101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1352

 

Introduced 2/13/2019, by Sen. Laura Fine

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.891 new

    Creates the Wetlands Protection Act. Provides provisions concerning: exemptions; wetlands delineation, classification, notification, and permits; surety; general permits; appeal of final decisions made by the Department of Natural Resources and judicial review; investigation and enforcement; and county authority. Creates the Wetlands Advisory Committee and establishes duties and rules for the Committee. Creates the Wetlands Protection Fund. Defines terms. Makes conforming changes in the State Finance Act. Effective immediately.


LRB101 00251 LNS 45255 b

 

 

A BILL FOR

 

SB1352LRB101 00251 LNS 45255 b

1    AN ACT concerning wetlands.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Wetlands Protection Act.
 
6    Section 5. Scope. This Act does not apply to property
7within a municipality with a population greater than 500,000,
8nor to property within the incorporated or unincorporated area
9of a county with a population greater than 3,000,000.
 
10    Section 10. Definitions. For the purposes of this Act:
11    "ADID" means those aquatic sites identified by the United
12States Environmental Protection Agency and the United States
13Army Corps of Engineers as areas generally unsuitable for
14disposal of dredged or fill material in accordance with 40
15C.F.R. Part 230.80.
16    "Affected property" means any property upon which a
17regulated activity is conducted.
18    "Agency" means the Illinois Environmental Protection
19Agency.
20    "Agricultural land" means land that is currently used for
21normal farming or ranching activities.
22    "Avoidance" means any action taken in a manner such that a

 

 

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1regulated activity will not occur.
2    "Bog" means a peat-accumulating wetland that has no
3significant inflows or outflows and supports acidophilic
4mosses, particularly sphagnum, resulting in highly acidic
5conditions.
6    "Commencing such a regulated activity" means any steps
7taken in preparation of conducting a regulated activity that
8may impact the affected property, including, but not limited
9to, cutting, filling, pumping of water, or earth movement.
10    "Committee" means the Wetlands Advisory Committee.
11    "Contiguous wetland" means a wetland that is delineated on
12the affected property and extends beyond the boundary of that
13property.
14    "Converted wetland" means a wetland that has been drained,
15dredged, filled, leveled, or otherwise manipulated, including
16the removal of woody vegetation or any activity that results in
17impairing or reducing the flow and circulation of water, for
18the purpose of or with the effect of making possible the
19production of an agricultural commodity without further
20application of the manipulations described herein if: (i) such
21production would not have been possible but for such action;
22and (ii) before such action such land was wetland, farmed
23wetland, or farmed-wetland pasture and was neither highly
24erodible land nor highly erodible cropland.
25    "Corps of Engineers" or "COE" means the United States Army
26Corps of Engineers.

 

 

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1    "Cypress swamp" means forested, permanent or
2semi-permanent bodies of water, with species assemblages
3characteristic of the Gulf and Southeastern Coastal Plains,
4including, but not limited to, tupelo and bald cypress, which
5are restricted to extreme southern Illinois.
6    "Department" means the Illinois Department of Natural
7Resources.
8    "Director" means the Director of Natural Resources.
9    "Fen" means a wetland fed by an alkaline water source such
10as a calcareous spring or seep.
11    "Floristic quality index" means an index calculated using
12the Floristic Quality Assessment Method of assessing floristic
13integrity or quality by summing the numerical quality ratings
14of all plant species present then dividing the total by the
15number of native species present (mean coefficient of
16conservatism) or by the square root of the number of native
17species (floristic quality index).
18    "Incidentally created" means created as a result of any
19normal or routine activity coincidental with the conduct of
20legitimate business enterprises. "Incidentally created" does
21not mean a wetland or depression created as mitigation for any
22activity affecting wetlands.
23    "Incidental fallback" means the redeposit of small volumes
24of dredged material that is incidental to excavation activity
25in waters of the State when such material falls back to
26substantially the same place as the initial removal.

 

 

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1    "Isolated wetlands" means those areas that are inundated or
2saturated by surface or ground water at a frequency or duration
3sufficient to support, and that under normal circumstances do
4support, a prevalence of vegetation typically adapted for life
5in saturated soil conditions, and that are not regulated under
6the federal Clean Water Act.
7    "Panne" means wet interdunal flats located near Lake
8Michigan.
9    "Person" means an individual, partnership, co-partnership,
10firm, company, limited liability company, corporation,
11association, joint stock company, trust, estate, political
12subdivision, State agency, or other legal entity, or its legal
13representative, agent, or assigns.
14    "Prior converted cropland" means a converted wetland where
15the conversion occurred prior to December 23, 1985, an
16agricultural commodity has been produced at least once before
17December 23, 1985, and as of December 23, 1985, the converted
18wetland did not support woody vegetation and met the following
19hydrologic criteria: (i) inundation was less than 15
20consecutive days during the growing season or 10% of the
21growing season, whichever is less, in most years (50% chance or
22more); and (ii) if a pothole, ponding was less than 7
23consecutive days during the growing season in most years (50%
24chance or more) and saturation was less than 14 consecutive
25days during the growing season most years (50% chance or more).
26    "Regulated activity" means the discharge of dredged or fill

