shall be deemed complete. The Department may
18 request additional information as needed to make the
19 completeness determination.
20     The Department shall, upon receipt of a complete
21 determination request, provide the person, within 30 days, with
22 a determination as to the existence, location, and surface area
23 of wetlands located on or contiguous to the affected property.
24     If the Department determines that there are no wetlands on
25 the affected property, any otherwise regulated activity
26 conducted on the property shall not be subject to the
27 provisions of this Act.
28     If the Department determines that there is one or more
29 wetlands on or contiguous to the affected property, the person
30 may apply to the Department for classification of such
31 wetlands.
32     Any determination of a wetland by the Department is a final
33 decision for purposes of appeal.
34     (c) If any person intends to conduct a regulated activity,
35 such person may, prior to commencing such a regulated activity,
36 request that the wetland be classified as Class IA, IB, II, or

 

 

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1 III in accordance with the provisions of this Section. Nothing
2 in this Section shall require the person to seek such a
3 classification; however, any wetlands not so classified shall
4 be considered Class IA for the purposes of this Act.
5     The person seeking a classification shall provide the
6 Department with sufficient information to render such a
7 classification. Such information shall include a wetland
8 delineation made in accordance with the COE Wetlands
9 Delineation Manual, Technical Report Y-87-1.
10     Unless the Department notifies the applicant that the
11 application is incomplete within 15 days of receipt of the
12 application, the application shall be deemed complete. The
13 Department may request additional information as needed to make
14 the completeness determination. The Department shall, upon
15 receipt of a complete classification request, provide the
16 person, within 30 days, with a classification of wetlands
17 located on or contiguous to the affected property. If the
18 Department fails to provide the person with a classification
19 within 30 days, the classification requested by the person
20 shall be deemed granted.
21     Wetlands shall be classified as follows:
22         (1) The Department shall classify a wetland as a Class
23     IA Wetland if and only if:
24             (A) the wetland is or encompasses a bog;
25             (B) the wetland is or encompasses a fen;
26             (C) the wetland is or encompasses a panne;
27             (D) the wetland is or encompasses a cypress swamp;
28             (E) the wetland is or encompasses a Category I
29         Illinois Natural Areas Inventory Site, provided that
30         the Department shall disclose within 5 working days of
31         a request from an applicant, a prospective applicant,
32         or a qualified professional on behalf of an applicant
33         or a prospective applicant whether a site identified by
34         latitude and longitude includes a Category I Illinois
35         Natural Areas Inventory Site; or
36             (F) a threatened or endangered species has been

 

 

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1         identified in the wetland.
2           (2) The Department shall classify a wetland as a
3     Class IB Wetland if and only if the wetland:
4             (A) is or encompasses an ADID site;
5             (B) is or encompasses a Category VI Illinois
6         Natural Area Inventory Site or regional equivalent;
7         provided that the Department shall disclose within 5
8         working days of a request from an applicant, a
9         prospective applicant, or a qualified professional on
10         behalf of an applicant or a prospective applicant
11         whether a site identified by latitude and longitude
12         includes a Category VI Illinois Natural Areas
13         Inventory Site; or
14             (C) has a Floristic Quality Index (FQI) which is
15         equal to or greater than 20 or a mean coefficient of
16         conservatism (Mean C) equal to or greater than 3.5,
17         determined in accordance with rules adopted by the
18         Department.
19           (3) The Department shall classify a wetland as a
20     Class II Wetland if and only if the wetland is not a Class
21     I-A, Class I-B, or Class III wetland.
22           (4) The Department shall classify a wetland as a
23     Class III Wetland if and only if:
24               (A) the wetland is not a Class IA or Class IB
25         wetland; and
26               (B) the total size of the wetland, including
27         contiguous areas, is
28                 (i) less than 0.25 acre, or
29                 (ii) less than 0.5 acre if the wetland is in a
30             county that does not have authority to establish a
31             stormwater management program under Section 5-1062
32             of the Counties Code and the wetland is in
33             agricultural land.
34     (d) Subject to the provisions of Section 40 regarding
35 general permits, no person may conduct or cause to be conducted
36 a regulated activity within or affecting a wetland in such a

