Bill Text: IL HB5386 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Creates the Wetlands and Small Streams Protection Act to restore protections for wetlands and small streams that were formerly protected from pollution and destruction by the Clean Water Act. Includes provisions concerning: exemptions; wetlands delineation, classification, notification, permits and veto; general permits; appeal of final decisions made by the Department of Natural Resources and judicial review; investigation and enforcement; and county authority. Creates the Wetlands and Small Streams Advisory Committee and establishes duties and rules for the Committee. Creates the Wetlands and Small Streams Protection Fund. Provides for permit review fees. Defines terms. Makes conforming changes in the State Finance Act and the Illinois Environmental Protection Act. Effective immediately.

Spectrum: Partisan Bill (Democrat 47-0)

Status: (Introduced) 2024-05-02 - Added Chief Co-Sponsor Rep. Lilian Jiménez [HB5386 Detail]

Download: Illinois-2023-HB5386-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB5386 Introduced , by Rep. Anna Moeller SYNOPSIS AS INTRODUCED:
New Act
30 ILCS 105/5.1015 new
Creates the Wetlands and Small Streams Protection Act to restore protections for wetlands and small streams that were formerly protected from pollution and destruction by the Clean Water Act. Provides provisions concerning: exemptions; wetlands delineation, classification, notification, permits and veto; general permits; appeal of final decisions made by the Department of Natural Resources and judicial review; investigation and enforcement; and county authority. Creates the Wetlands and Small Streams Advisory Committee and establishes duties and rules for the Committee. Creates the Wetlands and Small Streams Protection Fund. Provides for permit review fees. Defines terms. Makes conforming changes in the State Finance Act and the Illinois Environmental Protection Act. Effective immediately.
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A BILL FOR
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AN ACT concerning transportation.
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
Wetlands and Small Streams 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 the original
acres remain.
(2) With the significant loss in acreage, a corresponding
loss in the functional values and benefits that wetlands
provide has occurred.
(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. 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.

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(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, forage, 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

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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, with weather patterns becoming
more extreme and less predictable, heightens 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 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 a Supreme Court decision created uncertainty
about federal protections for some "isolated" wetlands, the
General Assembly passed the Interagency Wetland Policy Act 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 Clean Water Act protections for many waters

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of the State, including wetlands, such as bottomland hardwood
forested wetlands that are separated from the Illinois River
by levees that provide significant flood control protections.
(10) It is important to adopt protections under State law
to protect Illinois waters from pollution and destruction to
reinstate protections lost by rolling back the scope of Clean
Water Act protections.
Section 10. Definitions.
"Advanced Identification sites" or "ADID" means aquatic
sites that have 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 C.F.R. Part 230.80 as of the date of enactment 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 currently used for
normal farming or ranching activities, consistent with Section
404(f) of the Clean Water Act.
"Avoidance" means any action taken in a manner such that a
regulated activity will not occur, consistent with the
404(b)(1) Guidelines.
"Bog" means a peat-accumulating wetland that has no

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significant inflows or outflows and supports acidophilic
mosses, particularly sphagnum, resulting in highly acidic
conditions.
"Bottomland hardwood" means forested riverine floodplain
forest in the 100-year flood plain of Illinois rivers and
streams which are among the most productive and ecologically
important wetlands in the world, providing wildlife habitat,
flood control, erosion prevention, carbon sequestration,
wildlife corridors, and water quality benefits.
"Committee" means the Wetlands and Small Streams Advisory
Committee for purposes of this Act.
"Contiguous area" means the portion of a wetland or small
stream that extends beyond the property boundary of the
affected property.
"Corps of Engineers" or "COE" 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 issued prior to May,
2023.
"Cypress swamp" means forested, permanent, or
semi-permanent bodies of water, with species assemblage's
characteristic of the Gulf of Mexico and Southeastern Coastal
Plains and including bald cypress, which are found in extreme
southern Illinois.