 

 

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1material into a wetland, the drainage of a wetland, or
2excavation of a wetland that results in more than incidental
3fallback.
4    "Threatened or endangered species" means those species
5that have been designated as threatened or endangered by the
6Illinois Endangered Species Protection Board pursuant to the
7Illinois Endangered Species Protection Act and those species
8that have been designated as threatened or endangered by the
9U.S. Fish and Wildlife Service pursuant to the Endangered
10Species Act.
11    "Upland" means non-wetland, when used to describe a
12particular land use, or non-hydric, when used to describe a
13soil type.
14    "Wetlands" means those areas that are inundated or
15saturated by surface or ground water at a frequency or duration
16sufficient to support, and that under normal circumstances do
17support, a prevalence of vegetation typically adapted for life
18in saturated soil conditions.
 
19    Section 20. Exemptions.
20    (a) As long as they do not have as their purpose bringing a
21wetland into a use to which it was not previously subject, the
22following are not prohibited by or otherwise subject to
23regulation under this Act:
24        (1) Normal farming, silviculture, and ranching
25    activities including plowing, seeding, cultivating, minor

 

 

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1    drainage, harvesting for the production of food, fiber, and
2    forest products, or upland soil and water conservation
3    practices.
4        (2) Maintenance, including emergency reconstruction of
5    recently damaged parts, of currently serviceable
6    structures including dikes, dams, levees, groins, riprap,
7    breakwaters, causeways, and bridge abutments or
8    approaches, and transportation structures.
9        (3) Construction or maintenance of farm or stock ponds
10    or irrigation canals or ditches, or the maintenance of
11    drainage ditches.
12        (4) Construction of temporary sedimentation basins on
13    a construction site that does not include any regulated
14    activities within a wetland.
15        (5) Construction or maintenance of farm roads or forest
16    roads, or temporary roads for moving mining equipment,
17    where such roads are constructed and maintained, in
18    accordance with best management practices, to assure that
19    flow and circulation patterns and chemical and biological
20    characteristics of the wetland are not impaired, that the
21    reach of the wetland is not reduced, and that any adverse
22    effect on the aquatic environment will be otherwise
23    minimized.
24        (6) Except for Class IA and Class IB wetlands,
25    activities for the placement of pilings for linear
26    projects, including bridges, elevated walkways, and power

 

 

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1    line structures in accordance with best management
2    practices, to assure that the flow and circulation patterns
3    and chemical and biological characteristics of the wetland
4    are not impaired, that the reach of the wetland is not
5    reduced, and that any adverse effect on the aquatic
6    environment will be otherwise minimized.
7        (7) Installation and maintenance of signs, lighting,
8    and fences and the mowing of vegetation within existing
9    maintained rights-of-way.
10        (8) Repair and maintenance of existing buildings,
11    facilities, lawns, and ornamental plantings.
12        (9) Construction projects that have obtained any
13    necessary building permits from applicable local
14    jurisdictions prior to the effective date of this Act.
15        (10) Application of media, including deicing media, on
16    the surface of existing roads for purposes of public
17    safety.
18        (11) Non-surface disturbing surveys and investigations
19    for construction, planning, maintenance, or location of
20    environmental resources.
21        (12) Wetland management practices on lands that are
22    used primarily for the management of waterfowl, other
23    migratory water birds, or furbearers if such practices took
24    place on these lands prior to the effective date of this
25    Act including vegetation management that may include the
26    use of fire, chemical, or mechanical (hydro-axe,

 

 

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1    bulldozer, rome disk, or similar equipment) removal of
2    invading woody or herbaceous vegetation to maintain a
3    preferred successional stage. Use of chemicals must be by a
4    certified applicator and appropriate to their registered
5    uses. Clearing or removal of woody vegetation shall be
6    limited to 4-inch diameter at breast height or smaller
7    material for the purpose of establishing or maintaining the
8    successional stage of a wetland as an herbaceous wetland
9    vegetated by native moist soil plants or selected wildlife
10    food plants.
11    (b) Any exemption authorized by and pertaining to wetlands
12that are subject to regulation under the federal Clean Water
13Act, or regulations promulgated thereunder, shall also be an
14exemption for the purpose of this Act.
15    (c) The following are not isolated wetlands for purposes of
16this Act:
17        (1) Waste treatment systems, including treatment ponds
18    or lagoons, designed to comply with water quality standards
19    of the State or to remediate a site in accordance with an
20    approved Agency program, and former waste treatment
21    systems that have ceased operation less than 33 years prior
22    to commencement of the proposed activity or which are
23    undergoing remediation in accordance with an approved
24    Agency program.
25        (2) A drainage or irrigation ditch.
26        (3) An artificially irrigated area that would revert to