 

 

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1 manner that the biological or hydrological integrity of the
2 wetland is impaired within the scope of this Act, except in
3 accordance with the terms of an individual permit issued by the
4 Department or authorization to proceed as applicable under this
5 Section.
6     (1) Class IA Wetlands:
7             (A) A permit to conduct a regulated activity
8         affecting a Class IA wetland within the scope of this
9         Act shall be granted if documentation is submitted that
10         demonstrates that complete avoidance of impacts to the
11         Class IA wetland precludes all economic use of the
12         entire parcel and that no practicable alternative to
13         wetland modification exists.
14             Based upon a review of the submitted documentation
15         and any other available resources, the Department
16         shall make a determination as to whether the proposed
17         modification represents the least amount of wetland
18         impact required to restore an economic use to the
19         upland portion of the parcel.
20             Wetland losses shall be mitigated at a ratio of
21         4.5:1 and shall be mitigated in kind and within the
22         same watershed as the impacted area restoring, to the
23         maximum degree practicable as determined by the
24         Department, both the type and functions of the wetland
25         that will be affected by the regulatory activity.
26             The Director, for good cause shown and on a
27         case-by-case basis, may authorize an upward or
28         downward departure from the mitigation ratio otherwise
29         required under this subdivision (d)(1), but for a Class
30         IA wetland the Director shall require a mitigation
31         ration of at least 4:1 and shall not require a
32         mitigation ratio greater than 5:1.
33             (B) No permit under this subdivision (d)(1) may be
34         issued by the Department without a public notice and a
35         public hearing.
36     (2) Class IB Wetlands:

 

 

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1             (A) A permit to conduct a regulated activity
2         affecting a Class IB wetland within the scope of this
3         Act shall be granted if documentation is submitted that
4         demonstrates that no practicable alternative to
5         wetland modification exists.
6             Based upon a review of the submitted documentation
7         and any other available resources, the Department
8         shall make a determination as to whether the proposed
9         modification constitutes the least amount of wetland
10         impact practicable and whether a permit should be
11         granted.
12             Wetland losses shall be mitigated at a ratio of 3:1
13         and shall be mitigated in kind and within the same
14         watershed as the impacted area, restoring both the type
15         and functions of the wetlands that will be affected by
16         the regulated activity.
17             The Director, for good cause shown and on a
18         case-by-case basis, may authorize an upward or
19         downward departure from the mitigation ratio otherwise
20         required under this subdivision (d)(2), but for a Class
21         IB wetland the Director shall require a mitigation
22         ration of at least 2.5:1 and shall not require a
23         mitigation ratio greater than 3.5:1.
24             (B) No permit under this subdivision (d)(2) may be
25         issued by the Department without a public notice and
26         opportunity for public hearing being afforded. The
27         Department shall hold a public hearing concerning a
28         permit application if the proposed activity may have a
29         significant impact upon wetland resources or if the
30         Department determines that a public hearing is
31         otherwise appropriate.
32     (3) Class II Wetlands:
33             (A) A permit to conduct a regulated activity
34         affecting a Class II wetland within the scope of this
35         Act shall be granted if documentation is submitted
36         demonstrating that no reasonable alternative to

 

 

