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ALEC Wetlands Mapping and Protection Act

ALEC Wetlands Mapping and Protection Act

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Published by: ALEC Watch on Jul 13, 2011
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Part VII: Environment, Energy and Natural Resources
n
WETLANDS
MAPPING AND PROTECTION ACT
SummaryLALEC’s model Wetlands Mapping and Protection Act is designed to permit a state to define the procedures,guidelines and administration of a wetlands program for the state. Key components of the bill include: awetlands mapping program and classification of wetlands,Model Legislation
{Title, enacting clause, etc.}Section 1. {Title}
This act shall be known and may be cited as the Wetlands Mapping and Protection Act.
Section 2. {Definitions.}
The following words and phrases when used in this Act shall have the meaninggiven to them in this section unless the context clearly indicates otherwise:(A) “Department.” The department of {insert appropriate state agency).(B) “Director.” The {insert Director or Secretary) of the department of {insert appropriate state agency].(C) “Fill Material.” Soil, rocks, sand, waste of any kind, or any other material which displace soil or water orreduces water retention potential.(D) “Minor drainage.” Includes ditching and tiling for the removal of excess soil moisture incidental to theplanting, cultivating, protecting, or harvesting of crops or improving the productivity of land in establisheduse for agriculture, horticulture, silviculture, or lumbering.(E) “Municipality.” A city, village, township, county or any other legally recognized municipal entity.(F) “Person.” An individual, sole proprietorship, partnership, corporation, association, municipality, thisstate, and instrumentality or agency of this state, the federal government, or an instrumentality or agency ofthe federal government, or other legal entity.(G) “State wetlands.”Those wetlands which are owned by, controlled by, or under the exclusivejurisdiction of the state or a state agency.(H) “Wetlands.” Those areas that are inundated or saturated by surface water or groundwater at a frequencyand duration sufficient to support, and that under normal circumstances do support, a prevalence ofvegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetationand which have a predominance of hydric soils.
Section 3. {Wetland Mapping and Classification.}
(A) Wetlands inventory.(1) Identification. No later than three (3) years after the effective date of this act, the department shallcomplete an inventory of all wetlands within the state identifying each wetland according to theclassification system established in this section.All state and local agencies are hereby directed tocooperate with the department in developing the inventory. At its discretion, the department maycontract with a qualified public, non-profit, academic or other public or private organization to helpprepare the inventory and related county maps.(2) Mapping. The inventory shall be placed on maps setting forth the boundaries of each wetland asaccurately and at a scale sufficient to inform property owners, the public and the department of theirpresence which would meet the department’s permit application requirements for delineating
Volume II: Sourcebook of American State Legislation 1995
29
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-Part VII: Environment, Energy and Natural Resources
n
wetlands. Wetland inventory maps shall be prepared for each county in the state. The departmentshall make the maps available to the public as described in this section and in a central repository.(3) Hearing and public notice.Upon the completion of each county wetland inventory map, thedepartment shall hold a public hearing in each county in order to afford an opportunity for any personto propose additions or deletions from the inventory map. The department shall give written notice ofsuch hearing to each owner of record, shown on the latest completed tax assessment rolls, of landdesignated as wetlands on the inventory map, by certified mail at least 30 days prior to the hearing.Notice to the property owner shall include notice of the hearing or hearings, information explainingthe area designated and its classification, and an indication of where more information and the draftinventory map is available for review. Failure to give notice shall not change any rights the propertyowner has under this act. Copies of the inventory map shall be made available to the public forinspection at least 30 days prior to the hearing.The department shall also publish a notice of thehearing and the availability of the map in at least two newspapers of general circulation within thecounty and in the {state bulletin) giving at least 30 days notice of the hearing.(4) Final map. After considering the testimony given at the public hearing and any other facts whichmay be deemed pertinent, the department shall prepare a final wetlands inventory map for the county.A copy of the final map shall be filed in the office of the clerk of each county and with eachmunicipality within that county. In addition, the department shall also give notice by certified mail toeach property owner owning property that has been designated a wetland. Notice of the availability ofthe final wetlands inventory map shall also be published in at least two newspapers of generalcirculation within the county and in the {insert state bulletin}.(5) Updates. The department shall periodically update, correct and otherwise maintain the wetlandsinventory maps and make them available to the public. Notice of updates to the wetlands inventorymaps shall be made in the same manner as described in subsections (A) (3) and (A) (4) of this section.