SB0771sam001 103RD GENERAL ASSEMBLY

Sen. Laura Ellman

Filed: 4/9/2024

10300SB0771sam001 LRB103 03226 BDA 71956 a

AMENDMENT TO SENATE BILL 771

AMENDMENT NO. ______. Amend Senate Bill 771 by replacing everything after the enacting clause with the following:

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

Section 5. Findings and intent. The General Assembly finds:

(1) In 1818, Illinois contained an estimated 8.2 million acres of wetlands. Based on the Illinois portion of the National Wetlands Inventory, less than 9% of those original acres of wetlands remain.

(2) As a result of the significant loss in wetland acreage, there has been a corresponding loss in the functional values and benefits that wetlands provide.

(3) Illinois is bordered by 880 miles of rivers, which are critical to navigation, commerce, recreation, and ecosystem health at home and downstream to the Gulf of Mexico, and the health of Illinois rivers is heavily influenced by the health of the tributaries and small streams that flow into them.

(4) In Illinois, 9,894 total miles of streams provide water for surface water intakes, supplying public drinking water systems that rely at least in part on intermittent, ephemeral, or headwater streams.

(5) Continued loss of Illinois' wetlands and small streams may deprive the People of the State of some or all of the benefits that they provide, including:

(A) reducing flood damages and protecting vulnerable communities by absorbing, storing, and conveying peak flows from storms;

(B) improving water quality by serving as sedimentation and filtering basins and as natural biological treatment areas;

(C) providing breeding, nesting, foraging, and protective habitat for approximately 40% of the State's threatened and endangered plants and animals, in addition to other forms of fish, wildlife, game, waterfowl, and shorebirds;

(D) protecting underground water resources and helping to recharge rivers, streams, and local or regional underground water supplies;

(E) serving as recreational areas for hunting, fishing, boating, hiking, bird watching, photography, and other uses;

(F) providing open space and aesthetic values, particularly in rapidly developing areas;

(G) providing unique educational and research opportunities because of their high diversity of plants and animals, their support for a high incidence of threatened and endangered species, and their function as a natural buffer for rivers, lakes, and streams;

(H) supplying nutrients in freshwater food cycles and serving as nursery areas and sanctuaries for young fish; and

(I) helping to protect shorelines from the forces of water erosion.

(6) Our changing climate and its more extreme and less predictable weather patterns heighten the need for some or all of the benefits that Illinois' wetlands provide, including flood control, coastal resilience, water quality, aquifer recharge, habitat, and maintenance of baseflow to recharge rivers, streams, and local or regional underground water supplies.

(7) Illinois historically relied on the federal Clean Water Act's permit program administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to prevent harm to aquatic resources from unauthorized discharges of dredge or fill material.

(8) After rejection of the 1989 Wetland Delineation Manual and in light of uncertainty about federal protections for some "isolated" wetlands, the General Assembly passed the Interagency Wetland Policy Act of 1989 to protect these wetlands from State agency actions and achieve no net loss of wetlands.

(9) Recently, the Supreme Court's decision in Sackett v. EPA rolled back the scope of waters of the United States, thereby removing federal Clean Water Act protections for many waters of the United States, including wetlands that provide significant flood control protections, such as bottomland hardwood forested wetlands that are separated from the Illinois River by levees.

(10) It is important for Illinois to adopt protections under State law to reinstate protections lost by rolling back the scope of the federal Clean Water Act.

Section 10. Definitions.

"Advanced identification site" or "ADID site" means an aquatic site that has been determined to provide biological values by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency Advanced Identification Study in accordance with 40 CFR Part 230.80 as of the effective date of this Act.

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

"Agency" means the Illinois Environmental Protection Agency.

"Agricultural land" means land that is used for normal farming or ranching activities that are exempt from regulation under Section 404(f) of the federal Clean Water Act.

"Approved county or district" means a county or district with a stormwater program that has been approved under Section 55 to issue permits under this Act instead of the Department of Natural Resources.

"Approved wetland specialist" means a person who has met the educational, training, and field experience requirements that have been adopted, by rule, under this Act or set forth in an approved county or district code and that assure knowledgeable wetland delineations using the Corps of Engineers Wetland Delineation Manual in a manner that is consistent with subsection (f) of Section 25 of this Act.

