SB0761eng 94TH GENERAL ASSEMBLY

SB0761 Engrossed LRB094 10143 RSP 40405 b

AN ACT concerning isolated wetlands.

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

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

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

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

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

"Agency" means the Illinois Environmental Protection Agency.

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

"Board" means the Illinois Pollution Control Board.

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

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

"Committee" means the Illinois Isolated Wetlands Advisory Committee.

"Contiguous" means an isolated wetland that is delineated to have greater than 1/10 acre on the affected property and extends beyond the boundary of that property.

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

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

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

"Director" means the Director of the Illinois Environmental Protection Agency.

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

"Floristic quality index" means an index calculated using the Floristic Quality Assessment Method of assessing floristic integrity or quality.

"Incidental fallback" means the redeposit of small volumes of dredged material that is incidental to excavation activity in an isolated wetland when such material falls back to substantially the same place as the initial removal.

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

"Isolated wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, and that are not regulated under the federal Clean Water Act (33 U.S.C. §§ 1251-1387).

"Panne" means wet interdunal flats located near Lake Michigan.

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

"Plant" means any member of the plant kingdom, including seeds, roots, and other parts thereof.

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

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

"Species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

"Threatened or endangered species" means those species that have been designated as threatened or endangered by the Illinois Endangered Species Protection Board pursuant to the Illinois Endangered Species Protection Act and those species that have been designated as threatened or endangered by the U.S. Fish and Wildlife Service pursuant to the Endangered Species Act (35 U.S.C. §§ 1531-1544).

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

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

Section 15. Exemptions.

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

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

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

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

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

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

(6) Unless they are to be conducted in Class I or II Isolated Wetlands, activities for the placement of pilings for linear projects such as bridges, elevated walkways, and power line structures.

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

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

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

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

(11) Avoidance activities such as directional drilling to avoid impacts to isolated wetlands.

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

(13) Wetland management practices on lands that are used primarily for the management of waterfowl, other migratory water birds, or furbearers if such practices took place on the lands prior to the effective date of this Act. This includes vegetation management that may include the use of fire, chemical, or mechanical (hydro-axe, bulldozer, rome disk, or similar equipment) removal of invading woody or herbaceous vegetation to maintain a preferred successional stage. The use of chemicals must be by a certified applicator and the chemicals must be registered for appropriate use.

Clearing or removal of woody vegetation shall be limited to 4 inch dbh or smaller material for the purpose of establishing or maintaining the successional stage of a wetland as a herbaceous wetland vegetated by native moist soil plants or selected wildlife food plants.

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

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

(1) Waste treatment systems, including treatment ponds or lagoons designed to comply with water quality standards of the State or to remediate a site in accordance with an approved Agency program, and former waste treatment systems that have ceased operation less than 33 years before the date the permit application is received by the Agency or that are undergoing remediation in accordance with an approved Agency program.

(2) A drainage or irrigation ditch.

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

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

(5) An incidentally created water-filled depression, unless: (i) the ownership of the property containing the depression has been transferred away from the party who incidentally created the water-filled depression, the ownership transfer occurred more than 12 months prior to the commencement of an otherwise regulated activity, the use of the property has changed from the use that existed when the property was transferred from the party who incidentally created the water-filled depression, and the resulting body of water meets the definition in this Act of a wetland, or (ii) the ownership of the property has not been transferred from the party who created the incidentally created water-filled depression, and the depression was not created more than 33 years before the date the permit application is received by the Agency, or (iii) the incidently created water-filled depression was created by mining activities regulated in accordance with subdivision (c)(7) of this Section.

(6) Stormwater or spill management systems, including retention and detention basins, ditches and channels, and former stormwater or spill management systems that have ceased operation less than 33 years before the date the permit application is received by the Agency or are undergoing remediation in accordance with an approved Agency program.

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

(8) Prior converted cropland.

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

Section 20. Applicability. The requirements of this Act shall apply to all isolated wetlands as that term is defined in this Act. In the event that an isolated wetland ceases to meet this definition because it becomes subject to regulation under the federal Clean Water Act, such wetland shall no longer be subject to the provisions of this Act.

Section 25. Isolated wetland delineation; classification; notification; permits.

(a) The requirements of this Section apply beginning on the effective date of the rules required under Section 40 or one year from the effective date of this Act, whichever occurs earlier. The procedures and regulatory criteria for the delineation, classification, notification, and permitting for isolated wetlands shall be conducted in accordance with the provisions of this Section.