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1         wetland modification exists.
2             Based upon a review of the submitted documentation
3         and any other available resources, the Department
4         shall make a determination as to whether the proposed
5         modification constitutes the least amount of wetland
6         impact practicable and whether a permit should be
7         granted.
8             Wetland losses shall be mitigated at a ratio of
9         1.5:1 and shall be mitigated in kind and within the
10         same watershed as the impacted area, restoring both the
11         type and functions of the wetland that will be affected
12         by the regulated activity.
13             (B) No permit under this subdivision (d)(3) may be
14         issued by the Department without a public notice and
15         opportunity for public hearing being afforded. The
16         Department shall hold a public hearing concerning a
17         permit application if the proposed activity may have a
18         significant impact upon wetland resources or if the
19         Department determines that a public hearing is
20         otherwise appropriate.
21     (4) Class III Wetlands:
22             (A) No regulated activity covered under this Act
23         that will impact an area that has been classified as a
24         Class III wetland may be undertaken without prior
25         notification to the Department.
26             (B) Such notification shall include (1) a sketch
27         that reasonably depicts the area that will be affected
28         by the regulated activity, including wetland and water
29         boundaries for the areas affected and the existing land
30         uses and structures; (2) a description of the proposed
31         activity, including its purpose; (3) a description of
32         any public benefit to be derived from the proposed
33         project; and (4) the names and addresses of adjacent
34         landowners as determined by the current tax assessment
35         rolls.
36             (C) Upon receipt of a notification of intent, the

 

 

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1         Department shall verify that the regulated activity
2         will affect a wetland that it previously classified as
3         Class III.
4             If the Department so verifies, the Department
5         shall send the person, within 30 days of the receipt of
6         such notification, a response stating that the
7         regulated activity may proceed.
8             If the Department cannot so verify, the Department
9         shall send the person, within 30 days of the receipt of
10         such notification, a response stating that no
11         classification has been made by the Department, or that
12         a Classification of IA, IB, or II was made and that the
13         regulated activity may not proceed until either a
14         classification is made pursuant to this Section, or a
15         permit is obtained, as applicable.
16             Failure of the Department to respond to a
17         notification shall be deemed an authorization to
18         proceed.
19             (D) No permit shall be required for a regulated
20         activity covered under this Act that will impact an
21         area that has been classified as a Class III wetland.
22     (e) Within 15 days of the receipt of a permit application,
23 the Department shall determine if an application is complete.
24 To be deemed complete, an application must provide all
25 information, as requested in Department application forms,
26 sufficient to evaluate the application. Such information shall
27 include, at a minimum: (1) a map of the area that will be
28 affected by the activity, including wetland and water
29 boundaries for the areas affected and the existing uses and
30 structures. Such information shall include a wetland
31 delineation made in accordance with the COE Wetlands
32 Delineation Manual, Technical Report Y-87-1; (2) a description
33 of the proposed activity, including its purpose, the location
34 and dimensions of any structures, grading or fills, drainage,
35 roads, sewers and water supply, parking lots, stormwater
36 facilities, discharge of pollutants, and onsite waste

 

 

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1 disposal; (3) a description of any public benefit to be derived
2 from the proposed project; and (4) the names and addresses of
3 adjacent landowners as determined by the current tax assessment
4 rolls. The Department application forms shall be finalized and
5 made available prior to the date on which any application is
6 required. The Department shall provide notice to the applicant
7 as to whether a submitted application is complete. Unless the
8 Department notifies the applicant that the application is
9 incomplete within 20 days of receipt of the application, the
10 application shall be deemed complete. The Department may
11 request additional information as needed to make the
12 completeness determination. The Department may, to the extent
13 practicable, provide the applicant with a reasonable
14 opportunity to correct deficiencies prior to a final
15 determination of completeness. Within 90 days from the receipt
16 of a complete application for permit, the Department shall
17 either issue or deny the permit or issue it with conditions. If
18 a public hearing is held on the application, however, this
19 period shall be extended by 45 days.
20     (f) The Department shall not issue a permit pursuant to
21 this Section unless the Agency has certified that the proposed
22 activity will not cause or contribute to a violation of any
23 State water quality standard. The Agency will be deemed to have
24 certified that the proposed activity will not cause or
25 contribute to a violation of any State water quality standard
26 if it has not declined in writing to so certify within 80 days
27 of the filing of the application unless the Agency has
28 requested that the applicant supply more information relevant
29 to assessing the water quality impacts of the proposed
30 activity. If a public hearing is held on the application,
31 however, this period shall be extended by 45 days.
32     (g) A person may submit concurrent requests for (i)
33 determination and delineation, (ii) classification, and (iii)
34 issuance of a permit or notification. The Department shall act
35 on such combined requests concurrently in accordance with
36 expedited permitting procedures adopted by the Department.