"Avoidance" means any action that is taken in a manner that will cause a regulated activity not to occur and that is consistent with the federal Clean Water Act 404(b)(1) Guidelines developed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

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

"Bottomland hardwood" means forested riverine floodplain forest, including flatwoods in northeastern Illinois, that are located in the 100-year flood plain of Illinois rivers and streams and that are at least seasonally flooded.

"Class I wetland" means a top tier wetland as indicated by type (such as bog, bottomland hardwood forest, or panne), designation (such as Ramsar wetland of international importance), or function (such as threatened or endangered species habitat or important flood protection) consistent with Section 25 of this Act. Class I wetlands do not include waters of the United States.

"Class II wetland" means a wetland, including its contiguous area, that is larger than 0.5 acres and is not a Class I wetland. Class II wetlands do not include waters of the United States.

"Class III wetland" means a wetland, including its contiguous area, that is 0.5 acres or smaller and is not a Class I wetland. Class III wetlands do not include waters of the United States.

"Contiguous area" means the portion of a wetland that extends beyond the property boundary of the affected property.

"Corps of Engineers" means the U.S. Army Corps of Engineers.

"Corps of Engineers Wetlands Delineation Manual" means the 1987 U.S. Army Corps of Engineers, Wetlands Delineation Manual, Research Program Technical Report Y-87-1, and any applicable Regional Supplements thereto.

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

"Department" means the Department of Natural Resources.

"Director" means the Director of Natural Resources.

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

"General permit" means a permit issued by the approved county, district, or the Department in a manner that is consistent with Section 40 of this Act and that pre-authorizes a category of activities that are similar in nature and impact on water quality, will have only minimal adverse effects when performed separately, will have minimal cumulative impacts on water quality provided the permittee complies with all of the conditions of the general permit, and will not cause or contribute to a violation of State water quality standards. "General permit" includes a U.S. Army Corps of Engineers nationwide permit.

"High-Quality Aquatic Resources" or "HQAR" means high-quality aquatic resources consistent with the guidelines of the Chicago District of the U.S. Army Corps of Engineers or approved county or district codes.

"Individual permit" means a permit issued by the Department under Section 30 of this Act after case-specific sequenced review (avoidance, minimization, mitigation) of the proposed project and certification of compliance with State water quality standards.

"In lieu fee mitigation" means a payment to an approved in lieu fee program made by a permittee to satisfy a mitigation requirement in accordance with this Act and implementing rules.

"Maintenance" means work to repair and keep in good working order existing structures in wetlands, including emergency reconstruction of recently damaged parts of currently serviceable structures, including dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures. "Maintenance" does not include any modification that changes the character, scope, or size of the original fill design but such a modification may be eligible to use Nationwide Permit 3, Maintenance.

"Metropolitan Water Reclamation District" or "district" means a district organized under the Metropolitan Water Reclamation District Act.

"Minimization" means reducing, as much as practicable, the adverse environmental impact of an unavoidable regulated activity in a manner that is consistent with this Act and the federal Clean Water Act 404(b)(1) Guidelines developed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

"Mitigation" means the restoration, establishment, enhancement, or protection and maintenance of wetlands and other aquatic resources for the purpose of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved. Mitigation must be consistent with the requirements of this Act. Mitigation may include wetlands creation if authorized by the Department in situations in which other mitigation is impractical and the likelihood of success is high. Wetland creation is restricted to areas that are currently non-wetlands.

"Mitigation bank" means a site, or suite of sites, where aquatic resources, such as wetlands, streams, wetland buffers, and riparian areas, are restored, established, enhanced, or preserved for the purpose of providing compensatory mitigation for impacts authorized by permits under this Act. A mitigation bank may be approved to provide mitigation for impacts to wetlands that have been approved by the Corps of Engineers under Section 404 of the federal Clean Water Act, for impacts to wetlands under the Illinois Interagency Wetlands Policy Act of 1989, or for both. A mitigation bank must be approved by the Department in accordance with this Act and implementing rules; by an approved county; or by the Corps of Engineers in accordance with the process established in 33 CFR 332.8 and 40 CFR 230.98.

"Nationwide permit" means a nationwide permit issued by the U.S. Army Corps of Engineers as of the effective date of this Act.

"Panne" means wet interdunal flats located near Lake Michigan. "Panne" includes dune and swale wetlands.