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

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

The Agency shall provide notice to the applicant as to whether a submitted application is complete. Unless the Agency notifies the applicant that the application is incomplete within 15 days of receipt of the application, the application shall be deemed complete. The Agency may request additional information as needed to make the completeness determination. The Agency shall, upon receipt of a complete determination request, provide the person, within 30 days, with a determination as to the existence, location, and surface area of isolated wetlands located on or contiguous to the affected property.

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

If the Agency determines that there are one or more isolated wetlands on or contiguous to the affected property, the person may apply to the Agency for classification of those isolated wetlands.

Any determination of an isolated wetland by the Agency is a final decision for purposes of appeal to the Board.

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

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

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

The Agency shall classify an isolated wetland as:

(1) a Class I Isolated Wetland, if and only if:

(A) the isolated wetland is or encompasses a bog;

(B) the isolated wetland is or encompasses a fen;

(C) the isolated wetland is or encompasses a panne;

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

(E) a threatened or endangered species has been identified in the isolated wetland, provided that an isolated wetland will not be classified as Class I based solely on the presence of an endangered plant if the owner of the isolated wetland authorizes the taking of that plant pursuant to the Illinois Endangered Species Protection Act. "Taking" for the purpose of this item (E) shall have the meaning provided in the Illinois Endangered Species Protection Act and shall include the removal of a plant for transplantation or any other reasonable mitigation measure authorized by the Agency.

(2) a Class II Isolated Wetland, if and only if the isolated wetland:

(A) is or encompasses an ADID site; or

(B) has a Floristic Quality Index (FQI) 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 Agency.

(3) a Class III Isolated Wetland, if and only if the isolated wetland is not a Class I, Class II, or a Class IV wetland.

(4) a Class IV Isolated Wetland, if and only if:

(A) the wetland is not a Class I or Class II Isolated Wetland, and

(B) the total size of the isolated wetland, including contiguous areas, is less than one-half acre.

Any classification of an isolated wetland by the Agency is a final decision for purposes of appeal to the Board.

(d) Subject to the provisions of Section 35 regarding general permits, no person may conduct or cause to be conducted a regulated activity within or affecting an isolated wetland in such a manner that the biologic or hydrologic integrity of the isolated wetland is impaired within the scope of this Act, except in accordance with the terms of an individual permit issued by the Agency or an authorization to proceed as applicable under this Section.

(1) Class I.

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

(B) No permit under this item (1) may be issued by the Agency without a public notice and the opportunity for a public hearing being afforded. In the event that an affected party requests a public hearing, a public hearing must be held.

(C) A permit issued under this subdivision (d)(1) shall require the mitigation of wetland losses at a ratio provided by the Agency, but not to exceed 3:1. Authorized wetland losses shall be mitigated in kind and within the same watershed as the impacted area, restoring, to the maximum degree practicable as determined by the Agency, both the type and functions of the isolated wetland that will be affected by the regulated activity. When the type and functions of the isolated wetland that will be affected by the activity cannot be adequately restored to the maximum degree practicable by the ratio allowed in this paragraph (C), the Agency may, on a case-by-case basis, increase this ratio based on site-specific criteria to be developed by rules. Such mitigation shall be consistent with rules adopted by the Board and may consist of actual replacement or participation in a mitigation banking program or other compensation program approved by the Agency.

(2) Class II.

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

(B) No permit under this item (2) may be issued by the Agency without a public notice and the opportunity for a public hearing being afforded. In the event that an affected party requests a public hearing a public hearing must be held.

(C) A permit issued under this subdivision (d)(2) shall require the mitigation of wetland losses at a ratio provided by the Agency, but not to exceed 2.5:1. Authorized wetland losses shall be mitigated in kind and within the same watershed as the impacted area, restoring, to the maximum degree practicable as determined by the Agency, both the type and functions of the isolated wetland that will be affected by the regulated activity. When the type and functions of the isolated wetland that will be affected by the activity cannot be adequately restored to the maximum degree practicable by the ratio allowed in this paragraph (C), the Agency may, on a case-by-case basis, increase this ratio based on site-specific criteria to be developed by rules. Such mitigation shall be consistent with rules adopted by the Board and may consist of actual replacement or participation in a mitigation banking program or other compensation program approved by the Agency.

(3) Class III.