 

 

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1     (h) Any person may submit an application for an
2 after-the-fact permit to be issued under this Act, and the
3 Department is authorized to issue such an after-the-fact permit
4 if it determines that the activities covered by the
5 after-the-fact permit application were undertaken and
6 conducted in response to emergency circumstances where there
7 may be an imminent threat to persons, public infrastructure,
8 personal property, or uninterrupted utility service that made
9 it impracticable for the applicant to obtain prior
10 authorization under this Act to undertake and conduct such
11 activities. The applicant shall be required to demonstrate that
12 it provided notice to the Department of the emergency
13 circumstances as soon as reasonably possible following the
14 discovery of such circumstances.
15     (i) The Department shall adopt rules to carry out the
16 provisions of this Section in accordance with Section 45 of
17 this Act.
 
18     Section 35. Surety. The Department may provide by rule for
19 any requirements regarding bonds or letters of credit in favor
20 of the State, including conditions sufficient to secure
21 compliance with conditions and limitations of a permit.
 
22     Section 40. General permits.
23     (a) Notwithstanding Section 30, any person who intends to
24 conduct a regulated activity within the State may do so in
25 accordance with a general permit issued by the Department under
26 this Section.
27     (b) Permits for all categories of activities, subject to
28 the same permit limitations and conditions, that are the
29 subject of a nationwide permit issued by the Corps of Engineers
30 in effect on the date of the enactment of this Act, are adopted
31 as general permits covering regulated activities subject to
32 this Act.
33     (c) The Department may adopt general permits covering other
34 activities that would be subject to the same permit limitations

 

 

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1 and conditions, if it determines that the activities in such
2 category will cause only minimal adverse environmental effects
3 when performed separately, will have only minimal cumulative
4 adverse effect on the environment, will not cause or contribute
5 to a violation of State water quality standards when performed
6 separately, and will have only a minimal cumulative adverse
7 effect on water quality. The Department may prescribe best
8 management practices for any general permit issued under this
9 Section. The Department shall consider any optional mitigation
10 proposed by an applicant in determining whether the net adverse
11 environmental effects of a proposed regulated activity are
12 minimal.
13     Specifically, the Department must adopt general permits
14 for each of the following:
15         (1) The construction or maintenance of access roads for
16     utility lines, substations or related equipment or
17     facilities.
18         (2) Activities for the purpose of preserving and
19     enhancing aviation safety or to prevent an airport hazard.
20     (d) No general permit adopted under this Section shall be
21 for a period of more than 5 years after the date of its
22 issuance. A general permit may be revoked or modified by the
23 Department if, after opportunity for public hearing, the
24 Department determines that the activities authorized by the
25 general permit have an adverse impact on the environment, cause
26 or contribute to a violation of State water quality standards,
27 or are more appropriately authorized by individual permits.
28     (e) Compliance with the terms of a general permit shall be
29 deemed compliance with the provisions of this Act if the
30 applicant (i) files a notice of intent to be covered under the
31 provisions of the general permit in accordance with regulations
32 adopted pursuant to this Act and (ii) files any reports
33 required by the general permit.
34     (f) The Department shall respond to a notice of intent to
35 proceed under a general permit issued under this Section within
36 30 days after the Department receives the notice. In the event

 

 

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1 that the Department fails to respond to a notice of intent to
2 proceed within 30 days as required by this subsection (f), the
3 person submitting the notice shall be deemed fully authorized
4 to conduct the activities described in the notice under the
5 terms and conditions of the applicable general permit.
 