 

 

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1    upland if the irrigation ceased.
2        (4) An artificial lake or pond created by excavating or
3    diking upland to collect and retain water for the primary
4    purpose of stock watering, irrigation, wildlife, fire
5    control, ornamentation or landscaping, or as a settling
6    pond.
7        (5) Except for isolated wetlands created pursuant to
8    mining activities regulated in accordance with paragraph
9    (7), an incidentally created water-filled depression,
10    unless: (i) ownership of the property containing the
11    depression has been transferred away from the party who
12    incidentally created the water-filled depression; (ii)
13    that ownership transfer occurred more than 12 months prior
14    to the commencement of an otherwise regulated activity;
15    (iii) the use of the property has changed from the use that
16    existed when the property was transferred from the party
17    who incidentally created the water-filled depression; and
18    (iv) the resulting body of water meets the definition in
19    this Act of an isolated wetland, or if the ownership of the
20    property has not been transferred from the party who
21    created the incidentally created water-filled depression,
22    the depression was not created more than 33 years before
23    the date the application is received by the Department.
24        (6) Stormwater or spill management systems, including
25    retention and detention basins, ditches and channels, and
26    former stormwater or spill management systems that have

 

 

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1    ceased operation less than 33 years prior to commencement
2    of the proposed activity or which are undergoing
3    remediation in accordance with an approved Agency program.
4        (7) Waters that undergo mining activities conducted
5    pursuant to a federal, State, regional, or local permit
6    that requires the reclamation of the affected wetlands if
7    the reclamation will be completed within a reasonable
8    period of time after completion of activities at the site
9    and, upon completion of such reclamation, the wetlands will
10    support functions generally equivalent to the functions
11    supported by the wetlands at the time of commencement of
12    such activities.
13        (8) Prior converted cropland.
14    (d) Any activity covered by the Interagency Wetland Policy
15Act of 1989 is exempt from all of the provisions of this Act.
 
16    Section 25. Applicability. Through June 30, 2022, the
17requirements of this Act apply to all isolated wetlands as that
18term is defined in this Act. If an isolated wetland ceases to
19meet that definition because it becomes subject to regulation
20under the federal Clean Water Act, such wetland shall no longer
21be subject to the provisions of this Act.
22    Beginning July 1, 2022, the requirements of this Act apply
23to all wetlands as that term is defined in this Act, unless a
24COE permit is required; provided, however, that if an exemption
25under Section 20 applies, that exemption shall continue in

 

 

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1effect after July 1, 2022.
2    The Department on behalf of the State may enter into
3written delegation agreements with the Corps of Engineers under
4which it may assume all or portions of the authority of the
5Corps of Engineers under the federal Clean Water Act. Such
6delegation agreements shall provide, at a minimum, that all
7delineation, classification, notification, and permitting
8requirements shall be at least as stringent as those contained
9in this Act.
 
10    Section 30. Wetlands delineation, classification,
11notification, permits. The requirements of this Section apply
12upon the adoption of rules under subsection (c) of Section 45,
13or 270 days from the effective date of this Act, whichever
14occurs first.
15    (a) The procedures and regulatory criteria for the
16delineation, classification, notification, and permitting for
17wetlands shall be conducted in accordance with the provisions
18of this Section.
19    (b) Any person who intends to conduct a regulated activity
20within the State may request a determination from the
21Department as to the existence, location, and surface area of
22any wetlands on or contiguous to the affected property. Nothing
23in this Section shall require the person to seek such a
24determination; however, failure to seek and obtain a
25determination shall not be a defense against a violation of

 

 

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1this Act.
2    The person seeking a determination shall provide the
3Department with sufficient information to render such a
4determination. Such information shall include a wetland
5delineation made in accordance with the Corps of Engineers
6Wetlands Delineation Manual, Wetlands Research Program
7Technical Report Y-87-1, and any applicable Regional
8Supplements thereto. Delineation of the portion of a contiguous
9wetland not on the affected property shall be made to the
10extent reasonably possible, and methods other than physical
11onsite evaluations shall be considered by the Department.
12    The Department shall provide notice to the person seeking a
13determination as to whether a submitted determination request
14is complete. Unless the Department notifies the person seeking
15a determination that the determination request is incomplete
16within 15 days of receipt of the determination request, the
17determination request shall be deemed complete. The Department
18may request additional information as needed to make the
19completeness determination.
20    The Department shall, upon receipt of a complete
21determination request, provide the person, within 30 days, with
22a determination as to the existence, location, and surface area
23of wetlands located on or contiguous to the affected property.
24    If the Department determines that there are no wetlands on
25the affected property, any otherwise regulated activity
26conducted on the property shall not be subject to the

