Section 151.245. Protective areas performance standard.

 

(1)   Definition. In this section, "protective area" means an area of land that commences at the top of the channel of lakes, streams, and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following widths, as measured horizontally from the top of the channel or delineated wetland boundary to the closest impervious surface. However, in this section, "protective area" does not include any area of land adjacent to any stream enclosed within a pipe or culvert, so that runoff cannot enter the enclosure at this location.

(a) For outstanding resource waters and exceptional resource waters, 75 feet.

(b) For perennial and intermittent streams identified on a U.S. geological survey 7.5-minute series topographic map, or a county soil survey map, whichever is more current, 50 feet.

(c) For lakes, 50 feet.

(d) For wetlands not subject to par. (e) or (f) , 50 feet.

(e) For highly susceptible wetlands, 75 feet. Highly susceptible wetlands include the following types: calcareous fens, sedge meadows, open and coniferous bogs, low prairies, coniferous swamps, lowland hardwood swamps, and ephemeral ponds.

(f) For less susceptible wetlands, 10 percent of the average wetland width, but no less than 10 feet nor more than 30 feet. Less susceptible wetlands include: degraded wetlands dominated by invasive species such as reed canary grass; cultivated hydric soils; and any gravel pits, or dredged material or fill material disposal sites that take on the attributes of a wetland.

(g) In pars. (d) to (f) , determinations of the extent of the protective area adjacent to wetlands shall be made on the basis of the sensitivity and runoff susceptibility of the wetland in accordance with the standards and criteria in s. NR 103.03 .

(h) Wetland boundary delineation shall be made in accordance with s. NR 103.08 (1m) . This paragraph does not apply to wetlands that have been completely filled in compliance with all applicable state and federal regulations. The protective area for wetlands that have been partially filled in compliance with all applicable state and federal regulations shall be measured from the wetland boundary delineation after fill has been placed. Where there is a legally authorized wetland fill, the protective area standard need not be met in that location.

(i) For concentrated flow channels with drainage areas greater than 130 acres, 10 feet.

(j) Notwithstanding pars. (a) to (i) , the greatest protective area width shall apply where rivers, streams, lakes, and wetlands are contiguous.

(2)   Applicability. This section applies to transportation facility post-construction sites located within a protective area, except those areas exempted pursuant to sub. (4) .

(3)   Requirements. The following requirements shall be met:

(a) No impervious surface of a transportation facility may be constructed within a protective area, unless the transportation facility authority determines, in consultation with the department, that there is no practical alternative. If there is no practical alternative to locating a transportation facility within a protective area, the transportation facility may be constructed in the protective area only to the extent the transportation facility authority, in consultation with the department, determines is reasonably necessary. The transportation facility authority shall state in the design plan prepared pursuant to s. NR 151.241 (3) , why it is necessary to construct the transportation facility within a protective area.

(b) Where land disturbing construction activity occurs within a protective area, adequate sod or self-sustaining vegetative cover of 70 percent or greater shall be established and maintained where no impervious surface is present. The adequate sod or self-sustaining vegetative cover shall be sufficient to provide for bank stability, maintenance of fish habitat, and filtering of pollutants from upslope overland flow areas under sheet flow conditions. Non-vegetative materials, such as rock riprap, may be employed on the bank as necessary to prevent erosion such as on steep slopes or where high velocity flows occur.

(c) Best management practices such as filter strips, swales, or wet detention ponds, that are designed to control pollutants from non-point sources, may be located in the protective area.

(4)   Exemptions. This section does not apply to any of the following:

(a) Except as provided under s. NR 151.241 (4) , non-highway transportation redevelopment post-construction sites.

(b) Structures that cross or access surface waters such as boat landings, bridges, and culverts.

(c) Structures constructed in accordance with s. 59.692 (1v) , Stats.

(d) Transportation facilities from which the runoff does not enter the surface water, including wetlands, without first being treated by a BMP to meet the requirements of ss. NR 151.242 to 151.243 , except to the extent that vegetative ground cover is necessary to maintain bank stability.

CR 09-112 : cr. Register December 2010 No. 660 , eff. 1-1-11.

Note

Information on wetland types, including ephemeral ponds, is available from the department at [phone]. Microsoft Windows NT 6.1.7601 Service Pack 1 A stream or lake is not eligible for a lower protective area width even if contiguous to a less susceptible wetland. Microsoft Windows NT 6.1.7601 Service Pack 1 It is recommended that seeding of non-invasive vegetative cover be used in the protective areas. Some invasive plants are listed in ch. NR 40 . Vegetation that is flood and drought tolerant and can provide long-term bank stability because of an extensive root system is preferable. Vegetative cover may be measured using the line transect method described in the University of Wisconsin extension publication number A3533, titled "Estimating Residue Using the Line Transect Method". Microsoft Windows NT 6.1.7601 Service Pack 1 Other laws, such as ch. 30 , Stats., and chs. NR 103 , 115 , 116 , and 117 and their associated review and approval processes may apply in the protective area. Microsoft Windows NT 6.1.7601 Service Pack 1 A vegetated protective area to filter runoff pollutants from transportation facilities described in par. (d) is not necessary since the runoff at that location is treated prior to entering the surface water. Other practices necessary to meet the requirements of this section, such as a swale or pond, will need to be designed and implemented to reduce runoff pollutants prior to runoff entering a surface water of the state. The requirements of ch. NR 103 still apply and should be considered before runoff is diverted to or from a wetland. Microsoft Windows NT 6.1.7601 Service Pack 1