"Permit" means a written authorization issued by the Department of Natural Resources under this Act and implementing rules. "Permit" includes general permits and individual permits.

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

"Predischarge notification" means notice that a permittee must provide the Department before undertaking an activity authorized by a general permit.

"Prior converted cropland" means a wetland that was converted to agricultural use before December 23, 1985, that had an agricultural commodity produced on it at least once before December 23, 1985, that remains available for agricultural commodity production, and that, as of December 23, 1985, did not support woody vegetation and met the following hydrologic criteria for a farmed wetland: (i) inundation was less than 15 consecutive days during the growing season or 10% of the growing season, whichever is less, in most years (50% chance or more); and (ii) if a pothole, ponding was less than 7 consecutive days during the growing season in most years (50% chance or more) and saturation was less than 14 consecutive days during the growing season most years (50% chance or more). However, if the prior converted cropland is changed out of agricultural use (including conservation) and the area regains wetland attributes, the area may become subject to this Act under Section 15.

"Regulated activity" means the discharge of dredged or fill material into a wetland subject to this Act.

"Threatened or endangered species" means those species that have been designated as threatened or endangered under the Illinois Endangered Species Protection Act and those species that have been listed as threatened or endangered under the federal Endangered Species Act.

"Upland" means non-wetland, dry land.

"Voluntary aquatic habitat restoration project" means activities that are voluntarily undertaken (not as required mitigation) to restore, reestablish, rehabilitate, or enhance altered, degraded, or former aquatic habitats that result in a net increase in aquatic habitat functions and services consistent with historic, pre-disturbance functions and services of the aquatic habitat.

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

Section 15. Exemptions.

(a) Consistent with Section 404(f) of the federal Clean Water Act, as long as they do not have as their purpose bringing a wetland into a use to which it was not previously subject and do not entail discharge of toxic pollutants, the following activities are not prohibited by or otherwise subject to regulation under this Act:

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

(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures, such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.

(3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation and ditches are included in this definition.

(4) Construction of temporary sedimentation basins on a construction site which does not include any regulated activities within a wetland. As used in this paragraph, the term "construction site" means any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. "Construction site" also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins.

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

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

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

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

(1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the federal Clean Water Act and comply with State water quality standards.

(2) Prior converted cropland unless there has been a change in use out of agricultural or conservation use and the area regains wetland attributes.

(3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.

(4) An artificially irrigated area that would revert to upland if the irrigation ceased. This shall also include the pumping of water for purposes of waterfowl hunting or creating waterfowl habitat.

(5) An artificial lake or pond created by excavating or diking upland to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons.

(7) A water-filled depression created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting waterbody meets the definition of "waters of the State" consistent with the Environmental Protection Act, including Section 3.550 of the Environmental Protection Act.

(8) Swales and erosional features, including gullies, rills, and small washes, characterized by low volume, infrequent, or short duration flow.

(9) Wetlands created by the construction of stormwater facilities in upland areas, provided that the facility was not created for the purpose of wetland mitigation.

(d) Any activity covered by the Interagency Wetland Policy Act of 1989 is exempt from the provisions of this Act. This subsection (d) applies only if the applicable governmental entity is in compliance with the Interagency Wetland Policy Act of 1989.

Section 20. Applicability. The requirements of this Act apply to all wetlands as that term is defined in this Act. If a wetland ceases to meet that definition because it becomes subject to regulation under the federal Clean Water Act, it shall no longer be subject to the provisions of this Act. The Department may enter into an agreement with the Corps of Engineers to coordinate the permit program under this Act with the Corps of Engineers permit program under Section 404 of the federal Clean Water Act.

Section 25. Regulated activities; individual and general permits; wetland classification; mitigation; delineation.

(a) No person may discharge dredged or fill material into a wetland protected by this Act except in accordance with the terms of an individual or general permit issued by the Department under this Section or Section 40 of this Act.

(b) Wetlands shall be classified as follows:

(1) The Department shall classify a wetland as Class I if the wetland:

(A) is or encompasses a bog, bottomland hardwood forest, fen, panne, or cypress swamp;

(B) has been designated a Ramsar wetland of international importance under the Convention on Wetlands;

(C) is designated for important flood protection services under paragraph (3);

(D) is habitat for a threatened or endangered species listed under State or federal law;

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

(F) is or encompasses an ADID site; or

(G) is a High-Quality Aquatic Resource.