6     Section 45. Wetlands Advisory Committee; duties; rules
7     (a) There is hereby established a Wetlands Advisory
8 Committee, which shall consist of 17 members appointed by the
9 Governor and 2 non-voting members.
10     The Committee shall include 5 members representing the
11 interests of business, industry, real estate, and agriculture.
12     The Committee shall include 5 members selected from the
13 membership of environmental and conservation groups in the
14 State.
15     The Committee shall include 2 members representing
16 counties exercising authority under Section 5-1062 or 5-1062.1
17 of the Counties Code to establish stormwater management
18 programs.
19     The Committee shall include one member representing
20 municipalities.
21     The Committee shall include one member representing
22 building trades unions.
23     The Committee shall include 3 other members as determined
24 by the Governor.
25     The Director of Natural Resources, or his or her designee,
26 and the Director of the Illinois Environmental Protection
27 Agency, or his or her designee, shall be non-voting members of
28 the Committee.
29     The Committee shall biannually elect from its membership a
30 Chair, who shall not be an employee of the Illinois
31 Environmental Protection Agency or the Illinois Department of
32 Natural Resources.
33     Members of the Advisory Committee may organize themselves
34 as they deem necessary and shall serve without compensation.
35     The Department shall provide reasonable and necessary

 

 

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1 staff support to the Committee.
2     (b) Within 120 days after the effective date of this Act,
3 the Committee shall recommend rules to the Department. From
4 time to time the Committee shall review, evaluate, and make
5 recommendations (i) regarding State laws, rules, and
6 procedures that relate to this Act and (ii) relating to the
7 State's efforts to implement this Act.
8     (c) Within 6 months after the effective date of this Act,
9 the Department, after consideration of the recommendations of
10 the Committee (or if the Committee for any reason has not made
11 recommendations, the Department itself), shall adopt any rules
12 required by this Act prescribing procedures and standards for
13 its administration. Nothing in this Act shall preclude, at any
14 time, the recommendation, proposal, or adoption of any other
15 rules deemed necessary for the orderly implementation of this
16 Act.
17     (d) The Committee shall develop a plan for statewide
18 wetlands protection and shall submit such plan to the
19 Department. The Department may seek to obtain a delegation of
20 COE authority under Section 404 of the federal Clean Water Act
21 for all wetlands in Illinois on or before July 1, 2008 in
22 accordance with Section 25 of this Act.
23     (e) The Committee shall assist counties having stormwater
24 management authority under Section 5-1062 or 5-1062.1 of the
25 Counties Code in coordinating and unifying stormwater
26 management regulations adopted thereto, as required in Section
27 65(f) of this Act.
 
28     Section 50. Appeal of final Department decision; judicial
29 review.
30     (a) Any permit applicant who has been denied a permit in
31 whole or in part, and any person who participated in the permit
32 proceeding and who is aggrieved by a decision of the Department
33 to grant a permit in whole or in part, may appeal the decision
34 to the Director within 35 days of the permit grant or denial.
35 However, the 35-day period for appealing to the Director may be

 

 

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1 extended by the applicant for a period of time not to exceed 90
2 days by written notice provided to the Director. In all such
3 appeals, the burden of persuasion shall be on the party
4 appealing the Department's decision.
5     (b) A person aggrieved by a final decision made pursuant to
6 this Act may seek judicial review of the decision pursuant to
7 the Administrative Review Law.
 