(A) A permit to conduct a regulated activity affecting a Class III isolated wetland within the scope of this Act shall be granted if documentation is submitted demonstrating that a minimization plan to minimize or alleviate the impact on the isolated wetland has been developed and applied as reasonably appropriate.

(B) No permit under this item (3) may be issued by the Agency without a public notice and the opportunity for a public hearing being afforded. In the event that an affected party requests a public hearing, the Agency may, at its discretion, hold a public hearing on the proposed regulated activity.

(C) A permit issued under this subdivision (d)(3) shall require the mitigation of wetland losses at a ratio provided by the Agency, but not to exceed 1:1. Authorized wetland losses shall be mitigated in kind and within the same watershed as the impacted area, restoring, to the maximum degree practicable as determined by the Agency, both the type and functions of the isolated wetland that will be affected by the regulated activity. Such mitigation shall be consistent with rules adopted by the Board and may consist of actual replacement, participation in a mitigation banking program or other compensation programs approved by the Agency, education or research programs, or other appropriate programs.

(4) Class IV.

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

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

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

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

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

Failure of the Agency to respond to a notification within the 30 day period shall be deemed an authorization to proceed.

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

(e) Within 15 days of the receipt of a permit application, the Agency shall determine if the application is complete. To be deemed complete, an application must provide all information, as requested in Agency application forms, sufficient to evaluate the application. This information shall include, at a minimum: (1) a sketch that reasonably depicts the area that will be affected by the regulated activity, including wetland and water boundaries for the areas affected and the existing land uses and structures; (2) a description of the proposed activity, including its purpose; (3) a description of any public benefit to be derived from the proposed project; and (4) the names and addresses of adjacent landowners as determined by the current tax assessment rolls. The information shall also include a wetland delineation made in accordance with the COE Wetlands Delineation Manual, Technical Report Y-87-1.

The Agency application forms shall be finalized and made available prior to the date on which any application is required. The Agency must provide notice to the applicant as to whether a submitted application is complete. Unless the Agency notifies the applicant that the application is incomplete within 15 days of receipt of the application, the application shall be deemed complete. The Agency may request additional information as needed to make the completeness determination. The Agency may, to the extent practicable, provide the applicant with a reasonable opportunity to correct deficiencies prior to a final determination of completeness. Within 90 days from the receipt of a complete application for permit, the Agency shall issue, deny, or issue with conditions a permit. If a public hearing is held on the application, however, this period shall be extended by 45 days.

(f) The Agency shall not issue a permit pursuant to this Section unless the Agency has certified that the proposed activity will not cause or contribute to a violation of any State water quality standard. The Agency shall be deemed to have certified that the proposed activity will not cause or contribute to a violation of any State water quality standard if it has not notified the applicant in writing within 80 days of the filing of the application that the proposed activity will violate a State water quality standard, unless the Agency has requested that the applicant supply more information relevant to assessing the water quality impacts of the proposed activity.

(g) Any person may submit concurrent requests for determination and delineation, classification, and a permit application or provision of notification. The Agency shall act on such combined requests concurrently in accordance with expedited permitting procedures proposed by the Agency and adopted by the Board.

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

(i) The Board shall adopt rules to carry out the provisions of this Section in accordance with Section 40 of this Act.

Section 30. Surety. The Board 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 the conditions and limitations of a permit.

Section 35. 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 Agency 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 COE, in effect on the date of the enactment of this Act, are adopted as general permits covering regulated activities subject to this Act.

(c) The Agency may adopt general permits covering other activities that would be subject to the same permit limitations and conditions, if it determines that the activities in such 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 Agency may prescribe best management practices for any general permit issued under this Section. The Agency shall consider any optional mitigation proposed by an applicant in determining whether the net adverse environmental effects of a proposed regulated activity are minimal.

The Agency must adopt a general permit for:

(1) the construction or maintenance of access roads for utility lines, substations, or related equipment or facilities; and

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

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

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

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

Section 40. Illinois Isolated Wetlands Advisory Committee; duties; rules.

(a) There is hereby established an Illinois Isolated Wetlands Advisory Committee, which shall consist of 13 members appointed by the Governor. The Committee shall include 5 members selected from recommendations provided by the following organizations:

(1) the Illinois State Chamber of Commerce,

(2) the Illinois Association of Realtors,

(3) the Chemical Industry Council of Illinois,

(4) the American Council of Engineering Companies of Illinois,

(5) the Illinois Association of Aggregate Producers,

(6) the Home Builders Association of Illinois,

(7) the Illinois Energy Association,

(8) the Illinois Manufacturers' Association,

(9) the National Solid Waste Management Association, and

(10) the Illinois Farm Bureau.