(2) The Department shall classify a non-Class I wetland as a Class II wetland if the wetland, including its contiguous area, is larger than 0.5 acres. However, if a non-Class I wetland is smaller than 0.5 acres it shall be designated a Class III wetland.

(3) The Department may, in consultation with the Illinois Emergency Management Agency and Office of Homeland Security, the Federal Emergency Management Agency or local authorities, designate a wetland as a Class I wetland due to important flood protection services protecting human life and property if the wetland is no longer protected under the federal Clean Water Act. In addition, an approved county or district under Section 55 may designate high function wetlands as Class I wetlands through a process similar to Lake County's Wetland Restoration and Preservation Plan.

(c) Mitigation shall be required for all regulated activities regardless of the type of permit and shall be conducted according to the following preferred order:

(1) Discharges impacting Class I wetlands shall be mitigated through either on-site mitigation or off-site mitigation at an approved wetland mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the wetland that will be affected by the regulated activity. The mitigation ratio shall be 5:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 6:1 or a lower mitigation ratio not less than 4:1. The in lieu fee option may be used for mitigation when there are no available mitigation credits within the watershed.

(2) Discharges impacting Class II wetlands shall be mitigated through either on-site mitigation or off-site mitigation at an approved wetland mitigation bank within the same watershed as the location of the proposed fill. Mitigation shall be in kind, restoring to the maximum degree practicable as determined by the Department, both the type and functions of the wetland that will be affected by the regulated activity. The mitigation ratio shall be 3:1 unless the Director, for good cause shown and on a case-by-case basis, authorizes a higher mitigation ratio not to exceed 3.5:1 or a lower mitigation ratio not less than 2.5:1. The in lieu fee option may be used for mitigation when there are no available mitigation credits within the watershed.

(3) Discharges impacting Class III wetlands shall be mitigated through either participation in an approved wetland mitigation bank or an approved in-lieu fee program, unless the Department for good cause objects. The mitigation ratio shall be 1.5:1 for compensation through an approved wetland mitigation bank and 2:1 for compensation through an approved in-lieu fee program. The Director, for good cause shown and on a case-by-case basis, may authorize a higher or lower mitigation ratio.

(d) Individuals seeking a permit are responsible for wetland delineation and classification made by or under the supervision of an approved wetland specialist. Wetland delineations shall be made in accordance with the Corps of Engineers Wetland Delineation Manual. Classifications shall be in accordance with this Section or an approved program under Section 55. Delineations by the Corps of Engineers, by approved counties, or by Corps of Engineers approved agencies shall be honored.

(e) Individuals seeking an individual permit shall provide the Department with a complete application, including, at a minimum (i) a map of the area that will be affected by the activity, including wetland and water boundaries for the areas affected and the existing uses and structures; (ii) a wetland delineation made in accordance with the Corps of Engineers Wetland Delineation Manual by or under the supervision of an approved wetland specialist and this Section; (iii) a description of the proposed activity, including its purpose, the location and dimensions of any structures, grading or fills, drainage, roads, sewers and water supply, parking lots, stormwater facilities, discharge of pollutants and on-site waste disposal; (iv) a description of any public benefit to be derived from the proposed project; and (v) the names and addresses of adjacent landowners as determined by the current tax assessment rolls. The Department shall notify the applicant within 20 business days if the permit application is incomplete and provide a reasonable time for the applicant to correct deficiencies in the permit application. Within 90 business days of receipt of a complete permit application, the Department shall either issue the permit, deny the permit, or issue the permit with conditions. All individual permit decisions are subject to public comment. If a public hearing is held, the deadline to make a permit determination is extended by 45 business days.

(f) The Department shall evaluate individual permit requests through the following sequence: (i) avoidance of impacts to aquatic resources if a less environmentally damaging practicable alternative exists; (ii) minimization of unavoidable impacts by taking appropriate and practicable steps such as reduction of the footprint of the fill; (iii) compensatory mitigation for any remaining impacts to aquatic resources in accordance with this Act. The Department shall not issue an individual permit pursuant to this Section unless the Agency has certified that the proposed activity will not cause or contribute to a violation of a State water quality standard. The Agency shall, within 80 business days of receipt of a complete application, approve, deny, or approve with conditions the water quality certification. The applicant for a permit may waive the requirement that the Agency must take final action on the water quality certification under this paragraph within 80 days after the filing of the application.

