Editor's Note: The following critique of Senate Bill and Assembly Bill 24 is due to the efforts of CleanWisconsin. This bill is designed to weaken our water protection laws and regulations and will "kick the door open" for Scott Walker, the Brothers Fitzgerald, Neal Kedize, Zipperer, Honadal, Schultz, and host of others, including those democrats who are great at wringin' their hands and blaming the Republicans for al the shenannagins and back room dealin' to find a way to blow up the Penokees. Afterall, the bankers, politicians, and big business and most probably the Chinese need to grab more minerals to put cash in their pockets.. Oh yes, and WE must include GTac's operatives and managing director Matt Fifield in this mix if for no other reason than to recognize how hard they have worked to dismantle a legancy of environmental protection for their boss.
The colored and highlighted text as well as the links have been added by savethewatersedge.com. Hopefully this helps to make this easier to read. The links have been added for your reference as most of us are not familiar with all the acronyms and number designations.
634 W. Main Street • #300 Madison, WI 53703
www.cleanwisconsin.org Phone: 608-251-7020 info@cleanwisconsin.org
Formerly Wisconsin's Environmental Decade
SS SB 24 – Chapter 30 Permit Reform
Placement of structures, dredging and similar activities in or adjacent to navigable waters are regulated under Chapter 30 of Wisconsin Statutes, and often require permits from the Department of Natural Resources.
SS SB 24 proposes to change the rules for Chapter 30 permits, limit DNR’s authority to impose conditions on permits, and offers presumptive approval for Chapter 30 permits and some other permits. This proposal would also limit DNR’s authority with regard to certain aspects of the permitting process, and change provisions of some other permitting programs administered by DNR.
Please note that much of the bill text affects rules regarding regulation of riparian owners’ rights to build piers or wharves and alter the shoreline within a bulkhead line, which we did not analyze in detail.
Changes to the Chapter 30 permit program
and procedures
· Limits DNR authority to define an “area of significant scientific
value” to 5 statutory categories.
· Grandfathers
in all existing piers and declares them in compliance with Wisconsin’s pier
regulations.
· Requires DNR to issue statewide general permits, which are currently
promulgated by rule, without using the rulemaking process.
· Allows
the creation of a general permit for any activity for which an individual
permit may be issued.
· Allows land grading activities that are authorized under a stormwater discharge permit or a permit issued by a county under a shoreland zoning ordinance without a chapter 30 permit.
· If a public hearing is requested, DNR may deny the public hearing if it finds that there is not “significant public interest” in holding the hearing.
· If the DNR has not made a decision on the permit within 30 days of the end of the comment period, or within 20 days after a hearing if one is held, the permit is considered to be approved as proposed by the applicant.
· DNR may not deny a permit based on a determination that the
application was incomplete.
· DNR may not make the approval subject to any term or condition
that is not specified by statute or rule.
· Limits DNR’s ability to request additional information… under the
proposal DNR may only make one such request.
· DNR must grant requests for permit renewals for up to an
additional 5 years.
· Changes notice requirements for Chapter 30 permits to allow publication online in lieu of posting them under current Class I Notice procedures.
· Requires all navigability determinations to be published online.
Changes to other permit programs
· Changes notice requirements for permit activity under chapters 281 (water quality), 283 (WPDES), 285 (air permits), 289 (solid waste), 291 (hazardous waste), and 292 (remedial action), to allow the option of posting notices online in lieu of posting them under current Class I Notice procedures.
· DNR must issue a general permit for bridges, authorizing the construction, reconstruction, and maintenance of bridges and culverts that are part of a transportation project that is carried out under the direction and supervision of a city, village, town, or county.
· Removes requirement to perform air dispersion modeling for major new stationary sources of air pollution before issuing an air permit.
o This violates the Clean Air Act
requirement to show that a source can meet ambient air quality standards. This
is especially true for determining the potential impacts of a new source.
Without modeling, it will be difficult, if not impossible, to determine a
facility’s ability to comply with this requirement.
· Establishes timelines for the approval of certain types of certifications, registrations, or licenses. If DNR fails to act on these permits within the given timeline, the permit is treated as denied, and the applicant can file a contested case against the DNR. This includes applications for an oil or gas exploration license under s. 295.33(1).