The Committee shall include 3 members selected from the membership of environmental and conservation groups operating in this State.

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

The Committee shall include 3 other members as determined by the Governor. Members of the Committee may organize themselves as they deem necessary and shall serve without compensation.

(b) The Committee shall review, evaluate, and make recommendations (i) regarding State laws, rules, and procedures that relate to this Act and (ii) relating to the State's efforts to implement this Act.

(c) Within 6 months after the effective date of this Act, the Agency, after consideration of the recommendations of the Committee, shall propose to the Board any rules required by this Act prescribing procedures and standards for its administration. Within 6 months of the proposal of such rules to the Board, the Board shall adopt, pursuant to Sections 27 and 28 of the Environmental Protection Act and any rules adopted thereunder, rules that are consistent with this Act. Nothing in this Act shall preclude, at any time, the recommendation, proposal, or adoption of any other rules deemed necessary for the orderly implementation of this Act.

Section 45. Appeal of final Agency decision; judicial review.

(a) If the Agency rejects a proposed determination and delineation, refuses to approve a classification, approves a classification other than that supplied by the applicant, or refuses to grant or grants with conditions a permit under Sections 25 or 35 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency. However, the 35-day period for petitioning for a hearing may be extended by the applicant for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the Agency within the initial period. The applicant and the Agency must jointly file a request for extension within 35 days after the date of service of the Agency's final decision. The joint request may seek an appeal period not exceeding 125 days from the date of service of the Agency's final decision to file a petition for review under this Section. The Board shall publish notice in a newspaper of general circulation in the county where the regulated activity at issue is located for a period of 21 days. The Agency shall appear as respondent in the hearing. At the hearing the rules prescribed in Section 32 and subsection (a) of Section 33 of the Environmental Protection Act shall apply and the burden of proof shall be on the petitioner.

(b) The applicant or the Agency, when adversely affected by a final order or determination of the Board, may obtain judicial review by filing a petition for review within 35 days from the date that a copy of the order or other final action sought to be reviewed was served upon the party affected by the order or other final Board action complained of, under the provisions of the Illinois Administrative Procedure Act, as amended, and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court.

Section 50. Investigation; enforcement.

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

(b) The Illinois Environmental Protection Agency shall conduct investigations and pursue enforcement of alleged violations of this Act, any regulation promulgated hereunder, or any permit granted by the Agency, or any term or condition of any such permit as prescribed in Section 30 and subsections (a), (b) and (c) of Section 31 of the Environmental Protection Act and any rules adopted thereunder.

(c) The Agency shall have the duty to administer the permit and certification systems that may be established by this Act or by rules adopted hereunder.

(d) In hearings before the Board to enforce provisions of this Act, the burden shall be on the Agency to show either that the respondent has violated or threatened to violate a provision of this Act or a rule adopted hereunder, or a permit or a term or condition thereof. If such proof has been made, the burden shall be on the respondent to show that compliance with the Board's rules would impose an arbitrary or unreasonable hardship.

(e) Hearings in enforcement proceedings shall be held in accordance with Section 32 of the Environmental Protection Act and any rules adopted under this Act.

(f) Board determinations and orders shall be made in accordance with Section 33 of the Environmental Protection Act and any rules adopted under this Act.

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

(h) Any person who violates any provision of this Act or any rule adopted hereunder, or any permit or term or condition thereof, or who violates any determination or order of the Board pursuant to this Act, shall be liable for a civil penalty not to exceed $10,000 per day of violation; these penalties may, upon order of the Board or a court of competent jurisdiction, be made payable to the Environmental Protection Trust Fund, to be used in accordance with the provisions of the Environmental Protection Trust Fund Act.

(i) In determining the appropriate civil penalty to be imposed under this Section, the Board is authorized to consider any matters of record in mitigation or aggravation of penalty, including but not limited to the following factors:

(1) The duration and gravity of the violation.

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

(3) Any economic benefits accrued by the person because of delay in compliance with requirements.

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

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

(j) Violation of any provision of this Act or any rule adopted hereunder, or any permit or term or condition thereof, or any violation of any determination or order of the Board pursuant to this Act, shall not be deemed a criminal offense.