 

 

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1provisions of this Act.
2    If the Department determines that there is one or more
3wetlands on or contiguous to the affected property, the person
4may apply to the Department for classification of such
5wetlands.
6    Any determination of a wetland by the Department is a final
7decision for purposes of appeal under Section 50.
8    (c) If any person intends to conduct a regulated activity,
9such person may, prior to commencing such a regulated activity,
10request that the wetland be classified as Class IA, IB, II, or
11III in accordance with the provisions of this Section. Nothing
12in this Section shall require the person to seek such a
13classification; however, any wetlands not so classified shall
14be considered Class IA for the purposes of this Act.
15    The person seeking a classification shall provide the
16Department with sufficient information to render such a
17classification. Such information shall include a wetland
18delineation made in accordance with the Corps of Engineers
19Wetlands Delineation Manual, Wetlands Research Program
20Technical Report Y-87-1, and any applicable Regional
21Supplements thereto.
22    Unless the Department notifies the person seeking a
23classification that the classification request is incomplete
24within 15 days of receipt of the classification request, the
25classification request shall be deemed complete. The
26Department may request additional information as needed to make

 

 

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1the completeness determination. The Department shall, upon
2receipt of a complete classification request, provide the
3person seeking a classification, within 30 days, with a
4classification of wetlands located on or contiguous to the
5affected property. If the Department fails to provide the
6person seeking a classification with a classification within 30
7days, the classification requested by the person shall be
8deemed granted.
9    Wetlands shall be classified as follows:
10        (1) The Department shall classify a wetland as a Class
11    IA Wetland if:
12            (A) the wetland is or encompasses a bog;
13            (B) the wetland is or encompasses a fen;
14            (C) the wetland is or encompasses a panne;
15            (D) the wetland is or encompasses a cypress swamp;
16            (E) the wetland is or encompasses a Category I
17        Illinois Natural Areas Inventory Site as identified by
18        the Department in its Natural Heritage Database,
19        provided that the Department shall disclose within 5
20        working days of a request from an applicant, a
21        prospective applicant, or a qualified professional on
22        behalf of an applicant or a prospective applicant
23        whether a site identified by latitude and longitude
24        includes a Category I Illinois Natural Areas Inventory
25        Site; or
26            (F) a threatened or endangered species has been

 

 

SB1352- 15 -LRB101 00251 LNS 45255 b

1        identified in the wetland.
2         (2) The Department shall classify a wetland as a Class
3    IB Wetland 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 as identified by the
7        Department in its Natural Heritage Database or
8        regional equivalent; provided that the Department
9        shall disclose within 5 working days of a request from
10        an applicant, a prospective applicant, or a qualified
11        professional on behalf of an applicant or a prospective
12        applicant whether a site identified by latitude and
13        longitude includes a Category VI Illinois Natural
14        Areas Inventory Site; or
15            (C) has a Floristic Quality Index (FQI) which is
16        equal to or greater than 20 or a mean coefficient of
17        conservatism (Mean C) equal to or greater than 3.5,
18        determined in accordance with rules adopted by the
19        Department.
20         (3) The Department shall classify a wetland as a Class
21    II Wetland if the wetland is not a Class IA, Class IB, or
22    Class III wetland.
23         (4) The Department shall classify a wetland as a Class
24    III Wetland if:
25             (A) the wetland is not a Class IA or Class IB
26        wetland; and

 

 

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1             (B) the total size of the wetland, including
2        contiguous areas, is
3                (i) less than 0.25 acre; or
4                (ii) less than 0.5 acre if the wetland is in a
5            county that does not have authority to establish a
6            stormwater management program under Section 5-1062
7            of the Counties Code and the wetland is in
8            agricultural land.
9    (d) Subject to the provisions of Section 40 regarding
10general permits, no person may conduct or cause to be conducted
11a regulated activity within or affecting a wetland in such a
12manner that the biological or hydrological integrity of the
13wetland is impaired within the scope of this Act, except in
14accordance with the terms of an individual permit issued by the
15Department or authorization to proceed as applicable under this
16Section.
17    (1) Class IA Wetlands:
18            (A) A permit to conduct a regulated activity
19        affecting a Class IA wetland within the scope of this
20        Act shall be granted if documentation is submitted that
21        demonstrates that complete avoidance of impacts to the
22        Class IA wetland precludes all economic use of the
23        entire parcel and that no practicable alternative to
24        wetland modification exists.
25            Based upon a review of the submitted documentation
26        and any other available resources, the Department

 

 

