Chapter DHS 18

DHS 18.08(1) (1) Scoping.

DHS 18.08(1)(a) (a) As soon as possible after the decision to prepare an EIS, the department shall inform the public and affected or otherwise interested agencies that an EIS will be prepared and that the process of identifying impacts and alternatives to be analyzed in the EIS is beginning.

DHS 18.08(1)(b) (b) The scoping process shall include, to the extent possible, affected federal, state and local agencies, any affected Indian tribe, and other interested persons. The process may consist of meetings, hearings, workshops, surveys, questionnaires, interagency committees, or other appropriate methods or activities, and may be integrated with other public participation requirements.

DHS 18.08(1)(c) (c) The department shall use the scoping process to:

DHS 18.08(1)(c)1. 1. Determine the parameters of the EIS and the significant issues to be analyzed in depth in the EIS; and

DHS 18.08(1)(c)2. 2. Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental impact analyses. This will permit limiting the discussion of these issues in the EIS to a brief presentation about why they are not significant for the human environment or to references to other documents in which these issues are discussed.

DHS 18.08(2) (2) Format of statement.

DHS 18.08(2)(a) (a) The EIS shall be written in plain language, and shall be concise, clear, and to the point. It should include appropriate graphics to help decisionmakers and citizens understand the implications of the proposed action and alternatives for quality of the human environment.

DHS 18.08(2)(b) (b) Parts of the EIS shall be:

DHS 18.08(2)(b)1. 1. A cover sheet containing the title of the proposed action, name of the department, designation of the document as the draft or final statement, name and address of the office where more information can be provided, a one-paragraph abstract of the statement and the last date on which comments on the document will be considered.

DHS 18.08(2)(b)2. 2. A summary of the statement. It shall briefly describe the proposed action and shall emphasize major conclusions, areas of controversy, and issues to be resolved.

DHS 18.08(2)(b)3. 3. A table of contents.

DHS 18.08(2)(b)4. 4. A brief specification of the purpose of the action and need for it.

DHS 18.08(2)(b)5. 5. A succinct description of the environment which would be affected by the proposed action.

DHS 18.08(2)(b)6. 6. In comparative format, an analysis of the impact on the environment of the proposed action and all reasonable alternatives to it, including the alternative of no action.

DHS 18.08(2)(b)7. 7. A discussion of the scientific and analytic bases for the environmental consequences identified in subd. 6.

DHS 18.08(2)(b)8. 8. A list of preparers of the EIS together with their qualifications.

DHS 18.08(2)(b)9. 9. Appendices, if any, relevant to analyses in the EIS or otherwise relevant to the decision to be made.

DHS 18.08(2)(c) (c) Other documents and sources of information may be incorporated by reference, provided that they are reasonably accessible to interested persons. “Reasonably accessible” in the case of documents means that the documents are available for public inspection at the central offices of the department in Madison and at a field office of the department in the area of the project if the project is in a particular area of the state.

DHS 18.08(3) (3) Content of statement..

DHS 18.08(3)(a) (a) When an EIS is required, first a draft EIS and then a final EIS shall be prepared by the department or else be prepared for the department under contract by a consultant with supervision and final editorial review by the department. The EIS shall emphasize significant environmental issues identified during the scoping process. An EIS shall contain, in the appropriate parts specified in sub. (2) (b) 4. to 7.:

DHS 18.08(3)(a)1. 1. A description of the proposed action and of the affected environment, including the project location, type of facility, time schedules, maps and diagrams deemed relevant, and other pertinent information which will adequately allow an assessment of the potential environmental impact by commenting agencies and the public.

DHS 18.08(3)(a)2. 2. An analysis of the probable impact of the proposed action on the environment of human beings, to include identification of positive as well as negative effects of the proposed action and, wherever possible, indirect as well as direct consequences for the environment.

DHS 18.08(3)(a)3. 3. Alternatives to the proposed action, including a rigorous exploration and objective evaluation of the environmental impacts of all reasonable alternatives, particularly those that might avoid all or some of the adverse environmental effects of the proposed action. If the department has a preferred alternative to the proposed action, that should be identified.

DHS 18.08(3)(a)4. 4. A discussion of probable adverse environmental effects which cannot be avoided should the proposal be implemented. Protective and mitigative measures to be taken as part of the proposed action shall be identified.

DHS 18.08(3)(a)5. 5. A discussion of the relationship between short-term use of the environment and the maintenance and enhancement of long-term productivity.

DHS 18.08(3)(a)6. 6. Identification of significant irreversible and irretrievable commitments of resources that would be involved in the proposed action, if implemented, with a statement identifying the extent to which the proposed action irreversibly curtails the range of potential uses of the environment.

DHS 18.08(3)(a)7. 7. Details of the beneficial aspects of the proposed action, and of the economic advantages and disadvantages of the proposed action.

DHS 18.08(3)(a)8. 8. A summary of the scoping process used and of the major issues identified through it for detailed analysis in the EIS.

DHS 18.08(3)(b) (b) The EIS shall be an analytical document that enables environmental factors to be considered in the development of a proposed action. It shall be considered by the department in the decision-making process.

DHS 18.08(3)(c) (c) An EIS is not a document of justification. On the other hand, disclosure of adverse environmental effects does not necessarily mean that a proposed action should be abandoned.

DHS 18.08(3)(d) (d) Where proposed actions are likely to be repeated on a recurring basis or where they have relevant similarities such as common timing, impacts, alternatives, methods of implementation, or subject matter, a generic EIS may be prepared. The department shall, when addressing a single action already covered by a generic EIS, examine the relevance of the generic EIS to the specific action.