(g) Upon request by an applicant, the Department may issue an after-the-fact permit if it determines that the activities covered by the after-the-fact permit were undertaken and conducted in response to emergency circumstances that constituted an imminent threat to persons, public infrastructure, personal property, or uninterrupted utility service. The request for an after-the-fact permit must be made as soon as reasonably possible after the event. The Department shall require compensatory mitigation.

Section 30. General permits.

(a) Notwithstanding Section 25, any person who intends to conduct a regulated activity within the State may do so in accordance with a general permit issued by the Department under this Section.

(b) Permits for all categories of activities, subject to the same permit limitations and conditions, that are the subject of a nationwide permit issued by the Corps of Engineers, in effect on the date of the enactment of this Act, are adopted as general permits covering regulated activities subject to this Act. Notwithstanding the foregoing, all such permits will include a predischarge notification requirement and compensatory mitigation, unless the permit states compensatory mitigation is not required because the work is designed to improve water quality. In any case, compensatory mitigation is not required for impacts below 1/10 of an acre.

(c) The Department may adopt general permits, through public notice and comment rulemaking in accordance with the Illinois Administrative Procedure Act covering other activities that would be subject to the same permit limitations and conditions, if it determines that the activities in such a category will cause only minimal adverse environmental effects when performed separately, will have only minimal cumulative adverse effect on the environment, will not cause or contribute to a violation of State water quality standards when performed separately, and will have only a minimal cumulative adverse effect on water quality. The Department shall prescribe best management practices for any general permit issued under this Section. The Department shall include compensatory mitigation requirements in general permits for impacts that exceed 1/10 of an acre.

(d) The Department shall adopt a general permit for:

(1) construction or maintenance of access roads for utility lines, substations, or related equipment or facilities with adequate culverts, bridges, or other structures to provide freshwater connectivity and passage for fish or other aquatic life;

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

(3) conservation activities, such as voluntary aquatic habitat restoration and fish passage.

The Department shall develop the general permit under paragraph (3) in consultation with local, state, and federal resource agencies, such as the U.S. Fish and Wildlife Service, and qualified non-profit organizations engaged in aquatic habitat restoration as a central part of their mission.

(e) No general permit adopted under subsection (b), (c), or (d) of this Section shall be for a period of more than 5 years after the date of its adoption, and the Department shall revoke or modify such a general permit, after opportunity for public hearing, if the Department determines that the activities authorized by the general permit have an adverse impact on the environment, cause or contribute to a violation of State water quality standards, or are more appropriately authorized by individual permits.

(f) Compliance with the terms of a general permit shall be deemed compliance with the provisions of this Act if the applicant:

(1) files a predischarge notification in accordance with regulations adopted under this Act;

(2) files all reports required by the general permit;

(3) complies with all limitations required by the general permit; and

(4) complies with compensatory mitigation requirements.

(g) The Department may respond to a predischarge notification issued under this Section within 30 days after the Department receives the notice.

Section 35. In lieu fee program and mitigation banking.

(a) The following entities may establish and operate a mitigation bank or in lieu fee program consistent with this Act and rules implementing this Act:

(1) State agencies;

(2) qualified for-profit and non-profit entities; and

(3) units of local government, including, but not limited to, counties, the Metropolitan Water Reclamation District of Greater Chicago (MWRD), soil and water conservation districts, and county forest districts.

(b) Mitigation banks may be established on public or private lands and must be located on sites that possess the physical, chemical, and biological characteristics to support establishment of the desired aquatic resources and functions, such as wetland hydrology.

(c) The requirements for mitigation banks shall include a mitigation bank instrument, long-term management and protection, monitoring requirements, remedial action procedures, reporting requirements, and financial assurances, such as performance bonds.

(d) In lieu fee programs must include an agreement between the in lieu fee sponsor that is similar to a mitigation bank instrument, a time-table, such as a requirement to use funds to design and implement restoration projects within 3 years; accounting requirements, including, but not limited to, watershed-based accounting; monitoring requirements; reporting requirements; and financial assurances. Any agency in lieu fee program must have provisions that protect the integrity of the fund and prevent this funding from being reassigned to other uses.

Section 40. Rulemaking and reporting.