SB1352- 17 -LRB101 00251 LNS 45255 b

1        shall make a determination as to whether the proposed
2        modification represents the least amount of wetland
3        impact required to restore an economic use to the
4        upland portion of the parcel.
5            Wetland losses shall be mitigated at a ratio of
6        4.5:1 and shall be mitigated in kind and within the
7        same watershed as the impacted area restoring, to the
8        maximum degree practicable as determined by the
9        Department, both the type and functions of the wetland
10        that will be affected by the regulatory activity.
11            The Director, for good cause shown and on a
12        case-by-case basis, may authorize an upward or
13        downward departure from the mitigation ratio otherwise
14        required under this paragraph (1), but for a Class IA
15        wetland the Director shall require a mitigation ratio
16        of at least 4:1 and shall not require a mitigation
17        ratio greater than 5:1.
18            (B) No permit under this paragraph (1) may be
19        issued by the Department without a public notice and a
20        public hearing.
21    (2) Class IB Wetlands:
22            (A) A permit to conduct a regulated activity
23        affecting a Class IB wetland within the scope of this
24        Act shall be granted if documentation is submitted that
25        demonstrates that no practicable alternative to
26        wetland modification exists.

 

 

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

 

 

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1    (3) Class II Wetlands:
2            (A) A permit to conduct a regulated activity
3        affecting a Class II wetland within the scope of this
4        Act shall be granted if documentation is submitted
5        demonstrating that no reasonable alternative to
6        wetland modification exists.
7            Based upon a review of the submitted documentation
8        and any other available resources, the Department
9        shall make a determination as to whether the proposed
10        modification constitutes the least amount of wetland
11        impact practicable and whether a permit should be
12        granted.
13            Wetland losses shall be mitigated at a ratio of
14        1.5:1 and shall be mitigated in kind and within the
15        same watershed as the impacted area, restoring both the
16        type and functions of the wetland that will be affected
17        by the regulated activity.
18            (B) No permit under this paragraph (3) may be
19        issued by the Department without a public notice and
20        opportunity for public hearing being afforded. The
21        Department shall hold a public hearing concerning a
22        permit application if the proposed activity may have a
23        significant impact upon wetland resources or if the
24        Department determines that a public hearing is
25        otherwise appropriate.
26    (4) Class III Wetlands:

 

 

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1            (A) No regulated activity covered under this Act
2        that will impact an area that has been classified as a
3        Class III wetland may be undertaken without prior
4        notification to the Department.
5            (B) Such notification shall include: (i) a sketch
6        that reasonably depicts the area that will be affected
7        by the regulated activity, including wetland and water
8        boundaries for the areas affected and the existing land
9        uses and structures; (ii) a description of the proposed
10        activity, including its purpose; (iii) a description
11        of any public benefit to be derived from the proposed
12        project; and (iv) the names and addresses of adjacent
13        landowners as determined by the current tax assessment
14        rolls.
15            (C) Upon receipt of a notification of intent, the
16        Department shall verify that the regulated activity
17        will affect a wetland that it previously classified as
18        Class III.
19            If the Department so verifies, the Department
20        shall send the person, within 30 days of the receipt of
21        such notification, a response stating that the
22        regulated activity may proceed.
23            If the Department cannot so verify, the Department
24        shall send the person, within 30 days of the receipt of
25        such notification, a response stating that no
26        classification has been made by the Department, or that

 

 

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

 

 

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1disposal; (iv) a description of any public benefit to be
2derived from the proposed project; and (v) the names and
3addresses of adjacent landowners as determined by the current
4tax assessment rolls. The Department's application forms shall
5be finalized and made available prior to the date on which any
6application is required. The Department shall provide notice to
7the applicant as to whether a submitted application is
8complete. Unless the Department notifies the applicant that the
9application is incomplete within 20 days of receipt of the
10application, the application shall be deemed complete. The
11Department may request additional information as needed to make
12the completeness determination. The Department may, to the
13extent practicable, provide the applicant with a reasonable
14opportunity to correct deficiencies prior to a final
15determination of completeness. Within 90 days from the receipt
16of a complete application for permit, the Department shall
17either issue or deny the permit or issue it with conditions. If
18a public hearing is held on the application, however, this
19period shall be extended by 45 days.
20    (f) The Department shall not issue a permit pursuant to
21this Section unless the Agency has certified that the proposed
22activity will not cause or contribute to a violation of any
23State water quality standard. The Agency will be deemed to have
24certified that the proposed activity will not cause or
25contribute to a violation of any State water quality standard
26if it has not declined in writing to so certify within 80 days

 

 