8     Section 55. Investigation; enforcement.
9     (a) In accordance with constitutional limitations, the
10 Department shall have authority to enter at all reasonable
11 times upon any private or public property for the purpose of
12 inspecting and investigating to ascertain possible violations
13 of this Act or of rules adopted hereunder, or of permits or
14 terms or conditions thereof.
15     (b) The civil penalties provided for in this Section may be
16 recovered in a civil action which may be instituted in a court
17 of competent jurisdiction. The State's Attorney of the county
18 in which the alleged violation occurred, or the Attorney
19 General, may, at the request of the Department or on his or her
20 own motion, institute a civil action in a court of competent
21 jurisdiction to recover civil penalties and to obtain an
22 injunction to restrain violations of the Act.
23     (c) Any person who violates any provision of this Act or
24 any rule adopted hereunder, or any permit or term or condition
25 thereof, shall be liable for a civil penalty of not to exceed
26 $10,000 per day of violation; such penalties may be made
27 payable to the Wetlands Protection Fund and shall be deposited
28 into that Fund as provided in subsection (j). In determining
29 the appropriate civil penalty to be imposed under this Section,
30 the Court is authorized to consider any matters of record in
31 mitigation or aggravation of penalty, including but not limited
32 to the following factors:
33         (1) The duration and gravity of the violation.
34         (2) The presence or absence of due diligence on the
35     part of the violator in attempting to comply with

 

 

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1     requirements of this Act and rules adopted hereunder or to
2     secure relief therefrom as provided by this Act.
3         (3) Any economic benefits accrued by the violator
4     through the violation.
5         (4) The amount of monetary penalty which will serve to
6     deter further violations by the violator and to otherwise
7     aid in enhancing voluntary compliance with this Act by the
8     violator and other persons similarly subject to this Act.
9         (5) The number, proximity in time, and gravity of
10     previously adjudicated violations of this Act by the
11     violator.
12     (d) Any violation of any provision of this Act or any rule
13 adopted hereunder, or any permit or term or condition thereof,
14 shall not be deemed a criminal offense.
15     (e) All final orders imposing civil penalties pursuant to
16 this Section shall prescribe the time for payment of such
17 penalties. If any such penalty is not paid within the time
18 prescribed, interest on such penalty at the rate set forth in
19 subsection (a) of Section 1003 of the Illinois Income Tax Act
20 shall be paid for the period from the date payment is due until
21 the date payment is received. However, if the time for payment
22 is stayed during the pendency of an appeal, interest shall not
23 accrue during such stay.
24     (f) The Department may terminate a permit if the holder
25 substantially violates any condition of the permit, obtains a
26 permit by misrepresentation, or fails to disclose relevant
27 facts.
28     (g) The Attorney General, or the State's Attorney of the
29 county where the affected wetland is located, may, upon his or
30 her own motion or upon request of the Department, institute a
31 civil action in circuit court for an injunction or other
32 appropriate legal action to restrain a violation of this Act or
33 of any rule adopted under this Act. In the proceeding the court
34 shall determine whether a violation has been committed or is
35 likely to occur, and shall enter any order it considers
36 necessary to remove the effects of the violation and to prevent

 

 

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1 the violation from occurring, continuing, or being renewed in
2 the future. An order may include a requirement that the
3 violator restore the affected wetland area, including a
4 provision that, if the violator does not comply by restoring
5 the wetland within a reasonable time, the Department may
6 restore the wetland to its condition prior to the violation and
7 the violator shall be liable to the Department for the cost of
8 restoration.
9     (h) Any penalty assessed pursuant to this Act, including
10 costs of wetland restoration and any restoration requirement,
11 shall be recorded by the clerk of the court as a lien against
12 the land and shall not be removed until the penalty is paid or
13 the restoration is completed.
14     (i) All costs, fees, and expenses in connection with an
15 enforcement or restoration action shall be assessed as damages
16 against the violator.
17     (j) All penalties collected under this Section shall be
18 deposited into the Wetlands Protection Fund.
19     (k) Enforcement actions under this Section may be
20 concurrent or separate.
 