(a) The Department shall:

(1) adopt rules to implement Sections 25 and 30 of this Act within one year after the effective date of this Act, including

(A) rules for the review, issuance, denial, or issuance with conditions of individual permits; and

(B) rules to promulgate, revise, or revoke general permits;

(2) adopt rules to administer and prioritize use of funding from the Wetlands Protection Fund under Section 60 of this Act;

(3) adopt rules to approve mitigation banks and in lieu fee programs under Section 35 of this Act, including:

(A) criteria that an applicant to operate a mitigation or in lieu fee program under Section 35 of this Act shall meet and that are at least as stringent as the U.S. Army Corps of Engineers requirements set out in 33 CFR Part 332;

(B) priority for mitigation banks and in lieu fee programs that restore previously existing wetlands and small streams; and

(C) surety provisions for mitigation banks and in lieu fee programs;

(4) adopt rules within one year after the effective date of this Act to establish the procedures under which a governmental body with a stormwater management program under Section 5-1062 of the Counties Code or under Section 7h of the Metropolitan Water Reclamation District Act shall be recognized to have met the conditions of subsection (b) of Section 55 of this Act;

(5) adopt rules for approval of wetland delineators consistent with subsection (f) of Section 25 of this Act, including recognition of existing county, district, or U.S. Army Corps of Engineers wetland delineator training programs, approval programs, or both; and

(6) adopt any other rules necessary to implement and administer this Act.

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

(c) The Department may consult with the Illinois Water Plan Task Force.

(d) Subject to appropriations, the Department shall do all of the following:

(1) provide a report to the Governor and the Illinois General Assembly regarding implementation of this Act and recommendations, including legislative proposals, to enhance the effectiveness of this Act;

(2) provide recommendations to harmonize these wetlands protections with the Illinois Interagency Wetlands Policy Act of 1989; and

(3) study the impact of federal rollback of protection for waters beyond wetlands, such as ephemeral streams, in Illinois and provide recommendations, including possible legislative proposals, to protect the citizens of Illinois and waters of the State.

Section 45. Appeal of final Department decisions; judicial review.

(a) Any permit applicant who has been denied a permit in whole or in part, and any person who participated in the permit proceeding and who is aggrieved by a decision of the Department to grant a permit in whole or in part, may appeal the decision to the Director within 60 calendar days of the date the permit is granted or denied. In all such appeals, the burden of persuasion shall be on the party appealing the Department's decision.

(b) A person aggrieved by a final decision made under this Act, including parties that have participated in the permit process if a permit was granted, may seek judicial review of the decision under the Administrative Review Law.

Section 50. Investigation; enforcement.

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

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

(c) Any person who violates any provision of this Act, any rule adopted under this Act, any permit issued under this Act, or any term or condition of a permit issued under this Act shall be liable for a civil penalty not to exceed $10,000 per day of violation. Any such penalty shall be made payable to the Wetlands Protection Fund and shall be deposited into that Fund as provided in Section 60. In assessing a penalty, courts may consider any matters of record including:

(1) the duration and gravity of the violation;

(2) the presence or absence of due diligence on the part of the violator in attempting to comply with the Act;

(3) any economic benefits accrued by the violator through the violation;

(4) the likely deterrence effect of the penalty; and

(5) any history on the part of the violator of past violations of this Act.

(d) Violations of this Act, rules adopted under this Act, or permits issued under this Act shall not be deemed criminal offenses.

(e) All final orders imposing civil penalties under this Section shall prescribe the deadline for payment. If such a penalty is not paid within the time prescribed, interest on the penalty shall be charged at the rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act unless the deadline for payment is stayed by a court pending appeal.

(f) The Department may terminate a permit if the permittee violated the terms or conditions of the permit, obtained the permit by misrepresentation, or failed to disclose relevant facts.

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

(h) Any person, other than the Attorney General or the State's Attorney, may file a complaint with the Illinois Pollution Control Board against any person allegedly violating this Act, any rule adopted under this Act, any permit issued under this Act, or any term or condition of a permit issued under this Act, or any relevant Board order. The Board shall have authority to conduct proceedings upon complaints charging such violations of this Act.

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

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

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

Section 55. County and District authority.

