On April 2, 2012, Governor Walker signed into law 2011 Wisconsin Act 167 (the Act), the latest legislative effort to streamline the Wisconsin Department of Natural Resources (DNR) permitting process. The Act’s primary focus is on the substance and procedures of navigable waterway permitting under Wis. Stat. ch. 30, especially piers, with additional revisions to the public notice procedures of the air, wastewater, solid and hazardous waste, and remedial action statutes.

The revisions made by the Act take effect on August 1, 2012 for all but a few of the pier provisions which are effective immediately upon publication (noted below).[1]

A. Chapter 30 Navigable Waterway Permitting

These amendments fall into four broad categories: piers, grading permit exemptions, general permits and individual permits.

1. Piers

The DNR’s regulation of piers on navigable waterways has been a matter of controversy and legislative attention for many years. Act 167 is the latest installment.

In 2004, Wisconsin enacted a major legislative reform package called the “Jobs Creation Act”, making significant revisions to the sections of Wis. Stat. ch. 30 that govern permits for activities affecting navigable waterways. The Jobs Creation Act formalized three permit categories: exemptions, general permits, and individual permits; and established related time frames, hearing and appeal procedures. To implement these legislative directives, the DNR embarked on a major rulemaking effort to adopt general permits and establish the criteria and procedures for issuance of individual permits. Significant revisions to the rule addressing piers, NR 326, were proposed but not enacted with the remainder of the rules due to public controversy over the proposed revisions. See our Client Alert on the Jobs Creation Act.

The DNR continued its efforts to revise and update NR 326 with respect to piers and pier standards, but to no avail. Ultimately, the Legislature stepped in and enacted 2007 Wisconsin Act 204, resolving the debate by exempting smaller piers from the need to obtain a permit and creating a cut-off date and pier registration process for larger piers. These larger piers could also be exempt from the permit requirement if they were placed before February 6, 2004 (i.e., they were “grandfathered”) and registered with the DNR by April 1, 2011. 2011 Wisconsin Act 25 subsequently extended the registration date to April 1, 2012.

Effective immediately,[2] Act 167 has eliminated the February 6, 2004 “grandfathering” date and the entire pier registration process for the larger piers.[3] The existing exemption for smaller piers is maintained with minor clarifying revisions to the language.

As a result of Act 167, the following piers are exempt from the requirement to obtain a permit:

1. The pier meets the following criteria:

a. No more than 6’ wide and extends no further than to a point where the water is 3’ deep or deep enough to moor a boat;

b. No more than two boat slips for the first 50’ of riparian owner’s shoreline footage and no more than one boat slip for each additional 50’ of footage; and

c. A loading platform may be more than 6’ wide if the surface area of the platform is no more than 200 sq. ft.[4]

1. The pier does not meet the criteria listed under sub. 1, but is an existing pier (i.e., was placed on the bed of the waterway before April 17, 2012[5]) regardless of whether or not it has been registered, UNLESS:

a. The DNR notified the riparian owner before April 17, 2012[6] that the pier is “detrimental to the public interest”; or

b. The pier “interferes with the riparian rights of other riparian owners.”[7]

Further, the DNR is prohibited from taking enforcement action against the riparian owner of any pier if the DNR issued either a permit or a written authorization for the pier and the pier is in compliance with that permit or authorization,[8] and a pier owner may relocate or reconfigure the pier so long as the pier is not enlarged.[9]

2. Grading permit exemption

Act 167 has also eliminated the need to obtain duplicative state permits to move dirt on the bank of a navigable waterway. Wis. Stat. s. 30.19 regulates grading activities on the waterway bank. Wis. Stat. ch. 283 regulates the management of stormwater from land disturbing activities (e.g., construction). Both of these provisions are directed at protecting water quality from dirt that is disturbed and can run off as a result of site work.

Effective August 1, 2012, land grading activity on the bank of a navigable waterway is exempt from the requirement to obtain a s. 30.19 permit if it is authorized by a stormwater discharge permit issued under s. 283.33. If the land grading is authorized by a county permit issued under its shoreland zoning ordinance, it is similarly exempt from the requirement to obtain an s. 30.19 grading permit from the DNR.[10]

3. General permits

If a regulated project or activity is not exempt from the requirement to obtain a permit, it must be authorized by either a general permit or an individual permit. General permits are written to cover any number of projects or activities that can meet a standardized set of criteria, whereas an individual permit is written specifically for that project. As a result, general permits are ultimately time savers. Changes made in Act 167 maximize the DNR’s authority to issue general permits under ch. 30 and streamline the process for doing so.