21     Section 60. Fees.
22     (a) Within 90 days after the effective date of this Act the
23 Department shall propose to the Illinois Pollution Control
24 Board, and within 6 months of receiving that proposal the Board
25 shall adopt by rule:
26         (1) a minimal processing fee for notification
27     regarding Class III Wetlands and for processing a notice of
28     intent to proceed under a general permit; and
29         (2) a schedule of permit fees for single regulated
30     activities in Class IA, Class IB, and Class II wetlands.
31     (b) These fees shall be set at levels that allow the
32 wetlands program to operate financially on a self-sustaining
33 basis. The Department shall annually review the fees to
34 determine whether the wetlands program is operating
35 financially on a self-sustaining basis, and it may propose any

 

 

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1 necessary changes in the fees to the Illinois Pollution Control
2 Board.
 
3     Section 65. County authority.
4     (a) Nothing in this Act preempts or denies the right of any
5 governmental body with a stormwater management program under
6 Section 5-1062 of the Counties Code to control or regulate
7 activities in any wetlands within the jurisdiction of the
8 governmental body.
9     (b) Upon the request of a governmental body with a
10 stormwater management program under Section 5-1062 of the
11 Counties Code, the Director shall, within 30 calendar days of
12 receiving the request, provide a letter recognizing whether the
13 governmental body's stormwater management program:
14         (1) provides wetlands protection consistent with the
15     intent of this Act; and
16         (2) has an administration and qualified staff to
17     implement the governmental body's stormwater management
18     program.
19     (b-5) After consultation with the Department of Natural
20 Resources, the General Assembly finds and declares that the
21 stormwater management programs implemented by DuPage, Lake,
22 and Kane Counties under Section 5-1062 of the Counties Code, as
23 they exist at the time of the passage of this Act, meet the
24 requirements of subsection (b), and therefore they shall be
25 deemed to have received recognition and approval under that
26 subsection without further action by the Department.
27     (c) Activities within or affecting wetlands that occur
28 within the jurisdiction of a governmental body with a
29 stormwater management program under Section 5-1062 of the
30 Counties Code that meets the provisions of subdivisions (b)(1)
31 and (b)(2) of this Section are exempt from the requirements of
32 this Act, but must meet those county stormwater management
33 requirements, at a minimum. This exemption also applies during
34 the period that the Department is considering a county's
35 request under subsection (b), but the requirements of this Act

 

 

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1 do apply until the county has requested recognition under
2 subsection (b), unless the county has received immediate
3 recognition under subsection (b-5) of this Section.
4     (d) The Director may rescind recognition status in the
5 event that the governmental body with a stormwater management
6 program under Section 5-1062 of the Counties Code no longer
7 meets the provisions of subdivisions (b)(1) and (b)(2) of this
8 Section.
9     (e) A governmental body with a stormwater management
10 program under Section 5-1062 of the Counties Code that has
11 obtained recognition by the Director under subsection (b) of
12 this Section shall submit an annual report to the Director.
13     (f) Counties having authority under Section 5-1062 of the
14 Counties Code to adopt a stormwater management program shall
15 seek with the assistance of the Northeastern Illinois Planning
16 Commission to coordinate and unify regulations adopted
17 pursuant thereto.
18     (g) Nothing in this Act shall be construed as a limitation
19 or preemption of any home rule power.
 
20     Section 70. Wetlands Protection Fund. All fees and
21 penalties collected by the Department pursuant to this Act
22 shall be deposited into the Wetlands Protection Fund, which is
23 hereby created as a special fund in the State Treasury. In
24 addition to any moneys that may be appropriated from the
25 General Revenue Fund, the Illinois General Assembly shall
26 appropriate moneys in the Wetlands Protection Fund to the
27 Department in amounts deemed necessary to implement this Act.
 
28     Section 95. The State Finance Act is amended by adding
29 Section 5.640 as follows:
 
30     (30 ILCS 105/5.640 new)
31     Sec. 5.640. The Wetlands Protection Fund.
 
32     Section 97. Severability. The provisions of this Act are

 

 

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1 severable under Section 1.31 of the Statute on Statutes.