(a) Nothing in this Act preempts or denies the right of any governmental body with a stormwater management program under Section 5-1062 of the Counties Code or a district with a stormwater program under Section 7h of the Metropolitan Water Reclamation District Act from controlling or regulating activities in any wetlands within the jurisdiction of the governmental body.

(b) Upon the request of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code or under Section 7h of the Metropolitan Water Reclamation District Act, the Director shall, within 30 calendar days of receiving the written request or, in the case of subsection (c), within 30 calendar days after the effective date of this Act, provide a letter of recognition delegating permitting authority under this Act to the county or district stormwater program. Subject to subsection (c), the letter of recognition shall be provided if the governmental body's stormwater management program:

(1) provides wetlands protections that are consistent with the scope and intent of this Act and that are at least as stringent as those in this Act;

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

(3) is implementing and enforcing its stormwater management program.

(c) Activities within or affecting wetlands that occur within the jurisdiction of a governmental body with a stormwater management program under Section 5-1062 of the Counties Code or under Section 7h of the Metropolitan Water Reclamation District Act and that meet the requirements of paragraphs (1), (2), and (3) of subsection (b) of this Section are deemed to be in compliance with the requirements of this Act, but must meet those county or district stormwater management requirements, at a minimum. This also applies during the period that the Department is considering a county's request under subsection (b), but the requirements of this Act do apply until the county has requested recognition under subsection (b). Lake, Cook, Kane, McHenry, and DuPage Counties and the Metropolitan Water Reclamation District of Greater Chicago are deemed to have requested recognition as of the effective date of this Act, and their programs are deemed to be sufficient to meet the requirements of paragraph (b) of this Section.

(d) The Director may rescind recognition status, or place conditions on recognition status, after notification, a public hearing, and a reasonable opportunity for the county or district to cure the defect, if the defect with regard to subsection (b) is not resolved. However, notwithstanding any other provision of this Section, a county or district delegation will not be revoked or modified if the local program remains at least as stringent as it was on the effective date of this Act.

(e) A governmental body with a stormwater management program under Section 5-1062 of the Counties Code or under Section 7h of the Metropolitan Water Reclamation District Act that has obtained recognition by the Director under this Section shall submit an annual report to the Director.

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

(g) The Department may provide technical assistance and grant funding under Section 60 to governmental bodies with approved programs under this Section.

Section 60. Wetlands Protection Fund.

(a) The Wetlands Protection Fund shall be established as a special fund in the State treasury, to be managed by the Department, separate and distinct from the General Revenue Fund. Any interest earned by the Wetlands Protection Fund shall be credited to the Fund. The purpose of the Wetlands Protection Fund is to further wetlands and small streams protection and management. Its purpose is to supplement, not supplant, existing Department resources. The Wetlands Protection Fund may not be used to pay for compensatory mitigation obligations under this Act.

(b) Pursuant to Section 50, all penalties collected by the Department under this Act shall be deposited into the Wetlands Protection Fund.

(c) The Illinois General Assembly may appropriate additional moneys to the Wetlands Protection Fund to implement this Act.

(d) The Department shall use the moneys in the Wetlands Protection Fund to further wetlands and small streams protection and management. Eligible uses of moneys in the Fund include:

(1) providing technical assistance and grant funding to counties or districts with approved programs under Section 55 to restore, preserve, enhance, protect, or maintain wetlands, streams, and upland buffers, particularly Class I areas or wetlands, waters, and buffers that provide floodwater storage and flood risk reduction;

(2) supplementing other State, local, or private funding for non-compensatory wetlands and small streams restoration, enhancement, preservation and maintenance;

(3) providing matching funds for wetland and stream inventories, mapping, watershed planning and wetland program development grants; and

(4) covering staffing and administrative costs for the Department to implement this Act.

Section 65. Review fee. All inquiries to determine whether or not the proposed activity requires permit authorization by the Department under this Act will be reviewed by the Department free of charge. A permit review fee that is to be set by the Department by rule is required for all permit applications under this Act. The Department shall establish a graduated review fee payment schedule depending on the intensity of required review and the size of the individual project. Accordingly, the highest review fees will be charged for individual permits to authorize major projects. The Department may, by rule, impose a reasonable fee for wetlands delineation and classification.

Section 90. The State Finance Act is amended by adding Section 5.1015 as follows:

(30 ILCS 105/5.1015 new)

Sec. 5.1015. The Wetlands Protection Fund.

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