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"Department" means the Illinois Department of Natural
Resources.
"Director" means the Director of the Illinois Department
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 Department,
including Army Corps of Engineers nationwide permits,
consistent with Section 40 of this Act 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.
"High-Quality Aquatic Resources (HQAR)" means high quality
aquatic resources (HQAR) consistent with the guidelines of the
Chicago District of the U.S. Army Corps of Engineers.
"Individual permit" means a permit issued by the
Department pursuant to 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 the Illinois
Department of Natural Resources or a Department approved In
Lieu Fee Program made by an applicant to satisfy a mitigation

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requirement for Class III in accordance with this Act and
implementing regulations.
"Maintenance" means work to repair and keep in good
working order existing structures in wetlands and streams,
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
modifications may be eligible to utilize Nationwide Permit 3,
Maintenance.
"Minimization" means, consistent with federal Section
404(b)(1) Guidelines and this Act, reducing as much as
practicable the adverse environmental impact of an unavoidable
regulated activity.
"Mitigation" means, for purposes of this Act, 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. Wetlands creation is restricted

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to areas that are currently non-wetland.
"Nationwide permit" means a nationwide permit issued by
the U.S. Army Corps of Engineers as of the date of enactment of
this Act.
"Panne" means wet interdunal flats located near Lake
Michigan and includes dune and swale wetlands.
"Permit" means a written authorization issued by the
Department of Natural Resources pursuant to this Act and
implementing regulations. Permit includes "general permits" as
well as "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 converted wetland where
the conversion occurred prior to December 23, 1985, an
agricultural commodity has been produced at least once before
December 23, 1985, remains available for agricultural
commodity production, and as of December 23, 1985, the
converted wetland 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

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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).
"Regulated activity" means the discharge of dredged or
fill material from a point source into a wetland or small
stream subject to this Act.
"Small stream" means first-order streams, including
intermittent, ephemeral, and headwater streams and
tributaries. "Small stream" does not include Waters of the
United States.
"Threatened or endangered species" means those species
that have been designated as threatened or endangered pursuant
to the Illinois Endangered Species Protection Act and those
species that have been listed as threatened or endangered
pursuant to federal law under the Endangered Species Act.
"Upland" means non-wetland, dry land.
"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.
"Wetland mitigation bank" means a site where wetlands have
been restored, created, enhanced, or, in exceptional

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circumstances, preserved expressly for the purpose of
providing mitigation for impacts to wetlands and that has been
approved by the Department or the Corps of Engineers in
accordance with the process established in 33 C.F.R. 332.8 and
40 C.F.R. 230.98 and Department regulations implementing this
Act.
Section 15. Exemptions.
(a) Consistent with Section 404(f) of the Clean Water Act,
as long as they do not have as their purpose bringing a wetland
or stream into a use to which it was not previously subject and
do not entail discharge of toxic pollutants, the following 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

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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 or small stream. 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

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maintained, in accordance with best management practices,
to assure that flow and circulation patterns and chemical
and biological characteristics of the wetland or small
stream are not impaired, that the reach of the wetland or
small stream is not reduced, and that any adverse effect
on the aquatic environment will be otherwise minimized.
(6) Except for Class I wetlands and small streams,
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 or small stream are not impaired, that the
reach of the wetland or small stream 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 or streams 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 or
streams for purposes of this Act:
(1) Waste treatment systems, including treatment ponds
or lagoons designed to meet the requirements of the Clean
Water Act and comply with State water quality standards.

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(2) Prior converted cropland.
(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.
(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."
(8) Swales and erosional features, including gullies,
rills, and small washes, characterized by low volume,
infrequent, or short duration flow.
(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 Agency is in compliance

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with the Interagency Wetland Policy Act of 1989.
Section 20. Applicability. The requirements of this Act
apply to all wetlands and small streams as those terms are
defined in this Act. If a wetland or small stream 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 Clean Water
Act.
Section 25. Regulated activities; individual and general
permits; small stream and wetland classification; mitigation;
delineation; veto authority.
(a) No person may discharge dredged or fill material from
a point source into a wetland or small stream protected by this
Act except in accordance with the terms of an individual or
general permit issued by the Department pursuant to this
Section or Section 40 of this Act.
(b) Regulated activities in Class I wetlands and small
streams shall only be authorized through individual permits
issued by the Department under this Act. Regulated activities
in Class II wetlands and small streams may be authorized under
either an individual or general permit issued by the