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1of the filing of the application unless the Agency has
2requested that the applicant supply more information relevant
3to assessing the water quality impacts of the proposed
4activity. If a public hearing is held on the application,
5however, this period shall be extended by 45 days.
6    (g) A person may submit concurrent requests for: (i)
7determination and delineation; (ii) classification; and (iii)
8issuance of a permit or notification. The Department shall act
9on such combined requests concurrently in accordance with
10expedited permitting procedures adopted by the Department.
11    (h) Any person may submit an application for an
12after-the-fact permit to be issued under this Act, and the
13Department is authorized to issue such an after-the-fact permit
14if it determines that the activities covered by the
15after-the-fact permit application were undertaken and
16conducted in response to emergency circumstances where there
17was an imminent threat to persons, public infrastructure,
18personal property, or uninterrupted utility service that made
19it impracticable for the applicant to obtain prior
20authorization under this Act to undertake and conduct such
21activities. The applicant shall be required to demonstrate that
22it provided notice to the Department of the emergency
23circumstances as soon as reasonably possible following the
24discovery of such circumstances.
25    (i) The Department shall adopt rules to carry out the
26provisions of this Section in accordance with Section 45 of

 

 

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1this Act.
 
2    Section 35. Surety. The Department may provide by rule for
3any requirements regarding bonds or letters of credit in favor
4of the State, including conditions sufficient to secure
5compliance with conditions and limitations of a permit.
 
6    Section 40. General permits.
7    (a) Notwithstanding the provisions of Section 30, any
8person who intends to conduct a regulated activity within the
9State may do so in accordance with a general permit issued by
10the Department under this Section.
11    (b) Permits for all categories of activities, subject to
12the same permit limitations and conditions, that are the
13subject of a nationwide permit issued by the Corps of Engineers
14and in effect on the date of the enactment of this Act, are
15adopted as general permits covering regulated activities
16subject to this Act.
17    (c) The Department may issue general permits covering other
18activities that would be subject to the same permit limitations
19and conditions, if it determines that the activities in such
20category will cause only minimal adverse environmental effects
21when performed separately, will have only minimal cumulative
22adverse effect on the environment, will not cause or contribute
23to a violation of State water quality standards when performed
24separately, and will have only a minimal cumulative adverse

 

 

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1effect on water quality. The Department may prescribe best
2management practices for any general permit issued under this
3Section. The Department shall consider any optional mitigation
4proposed by an applicant in determining whether the net adverse
5environmental effects of a proposed regulated activity are
6minimal.
7    Specifically, the Department must issue general permits
8for each of the following:
9        (1) The construction or maintenance of access roads for
10    utility lines, substations or related equipment or
11    facilities.
12        (2) Activities for the purpose of preserving and
13    enhancing aviation safety or to prevent an airport hazard.
14    (d) No general permit issued under this Section shall be
15for a period of more than 5 years after the date of its
16issuance. A general permit may be revoked or modified by the
17Department if, after opportunity for public hearing, the
18Department determines that the activities authorized by the
19general permit have an adverse impact on the environment, cause
20or contribute to a violation of State water quality standards,
21or are more appropriately authorized by individual permits.
22    (e) Compliance with the terms of a general permit shall be
23deemed compliance with the provisions of this Act if the
24applicant: (i) files a notice of intent to be covered under the
25provisions of the general permit in accordance with regulations
26adopted pursuant to this Act; and (ii) files any reports

 

 

SB1352- 26 -LRB101 00251 LNS 45255 b

1required by the general permit.
2    (f) The Department shall respond to a notice of intent to
3proceed under a general permit issued under this Section within
430 days after the Department receives the notice. If the
5Department fails to respond to a notice of intent to proceed
6within 30 days as required by this subsection (f), the person
7submitting the notice shall be deemed fully authorized to
8conduct the activities described in the notice under the terms
9and conditions of the applicable general permit.
 
10    Section 45. Wetlands Advisory Committee; duties; rules.
11    (a) The Wetlands Advisory Committee is created, which shall
12consist of the following 17 voting members appointed by the
13Governor:
14    Five members representing the interests of business,
15industry, real estate, and agriculture.
16    Five members selected from the membership of environmental
17and conservation groups in the State.
18    Two members representing counties exercising authority
19under Section 5-1062 or 5-1062.1 of the Counties Code to
20establish stormwater management programs.
21    One member representing municipalities.
22    One member representing building trades unions.
23    Three other members as determined by the Governor.
24    The Director of Natural Resources, or his or her designee,
25and the Director of the Illinois Environmental Protection

 

 