The Act maximizes the DNR’s authority to issue general permits by expanding the universe of activities for which the DNR can issue general permits to include any activity regulated under ch. 30.[11] The Act streamlines the process for doing so by exempting general permits from the definition of “rule”,[12] eliminating the lengthy and cumbersome procedure for adopting rules, and replacing that procedure with a public comment period and a newly-created legislative committee review process.[13]

Any general permit must contain requirements and conditions that assure the activity being authorized “will cause only minimal adverse environmental impacts, will not materially interfere with navigation, and will not have an adverse impact on the riparian property rights of adjacent riparian owners.”[14]

Once a general permit is issued, the process works like this: If you believe your activity meets the eligibility criteria you apply to the DNR for “coverage” under the general permit no less than 30 days before beginning the activity. If the DNR does not request more information or otherwise inform you that your activity does not qualify for the general permit within that 30-day period, the activity is considered authorized and you are legally free to proceed. The DNR may make one request for additional information during that 30-day time period; if the DNR does so, the time it takes you to provide that information is added to the 30 days the DNR has to respond to your application.[15]

Once issued, a general permit is valid for five years. Regardless of the expiration date of a general permit, an activity authorized under a general permit remains authorized for five years from the date of coverage or until it is complete, whichever occurs first. The DNR is authorized to renew, modify and revoke general permits following the same procedures used to issue the general permit initially.[16]

The net effect of these revisions is to invest the time initially in developing and issuing the general permits so that as many activities as possible can be authorized using these streamlined procedures. For activities that don’t meet the general permit criteria, an individual permit option remains available.

4. Individual permits

Act 167 makes a few revisions to the procedures for issuance of individual permits, also designed to tighten up the timelines. The primary revisions conform these procedures to the procedures included in the recently-enacted Wetlands Reform Bill (2011 Wisconsin Act 118) so that the procedures for navigable waterway permits issued under ch. 30 and for wetland water quality permits issued under ch. 281 are the same.

Here is how it all works:[17]

a. Within 30 days of receipt of the individual permit application, the DNR determines if the application is complete/incomplete:

• If complete, THE DNR notifies the applicant and the date of that notification becomes the “date of closure”; the date of closure drives subsequent deadlines as described below.
• If incomplete, the DNR notifies the applicant of the deficiency/ies within the same 30-day time period; the DNR is limited to one request for additional information within the same 30-day time period; within 10 days of receipt of the requested information, the DNR notifies the applicant if the application is complete/incomplete (if still incomplete, the DNR and applicant can agree to additional information the applicant will provide); the date of this second notification becomes the date of closure.
• If the DNR fails to meet this 30-day or 10-day time period, the date of closure becomes the last day of either the 30-day or 10-day time period.

b. Within 15 days of the date of closure, the DNR issues the public notice of pending application.

• The notice may include notice of a public hearing if the applicant requests it.
• If not, any member of the public may request a public hearing within 20 days of issuance of the public notice; or with or without a request, the DNR may decide to hold a public hearing if it determines “there is significant public interest” to do so.
• The DNR must issue a public notice of the hearing within 15 days of receipt of a hearing request or its own decision to hold a hearing; the public comment period closes 10 days after the hearing is held.

c. Within 20 days after the public comment period has ended if a hearing is held, or within 30 days after the public comment period has ended if no hearing is held, the DNR issues its decision to either issue or deny the permit.

d. If the DNR fails to comply with these time periods, the permit is considered to be issued and the activity may proceed, although the DNR may impose terms and conditions on the permit “that are consistent with the applicant’s basic proposal.”[18]

The DNR’s decision to issue or deny the permit is subject to challenge in either or both an administrative contested case hearing under ch. 30 and judicial review under ch. 227. The ch. 30 contested case procedures were significantly revamped in the Jobs Creation Act (2003 Wisconsin Act 118). Those procedures remain intact under Act 167[19] and are summarized in our Client Alert on the Jobs Creation Act.

B. Public Notice Procedures for Ch. 30 and Other Environmental Statutes

Act 167 also brings the DNR’s public notice procedures into the digital age by requiring the DNR to:

1. Create an electronic notification system to provide public notice;[20]
2. Post public notices on the DNR website;[21]
3. Post on the DNR website any navigability determinations DNR makes – which may be relied upon;[22]
4. Post (to the greatest extent possible) the current status of any application for a permit under chs. 30, 281 to 285, or 289 to 299, and any hearings scheduled on the application.[23]

Importantly, the Act also specifies that the date on which the DNR first posts the public notice on its website is the date the notice is considered to be issued, for purposes of permits to be issued under ch. 30,[24] Wisconsin Pollutant Discharge Elimination Systerm permits to be issued under ch. 283,[25] air construction and operation permits to be issued under ch. 285,[26] solid and hazardous waste facility approvals to be issued under chs. 289 and 291,[27] and remedial actions to be authorized under ch. 292.[28]

C. Other revisions

1. Act 167 makes other revisions which address:
2. Repair of boathouses[29]
3. Expedited procedures for approval of low hazard dams[30]
4. Bridge standards[31]
5. Use of air dispersion modeling for minor source determination[32]

The DNR staff will use the time between now and August 1 to create application forms, internal procedures and guidance, and otherwise prepare to implement these statutory directives. For more information, please contact the author of this client alert.