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Department in accordance with this Act. Regulated activities
in Class III wetlands and small streams can be authorized
under general permits unless the Department notifies the
applicant within 30 days after receipt of a predischarge
notification that the regulated activity will result in a
significant negative impact on State water quality. In such
instances, an individual permit will be required.
(c) Wetlands and small streams 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 pursuant to subsection (3);
(D) is habitat for a threatened or endangered
species listed under State or federal law;
(E) has a Floristic Quality Index which 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

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(G) is a High-Quality Aquatic Resource.
(2) The Department shall classify a non-Class I
wetland as Class II if the wetland, including 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
Class III.
(3) The Department may, in consultation with Illinois
Emergency Management Agency and Office of Homeland
Security, the Federal Emergency Management Agency or local
authorities designate a wetland as Class I due to
important flood protection services protecting human life
and property if the wetland is no longer protected under
the Clean Water Act.
(4) The Department shall classify a small stream as
Class I if the stream:
(A) has been designated a National Wild and Scenic
River, Study River, or Riverway;
(B) has been designated an Outstanding National
Resource Water;
(C) has been designated an Outstanding State
Resource Water pursuant to 35 Ill. Adm. Code 303.206;
(D) serves as drinking water supply;
(E) provides habitat or spawning area for rare or
ecologically significant fish;
(F) has been rated A for Diversity or Integrity or
mapped as Biologically Significant under the

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Department's Integrating Multiple Taxa in a Biological
Stream Rating System;
(G) is a District Designated Water; or
(H) contains significant mussel beds as determined
in conjunction with the United States Fish and
Wildlife Service.
(5) The Department shall classify a non-Class I small
stream as Class II if the stream:
(A) is located within lands under public ownership
or holdings;
(B) has been rated B for diversity or integrity
under the Department's Integrating Multiple Taxa in a
Biological Stream Rating System;
(C) is adjacent to an approved mitigation bank or
mitigation site;
(D) is within 1 mile upstream or downstream of
primary priority reaches;
(E) is designated as enhanced for dissolved oxygen
under 35 Ill. Adm. Code 302.206; or
(F) is longer than 100 linear feet.
(5) The Department shall classify all small streams
that are not Class I or Class II as Class III.
(d) 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

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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.
(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.
(3) Discharges impacting Class III wetlands shall be
mitigated through either participation in an approved
wetland mitigation bank or an approved in-lieu fee

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program, unless the Department for good cause objects. The
mitigation ratio shall be 1:1 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.
(4) Discharges impacting Class I small streams shall
be mitigated through either on site mitigation or off-site
mitigation at an approved stream 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 stream 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.
(5) Discharges impacting Class II small streams shall
be mitigated through either on site mitigation or off-site
mitigation at an approved stream 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 stream that will be affected
by the regulated activity. The mitigation ratio shall be

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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.
(6) Discharges impacting Class III small streams shall
be mitigated through either participation in an approved
stream mitigation bank or an approved in-lieu fee program,
unless the Department for good cause objects. The
mitigation ratio shall be 1:1 for compensation through an
approved stream 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.
(e) The Agency may override the Department's decision to
issue a permit under this Act by denying, restricting or
otherwise limiting the scope of the permit in order to prevent
violations of Illinois water quality standards, unacceptable
adverse impacts to municipal water supplies, shellfish beds
and fishery areas including spawning and breeding areas,
wildlife, or recreational areas. Before making such
determination, the Agency shall consult with the Department.
The Agency shall set forth in writing and make public its
findings and reasons for making any determination under this
subsection.
(f) Individuals may request a wetland delineation and
classification from the Department, but are not required to do

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so. However, failure to do so is not a defense against
violation of this Act. The person seeking a wetland
delineation, classification, or both shall provide the
Department with sufficient information to render a
determination. The Department shall notify the person within
15 days of receipt of the request if the request is incomplete.
The Department shall, upon receipt of a complete request,
provide the person with a determination within 30 days. The
Department shall utilize the Corps of Engineers Wetlands
Delineation Manual. Any determination under this subsection is
a final decision for purposes of appeal under Section 55 of
this Act. The Department shall honor delineations by the Corps
of Engineers or by Corps of Engineers approved agencies.
(g) 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 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 onsite
waste disposal; (iv) a description of any public benefit to be
derived from the proposed project; and (v) the names and