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1Agency, or his or her designee, shall be non-voting members of
2the Committee.
3    The Committee shall biannually elect from its membership a
4Chair, who shall not be an employee of the Illinois
5Environmental Protection Agency or the Department.
6    Members of the Advisory Committee may organize themselves
7as they deem necessary and shall serve without compensation.
8    The Department shall provide reasonable and necessary
9staff support to the Committee.
10    (b) Within 120 days after the effective date of this Act,
11the Committee shall recommend rules to the Department. From
12time to time the Committee shall review, evaluate, and make
13recommendations: (i) regarding changes to State laws, rules,
14and procedures that relate to this Act; and (ii) relating to
15the Department's efforts to implement this Act.
16    (c) Within 6 months after the effective date of this Act,
17the Department, after consideration of the recommendations of
18the Committee, or if the Committee for any reason has not made
19recommendations, the Department itself, shall adopt any rules
20required by this Act prescribing procedures and standards for
21its administration. Nothing in this Act shall preclude, at any
22time, the recommendation, proposal, or adoption of any other
23rules deemed necessary for the orderly implementation of this
24Act.
25    (d) The Committee shall develop a plan for statewide
26wetlands protection and shall submit such plan to the

 

 

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1Department. The Department may seek to obtain a delegation of
2the Corps of Engineers' authority under Section 404 of the
3federal Clean Water Act for all wetlands in Illinois on or
4before July 1, 2022 in accordance with Section 25 of this Act.
5    (e) The Committee shall assist counties having stormwater
6management authority under Section 5-1062 or 5-1062.1 of the
7Counties Code in coordinating and unifying stormwater
8management regulations adopted thereto, as required in
9subsection (f) of Section 60.
 
10    Section 50. Appeal of final Department decision; judicial
11review.
12    (a) Any permit applicant who has been denied a permit in
13whole or in part, and any person who participated in the permit
14proceeding and who is aggrieved by a decision of the Department
15to grant a permit in whole or in part, may appeal the decision
16to the Director within 35 days of the permit grant or denial.
17However, the 35-day period for appealing to the Director may be
18extended by the applicant for a period of time not to exceed 90
19days by written notice provided to the Director. In all such
20appeals, the burden of persuasion shall be on the party
21appealing the Department's decision.
22    (b) A person aggrieved by a final decision made under this
23Act may seek judicial review of the decision under the
24Administrative Review Law.
 

 

 

SB1352- 29 -LRB101 00251 LNS 45255 b

1    Section 55. Investigation; enforcement.
2    (a) In accordance with constitutional limitations, the
3Department shall have authority to enter at all reasonable
4times upon any private or public property for the purpose of
5inspecting and investigating to ascertain possible violations
6of this Act or of rules adopted hereunder, or of permits and
7the terms or conditions thereof.
8    (b) The civil penalties provided for in this Section may be
9recovered in a civil action which may be instituted in a court
10of competent jurisdiction. The State's Attorney of the county
11in which the alleged violation occurred, or the Attorney
12General, may, at the request of the Department or on his or her
13own motion, institute a civil action in a court of competent
14jurisdiction to recover civil penalties and to obtain an
15injunction to restrain violations of the Act.
16    (c) Any person who violates any provision of this Act or
17any rule adopted hereunder, or any permit or term or condition
18thereof, shall be liable for a civil penalty of not to exceed
19$10,000 per day of violation; such penalties may be made
20payable to the Wetlands Protection Fund and shall be deposited
21into that Fund as provided in subsection (j). In determining
22the appropriate civil penalty to be imposed under this Section,
23the Court is authorized to consider any matters of record in
24mitigation or aggravation of penalty, including but not limited
25to the following factors:
26        (1) The duration and gravity of the violation.

 

 

SB1352- 30 -LRB101 00251 LNS 45255 b

1        (2) The presence or absence of due diligence on the
2    part of the violator in attempting to comply with
3    requirements of this Act and rules adopted hereunder or to
4    secure relief therefrom as provided by this Act.
5        (3) Any economic benefits accrued by the violator
6    through the violation.
7        (4) The amount of monetary penalty which will serve to
8    deter further violations by the violator and to otherwise
9    aid in enhancing voluntary compliance with this Act by the
10    violator and other persons similarly subject to this Act.
11        (5) The number, proximity in time, and gravity of
12    previously adjudicated violations of this Act by the
13    violator.
14    (d) Any violation of any provision of this Act or any rule
15adopted hereunder, or any permit or term or condition thereof,
16shall not be deemed a criminal offense.
17    (e) All final orders imposing civil penalties pursuant to
18this Section shall prescribe the time for payment of such
19penalties. If any such penalty is not paid within the time
20prescribed, interest on such penalty at the rate set forth in
21subsection (a) of Section 1003 of the Illinois Income Tax Act
22shall be paid for the period from the date payment is due until
23the date payment is received. However, if the time for payment
24is stayed during the pendency of an appeal, interest shall not
25accrue during such stay.
26    (f) The Department may terminate a permit if the holder

 

 