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

Section 55. Fees.

(a) Any person seeking a permit, seeking coverage under a general permit, or filing a notification of activities to be conducted on a Class IV isolated wetland from the Agency shall pay a fee to the Agency at the time of filing the application or notification. The following fee amounts shall apply:

(1) The fee for a Class I or II isolated wetland is $400 if the site is less than 1 acre; $500 if the site is between 1 and 10 acres; $750 if the site is between 10 and 50 acres, and $1,000 if the site is more than 50 acres. In the event that the Agency is required to review a mitigation plan for a site, an additional fee is required at the time the applicant is notified that such a review is required. The additional mitigation review fee shall be $750 if the affected isolated wetland is less than 0.5 acre; $1,000 if the affected isolated wetland is between 0.5 and 2 acres; $1,250 if the affected isolated wetland is between 2.0 and 5.0 acres; and $1,500 if the affected isolated wetland is greater than 5.0 acres.

(2) The fee for a Class III isolated wetland shall be calculated at 50% of the fee charged to a Class I or II isolated wetland.

(3) The fee for filing a notice of intent to be covered under a general permit is $200.

(4) The fee for filing a notification of activities to be conducted on a Class IV isolated wetland is $150.

(b) The Agency shall establish procedures for the collection of fees required under this Act.

(c) There is hereby created in the State treasury a special fund to be known as the Isolated Wetlands Management Fund. There shall be deposited into the Fund all moneys received from the fees collected under subsection (a) of this Section. Pursuant to appropriation, moneys from the Fund shall be allocated in amounts deemed necessary to implement this Act.

(d) A county that has delegated functions to it under subsection (d) of Section 60 may establish the fees it deems necessary in lieu of using the fee structure in subsection (a).

Section 60. Home rule; delegation of authority.

(a) A home rule unit may not regulate isolated wetlands except as provided in subsections (b) and (c) of this Section. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(b) If a county government has implemented an isolated wetlands regulation program prior to March 1, 2003, the county is authorized to regulate isolated wetlands until July 1, 2007. Beginning on July 1, 2007, the limitation in subsection (a) of this Section applies to that county.

(c) The provisions of any ordinance or resolution adopted before, on, or after the effective date of this Act by a unit of local government that imposes restrictions or limitations on the identification, classification, notification, permitting, or regulatory criteria for isolated wetlands are invalid, except as authorized by subsection (d) of this Section, and all those existing ordinances and resolutions are declared null and void. This subsection shall not be deemed to be a limitation on any legitimate statutory authority of any unit of local government to regulate flood control or stormwater management, so long as those regulations are not more stringent than the regulations adopted under Section 40 of this Act.

(d) The Agency may enter into written delegation agreements with any county government, under which it may delegate all or portions of its inspecting, investigating, and enforcement functions under this Act. In cases where a county government has implemented an isolated wetlands regulation program prior to March 1, 2003, the Agency must, upon the receipt of a request for delegation by such county government, delegate all or portions of its functions under this Act, as requested. The delegation agreements must, at a minimum, require that:

(1) All of the administrative procedures and operations performed by the county government shall be performed in exclusive accordance with the provisions of this Act and with rules adopted in accordance with Section 40 of this Act.

(2) The general permits issued under Section 35 of this Act shall be administered by the county government for those activities covered under the general permits.

(3) At the time of filing a permit application or notification with the county government, the person shall file a certification with the Agency attesting to such filing.

(4) Within 30 days after the county government takes final action on a permit or notification, a copy of the permit or notification shall be filed with the Agency.

(5) Any final action taken by a county government under the delegation agreement may be appealed in accordance with the provisions of Section 45 of this Act.

(e) Notwithstanding any other provision of law to the contrary, no unit of local government shall be liable for any injury resulting from the exercise of its authority pursuant to a delegation agreement under this subsection, unless the injury is proximately caused by the willful or wanton negligence of an agent or employee of the unit of local government, and any policy of insurance coverage issued to a unit of local government may provide for the denial of liability and the nonpayment of claims based upon injuries for which the unit of local government is not liable pursuant to this subsection.

Section 65. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 70. The State Finance Act is amended by adding Section 5.640 as follows:

(30 ILCS 105/5.640 new)

Sec. 5.640. The Isolated Wetlands Management Fund.

Section 99. Effective date. This Act takes effect upon becoming law.