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addresses of adjacent landowners as determined by the current
tax assessment rolls. The Department shall notify the
applicant within 20 days if the permit application is
incomplete and provide a reasonable time for the applicant to
correct deficiencies in the permit application. Within 90 days
of receipt of a complete permit application, the Department
shall either issue, deny 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 days. A person may submit
concurrent requests for delineation, classification and permit
application.
(h) 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 will be deemed to have certified that the
proposed activity will not cause or contribute to a violation
of a State water quality standard if it has not issued a

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certification or a denial to issue a certification within 80
days of the filing of a complete permit application under this
Section.
(i) Upon request by an applicant, the Department is
authorized to 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 which 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 except for activities in Class I wetlands
or small streams.
(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
except activities in Class I wetlands or Class I streams.
Notwithstanding the foregoing, all such permits will include a

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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, 5 ILCS 100/, 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 impact that exceed 1/10 of an acre.
(d) The Department must 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;

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(2) Activities for the purpose of preserving and
enhancing aviation safety or to prevent an airport hazard;
and
(3) Conservation activities, such as habitat
restoration and fish passage.
(e) No general permit adopted under paragraphs 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 any such 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 pursuant to this Act;
(2) files any reports required by the general permit;
(3) complies with any 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

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the Department receives the notice.
Section 35. Illinois Wetlands and Streams Advisory
Committee; duties; rules.
(a) The Wetlands and Streams Advisory Committee is
created, which shall consist of the following 17 voting
members appointed by the Governor:
(1) Five members representing the interests of
business, industry, real estate and agriculture;
(2) Five members selected from the membership of
environmental and conservation groups in the State;
(3) Two members representing counties exercising
authority under Section 5-1062 or 5-1062.1 of the Counties
Code to establish stormwater management programs;
(4) One member representing municipalities;
(5) One member representing building trades unions;
and
(6) Three other members as determined by the Governor.
In addition to the 17 voting members, the Director of the
Department of Natural Resources, or his or her designee, and
the Director of the Illinois Environmental Protection Agency,
or his or her designee, shall be non-voting members of this
Committee.
The Committee shall biannually elect from its membership a
Chair, who shall not be an employee of the Illinois
Environmental Protection Agency or the Department. Members of

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the Advisory Committee may organize themselves as they deem
necessary and shall serve without compensation. The Department
shall provide reasonable and necessary staff support to the
Committee.
(b) The Committee shall provide support to the Department
in developing implementing rules pursuant to Section 45 of
this Act. From time to time the Committee shall review,
evaluate and make recommendations to the Department:
(1) Regarding changes to State laws, rules, and
procedures that relate to this Act; and
(2) Relating to the Department's efforts to implement
this Act.
(c) Nothing in this Act shall preclude, at any time, the
recommendation, proposal, or adoption of any other rules under
Section 50 or deemed necessary for the orderly implementation
of this Act.
(d) The Committee shall develop a plan for statewide
wetlands protection and shall submit such plan to the
Department. The Committee may assist the Department with
development of a Memorandum of Agreement with the Corps of
Engineers in accordance with Section 25.
(e) The Committee shall assist counties having stormwater
management authority under Section 5-1062 or 5-1062.1 of the
Counties Code in coordinating and unifying stormwater
management regulations adopted thereto, as required in
subsection (F) of Section 60.

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Section 40. Rulemaking.
(a) The Department shall, in consultation with the
Committee:
(1) Propose rules to implement Sections 30 and 40 of
this Act within 120 days of passage 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) Develop rules to administer and prioritize use of
funding from the Wetlands and Small Streams Protection
Fund pursuant to Section 65 of this Act.
(3) Develop rules to approve and administer mitigation
banks and in lieu fee programs under Section 43 of this
Act, including:
(A) Criteria that an applicant to operate a
mitigation or in lieu fee program under Section 43 of
this Act shall meet that are at least as stringent as
the Army Corps of Engineers requirements (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) Develop rules within 120 days of passage of this

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Act to establish the procedures under which a governmental
body with a stormwater management program under Section
5-1062 of the Counties Code shall be recognized to have
met the conditions of division (b) of Section 60 of this
Act; and
(5) Develop any other rules necessary to administer
this Act.
(b) The Department may, in consultation with the
Committee, 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.
Section 45. Appeal of final Agency decision; 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 days of the permit grant
or denial. 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.