SB1352- 31 -LRB101 00251 LNS 45255 b

1substantially violates any condition of the permit, obtains a
2permit by misrepresentation, or fails to disclose relevant
3facts.
4    (g) The Attorney General, or the State's Attorney of the
5county where the affected wetland is located, may, upon his or
6her own motion or upon request of the Department, institute a
7civil action in circuit court for an injunction or other
8appropriate legal action to restrain a violation of this Act or
9of any rule adopted under this Act. In the proceeding the court
10shall determine whether a violation has been committed or is
11likely to occur, and shall enter any order it considers
12necessary to remove the effects of the violation and to prevent
13the violation from occurring, continuing, or being renewed in
14the future. An order may include a requirement that the
15violator restore the affected wetland area, including a
16provision that, if the violator does not comply by restoring
17the wetland within a reasonable time, the Department may
18restore the wetland to its condition prior to the violation and
19the violator shall be liable to the Department for the cost of
20restoration.
21    (h) Any penalty assessed under this Act, including costs of
22wetland restoration and any restoration requirement, shall be
23recorded by the clerk of the court as a lien against the land
24and shall not be removed until the penalty is paid or the
25restoration is completed.
26    (i) All costs, fees, and expenses in connection with an

 

 

SB1352- 32 -LRB101 00251 LNS 45255 b

1enforcement or restoration action shall be assessed as damages
2against the violator.
3    (j) All penalties collected under this Section shall be
4deposited into the Wetlands Protection Fund.
5    (k) Enforcement actions under this Section may be
6concurrent or separate.
 
7    Section 60. County authority.
8    (a) Nothing in this Act preempts or denies the right of any
9governmental body with a stormwater management program under
10Section 5-1062 of the Counties Code to control or regulate
11activities in any wetlands within the jurisdiction of the
12governmental body.
13    (b) Upon the request of a governmental body with a
14stormwater management program under Section 5-1062 of the
15Counties Code, the Director shall, within 30 calendar days of
16receiving the request, provide a letter recognizing whether the
17governmental body's stormwater management program:
18        (1) provides wetlands protection consistent with the
19    intent of this Act; and
20        (2) has an administration and qualified staff to
21    implement the governmental body's stormwater management
22    program.
23    (c) After consultation with the Department, the General
24Assembly finds and declares that the stormwater management
25programs implemented by DuPage, Lake, and Kane Counties under

 

 

SB1352- 33 -LRB101 00251 LNS 45255 b

1Section 5-1062 of the Counties Code, as they exist on the
2effective date of this Act, meet the requirements of subsection
3(b), and therefore they shall be deemed to have received
4recognition and approval under that subsection without further
5action by the Department.
6    (d) Activities within or affecting wetlands that occur
7within the jurisdiction of a governmental body with a
8stormwater management program under Section 5-1062 of the
9Counties Code that meets the provisions of paragraphs (1) and
10(2) of subsection (b) of this Section are exempt from the
11requirements of this Act, but must meet those county stormwater
12management requirements, at a minimum. This exemption also
13applies during the period that the Department is considering a
14county's request under subsection (b), but the requirements of
15this Act do apply until the county has requested recognition
16under subsection (b), unless the county has received immediate
17recognition under subsection (c) of this Section.
18    (e) The Director may rescind recognition status if the
19governmental body with a stormwater management program under
20Section 5-1062 of the Counties Code no longer meets the
21provisions of paragraphs (1) and (2) of subsection (b) of this
22Section.
23    (f) A governmental body with a stormwater management
24program under Section 5-1062 of the Counties Code that has
25obtained recognition by the Director under subsection (b) of
26this Section shall submit an annual report to the Director.

 

 

SB1352- 34 -LRB101 00251 LNS 45255 b

1    (g) Counties having authority under Section 5-1062 of the
2Counties Code to adopt a stormwater management program shall
3seek with the assistance of the Northeastern Illinois Planning
4Commission to coordinate and unify regulations adopted
5pursuant thereto.
6    (h) Nothing in this Act shall be construed as a limitation
7or preemption of any home rule power.
 
8    Section 65. Wetlands Protection Fund. All penalties
9collected by the Department pursuant to this Act shall be
10deposited into the Wetlands Protection Fund, which is hereby
11created as a special fund in the State Treasury. In addition to
12any moneys that may be appropriated from the General Revenue
13Fund, the Illinois General Assembly shall appropriate moneys in
14the Wetlands Protection Fund to the Department in amounts
15deemed necessary to implement this Act.
 
16    Section 95. The State Finance Act is amended by adding
17Section 5.891 as follows:
 
18    (30 ILCS 105/5.891 new)
19    Sec. 5.891. The Wetlands Protection Fund.
 
20    Section 97. Severability. The provisions of this Act are
21severable under Section 1.31 of the Statute on Statutes.
 
22    Section 99. Effective date. This Act takes effect upon

 

 

SB1352- 35 -LRB101 00251 LNS 45255 b

1becoming law.