(6) Detailed delineations.Property owners or a local government may request the department todelineate a wetland boundary area more precisely under procedures established in subsection (C) ofthis section Any such delineation or wetlands delineated through the permit application process shallbe automatically considered part of the inventory map and physically added to the appropriate countymap as soon as practicable. Notice of the delineation shall be given to each county and municipalityaffected by the change.(7) Petition. The department shall establish a procedure for wetland property owners to petition thedepartment to change the classification of wetlands they own. The process shall include:(a) Submission of information substantiating the request for the change by the property owner,such as a change in the condition or characteristics of the wetland that cause it to no longermeet the criteria established in subsection (B) of this section.(b) Providing notice of the proposed change and an opportunity for comment to the county andmunicipality, in a newspaper of general circulation in the area in which the wetland is located,for a period of 30 days.(c) Publication by the department of a notice in the (state bulletin) of the petition, includingthe location of the wetland and any other pertinent information, for a period of 30 days.(d) The department shall have 15 days to determine if the petition is complete. Within 60 daysof the determination that the petition is complete, the department shall issue its decision.(e) Appropriate changes shall be made to the wetlands inventory map issued by the departmentwithout undergoing additional public review.(8) Affect. The final wetlands inventory map issued by the department shall be the wetlandsdelineation upon which the department or any local government pursuant to the (planning code)makes decisions concerning regulated activities affecting wetlands. When a final wetlands inventory
Volume II: Sourcebook of American State Legislation 1995 30
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Part VII: Environment, Energy and Natural Resources
n
map is issued, the department or any local government may not prosecute any person for violations ofthis act that relied on the wetlands inventory map to undertake any regulated activity. Only changesmade as a result of petitions filed under subsection (7), letters of interpretation issued pursuant tosubsection (C), or wetlands identified through the review of individual permit applications wouldsupersede this subparagraph.(9) Incomplete mapping. In areas where the department fails to complete the wetlands inventory mapby the deadline in subsection(A) (l), the department or its certified agents shall provide applicants forpermits or landowners with a free letter of interpretation as outlined in subsection (C) until theinventory map is finalized.(10) Property access. The department shall have access to property at reasonable times for the purposeof completing the inventory required by this section. If access is denied by the property owner, theprovisions of subsection (C) and paragraphs (8) and (9) of this subsection and Section 6 and Section 7would not apply to the property owner denying access.(B) Wetlands classification system.General.- The department shall use the following classification system for wetlands which distinguishesamong wetlands of exceptional value, intermediate value and ordinary value in reviewing regulatedactivities.(1) Exceptional value. Wetlands of exceptional value exhibit any of the following characteristics:(a) Wetlands which serves as habitat for fauna or flora listed as “threatened” or “endangered”under the Endangered Species Act of 1973 (7 U.S.C.A.Section 136; 16 U.S.C.A.Sections4601-9,46Ok-1, 668dd, 715i, 715a, 1362, 1371, 1372, 1402 and 1531-1543), and
{insertappropriate state statute).
(b) Wetlands -that are hydrologically connected to wetlands that are identified undersubparagraph (a) or that are necessary to maintaining the habitat of the threatened orendangered species within the wetlands identified under subparagraph (a).(c) Wetlands that are demonstrated to be necessary to maintain the quality or quantity ofexisting public or private drinking water supplies, including both surface and groundwatersources.(d) Wetlands located in areas designated by the department as “natural” or “wild” areas withinState forest lands, wetlands located in areas designated as Federal Wilderness areas under theWilderness Act (116 U.S.C.A.Section 113 -l 136) or (other Federal wilderness statutes) orwetland located in areas designated as National Natural Landmarks by the Secretary of theInterior under the Historic Sites Act of 1935 (16 U.S.C.A.Section 461-467).(e) Any wetland created to replace or enhance the functions of an existing wetland as a resultof a permit decision by the department or as a result of an action by the Trust under this act.(2) Intermediate value. Wetlands that cannot be classified either exceptional value or ordinary value.(3) Ordinary value. Wetlands having the following characteristics, unless they have the characteristicsoutlined in subsection (B) (1) (a) of this section:(a) Wetlands constructed for the purpose of treating acid mine drainage, sewage or otherwaste, if the wetland was part of a treatment facility constructed under a valid permit issued bythe department under the
{insert appropriated state or federal statute).
(b) Wetlands formed in man-made storm water management, drainage or flood controlfacilities or erosion and sedimentation control facilities.(c) Wetlands formed in any existing man-made field drainage systems, including ponds,constructed for cropping, management or maintenance operation for crop production or otheragricultural activity.
Volume II: Sourcebook of American State Legislation 199531

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