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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 regulations, or
permits.
(b) 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. 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 his
or her 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.
(c) Any person who violates any provision of this Act, any
rule adopted hereunder, or any permit or term or condition
thereof, 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 and Small Streams Protection Fund and
shall be deposited into that Fund as provided in Section 65. In
assessing a penalty, courts may consider any matters of record
including:
(1) The duration and gravity of the violation;

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(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 hereunder or
permits shall not be deemed criminal offenses.
(e) All final orders imposing civil penalties pursuant to
this Section shall prescribe the deadline for payment. If any
such 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 of the permit, obtained the permit by
misrepresentation, or failed to disclose relevant facts.
(g) The Attorney General or States Attorney of the county
where the affected wetland or stream 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 has been committed or is likely to occur, and shall

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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) This Act is enforceable under Section 31(d) of the
Illinois Environmental Protection Act, 415 ILCS 5/31.
(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.

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Section 55. County 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 to control or regulate
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, the Director shall, within 30 calendar days of
receiving the written request, provide a letter recognizing
whether the governmental body's stormwater management program:
(1) Provides wetlands and streams protection
consistent with the scope and intent of this Act;
(2) Has an administration and qualified staff to
implement the governmental body's stormwater management
program; and
(3) Is implementing and enforcing their 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 that meets the provisions 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 stormwater management requirements, at a minimum.
This also applies during the period that the Department is

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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 are deemed to have requested
recognition as of the date of enactment of this Act.
(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 to cure
the defect, if the governmental body with a stormwater
management program under Section 5-1062 of the Counties Code
continues to no longer meet the provisions of paragraphs (1),
(2) and (3) of subsection (B) of this Section.
(e) A governmental body with a stormwater management
program under Section 5-1062 of the Counties Code that has
obtained recognition by the Director under subsection (b) of
this Section shall submit an annual report to the Director.
(f) Counties having authority under Section 5-1062 of the
Counties Code to adopt a stormwater management program shall
seek the assistance of the Chicago Metropolitan Agency for
Planning to coordinate and unify regulations adopted pursuant
thereto.
(g) Nothing in this Act shall be construed as a limitation
or preemption of any home rule power.
(h) The Department may provide technical assistance and
grant funding pursuant to Section 65 to governmental bodies
with approved programs under this Section.

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Section 60. Wetlands and Small Streams Protection Fund.
(a) The Wetlands and Small Streams 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 and
Small Streams Protection Fund shall be credited to the Fund.
The purpose of the Wetlands and Small Streams Protection Fund
is to further wetlands and small streams protection and
management. Its purpose is to supplement, not supplant,
existing Department resources. The Wetlands and Small Streams
Protection Fund may not be utilized to pay for compensatory
mitigation obligations under this Act.
(b) Pursuant to Section 55, all penalties collected by the
Department pursuant to this Act shall be deposited into the
Wetlands and Small Streams Protection fund.
(c) The Illinois General Assembly may appropriate
additional monies to the Wetlands and Small Streams Protection
Fund to implement this Act.
(d) The Department shall utilize the monies in the
Wetlands and Small Streams Protection fund to further wetlands
and small streams protection and management. Eligible uses
include:
(1) Providing technical assistance and grant funding
to counties with approved programs under Section 60 to
restore, preserve, enhance, protect or maintain wetlands,

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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) Matching funds for wetland and stream inventories,
mapping, watershed planning and wetland program
development grants; and
(4) 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 is required for
all permit applications under this Act. The Department shall
establish a graduated review fee payment schedule from $260 to
$5,000 depending on the intensity of required review and the
size of the individual project. Accordingly, highest review
fees will be charged for individual permits to authorize major
projects. The Department may charge a reasonable fee for
wetlands delineation and classification.
Section 90. The State Finance Act is amended by adding
Section 5.1015 as follows:

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(30 ILCS 105/5.1015 new)
Sec. 5.1015. The Wetlands and Small Streams Protection
Fund.
Section 97. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.