· Establishes automatic approval
for the following types of permits if DNR fails to act on a permit application
within a specified timeline:
o High-capacity wells under s. 281.34(2)
o Prospecting permits under s. 293.45
o Oil or gas production licenses under s. 295.33
Potential impact on the regulation of
mining or permitting a new mine in Wisconsin
· Presumptive approval for the construction of any structures that would be required to be placed in or adjacent to navigable waters (including wetlands) such as bridges, culverts, crossings, or other structures required to operate a mine.
· Limiting designations of “Areas of Special Natural Resource Interest” will ease the placement of any structure in navigable waters including wetlands necessary for the mine (wetland “fill” is not covered in this bill).
· Pellet processing or energy generating facilities required for the mine will not need to model their air emissions to ensure compliance with air quality standards in order to obtain an air permit.
· Timelines for presumptive approvals for all high-capacity wells or prospecting activities will be set by rule. DNR is currently given 65 days for high-capacity well approvals by rule unless environmentalanalysis is needed.
Effect on ASNRI designations
There have been some questions about what effect this bill has on designating a water or wetland as an “Area of Special Natural Resource Interest” or “ASNRI.” This bill, as stated above, limits the definition of “area of significant scientific value.” This is a term that is used to define what can be designated as ASNRI.
Currently, NR 1.05 defines ASNRI to be:
1. A
state natural area designated under ss.23.27-23.29, Stats.
2. A
surface water identified as a trout stream by the department under s. NR
1.02(7)
3. A
surface water identified as an outstanding or exceptional resource water under
s. 281.15, Stats.
These three items remain unchanged in the LRB.
Areas with significant scientific value are also ASNRI and are currently defined under NR 1.05 as:
1. Waters
or portions of waters that contain endangered or threatened species or aquatic
elements as defined and identified in the Wisconsin Natural Heritage
Inventory.
2. Wild rice waters as identified in a written agreement between the department and the Great Lakes Indian Fish and Wildlife Commission.
3. Waters
in areas identified in a special area management plan, abbreviated SAMP,
approved by the U.S. Army Corps of Engineers, or special wetland inventory
study, abbreviated SWIS, identified under NR 103.04.
4. Waters
in ecologically significant coastal wetlands along Lakes Michigan and Superior
as identified in Publication #ER-002-00, Data Compilation and Assessment of
Costal Wetlands of Wisconsin’s Great Lakes, March 2000.
5. Federal or state, under ss. 30.26 and 30.27, Stats., designated wild or scenic rivers.
LRB 1446 removes the highlighted language above, and adds “[s]pecific portions of waters that are immediatelyadjacent to an area that contains critical habitat for endangered or threatened species and that directly affect that habitat.”
ASNRI wetlands are currently defined as “wetlands within the boundary of designated areas of special natural resource interest and those wetlands which are in proximity to or have a direct hydrologic connection to such areas.” NR 103.04. NR 103 (Water Quality Standards for Wetlands) has a broader definition of ASNRI than NR
1.05, and includes the
following additional waters:
1. Lakes
Michigan and Superior and the Mississippi River;
2. Unique and significant wetlands identified in special area management plans (SMAP), special wetland inventory studies (SWIS), advanced delineation and identification studies (ADID) and areas designated by the United States environmental protection agency under section 404(c), 33 USC 1344 (c);
3. Calcareous
fens;
4. State
parks, forests, trails and recreation areas;
5. State
and federal fish and wildlife refuges and fish and management areas; and
6. State
and federal designated wilderness areas (16 USC 1131 to 1135 and s. NR
1.415);
As you can see, there is currently a much broader definition for ASNRI wetlands. Currently NR 103 governs the definition of ASNRI for wetlands even for Chapter 30 permits. It is unclear whether the definition as proposed under this legislation would supplant the definition under NR 103 for Chapter 30 permits. In any case, this change does not affect water quality certifications for wetlands, which govern most wetland fills. According to DNR, wetland fills are not handled under Chapter 30 but are instead permitted under water quality certification.
Note also, that wetland alterations which are directly caused by operations on a metallic mineral prospecting
site or mining site shall be regulated pursuant to specific mining standards under chs.https://docs.legis.wisconsin.gov/code/admin_code/nr/131(prospecting) and 132 (mining), respectively. NR 132 lays out a framework for evaluating wetlands including their biological functions, watershed functions, hydrologic support functions, groundwater function, storm and flood water storage, shoreline protection, and other watershed functions. It is unclear whether NR 132 will exist under any proposed mining legislation yet to come.