DHS 18.08 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.09 DHS 18.09 Review of the DEIS.

DHS 18.09(1) (1) Specified distribution. Copies of the DEIS shall be distributed to:

DHS 18.09(1)(a) (a) The governor’s office.

DHS 18.09(1)(b) (b) The department of natural resources and other state, federal, and local government agencies having special expertise, interest or jurisdiction.

DHS 18.09(1)(c) (c) Regional and county planning agencies located within the proposed project or action area.

DHS 18.09(1)(d) (d) Regional offices of the department covering the area of the proposed project or action and the department’s central office in Madison.

DHS 18.09(1)(e) (e) Appropriate public libraries:

DHS 18.09(1)(e)1. 1. For proposed actions affecting a local area, the nearest public library.

DHS 18.09(1)(e)2. 2. For projects of regional importance, public libraries with a geographic distribution which permits public access without undue travel.

DHS 18.09(1)(e)3. 3. For projects having statewide significance, public libraries providing reasonable access for individuals who could be affected by the proposed action.

DHS 18.09(1)(f) (f) The county clerk, city clerk or town clerk for proposed actions affecting a local area.

DHS 18.09(1)(g) (g) Any individual or group requesting a copy.

DHS 18.09(2) (2) Notice of availability.

DHS 18.09(2)(a) (a) The department shall publish in local newspapers, or in the official state newspaper, as appropriate, a notice of availability of the DEIS which briefly describes the proposed action and the administrative procedures being followed in review for environmental impact, sets the last date by which comments on the DEIS are to be submitted to the department, indicates locations where copies of the DEIS are available for review, and provides an address from which any interested party may obtain a copy of the DEIS.

DHS 18.09(2)(b) (b) The department shall send copies of the notice of availability to:

DHS 18.09(2)(b)1. 1. Local and regional news media in the affected area;

DHS 18.09(2)(b)2. 2. Groups and individuals known to have an interest in the particular EIS; and

DHS 18.09(2)(b)3. 3. All participants in the scoping process who are not covered by subd. 1. or 2.

DHS 18.09(2)(c) (c) The notice of availability of the DEIS may be combined with the notice of informational hearing under sub. (4).

DHS 18.09(3) (3) Period for comment. The department shall allow a minimum of 45 days from the date the notice of availability of the DEIS is published, including a minimum of 7 days following the hearing provided for in sub. (4), for receipt of written comments on the DEIS.

DHS 18.09(4) (4) Informational hearing.

DHS 18.09(4)(a) (a) The department shall hold a public hearing on the DEIS. The hearing shall be noticed as follows:

DHS 18.09(4)(a)1. 1. At least 30 days prior to the hearing, notice shall be mailed to all known agencies and offices required to grant any permit, license or approval necessary for the proposal; to any regional planning commission within which the affected area lies; to the governing bodies of all towns, villages, cities and counties within which any part of the proposal lies; to the governing bodies of any towns, villages or cities contiguous to any town, village or city within which any part of the proposal lies; and to interested persons who have requested such notification.

DHS 18.09(4)(a)2. 2. At least 25 days prior to the hearing, a notice shall be published in a newspaper circulated in the affected area or, for actions of statewide significance, in the official state newspaper.

DHS 18.09(4)(b) (b) The hearing shall be held in the affected area. On actions of statewide significance, the hearing may be held in Madison.

DHS 18.09(4)(c) (c) The hearing shall be transcribed either stenographically or electronically.

DHS 18.09 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.10 DHS 18.10 Conversion of DEIS to FEIS. After weighing the testimony received at the public hearing on the DEIS, and undertaking whatever further investigation in response to that testimony seems necessary, the department may convert a DEIS to an FEIS. This may be accomplished by replacing the cover sheet, modifying the statement as judged appropriate to reflect information received at public hearing or while the hearing record was kept open, and by adding an appendix which records and responds to information, concerns, views, arguments, and suggestions received at the hearing and while the hearing record was kept open.

DHS 18.10 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.11 DHS 18.11 Review of the FEIS.

DHS 18.11(1) (1) Distribution. The FEIS shall be distributed in the same manner as the DEIS in s. DHS 18.09 (1), and shall also be distributed to any person, organization or agency that submitted comments on the DEIS.

DHS 18.11(2) (2) Notice of availability. The availability of the FEIS shall be announced through a notice similar to the notice of availability of the DEIS in s. DHS 18.09 (2). That notice shall state whether the department will hold a public hearing on the FEIS, as permitted under sub. (3) (b). The department shall provide a copy of the FEIS to any individual or group requesting a copy.

DHS 18.11(3) (3) Period for comment.

DHS 18.11(3)(a) (a) The department shall allow a minimum of 45 days from the date the notice of availability of the FEIS is published, including a minimum of 7 days following a hearing held under par. (b), for receipt of written comments on the FEIS from state and federal agencies and the public.

DHS 18.11(3)(b) (b) The department may hold a public hearing on the FEIS. That hearing shall be announced through the notice of availability of the FEIS which shall be published at least 25 days prior to the hearing in a newspaper circulated in the affected area or, for actions of statewide significance, in the official state newspaper.

DHS 18.11(4) (4) Contested case hearing opportunity.

DHS 18.11(4)(a) (a) Request for a hearing. Any person meeting the qualifications contained in s. 227.42 (1) (a) to (d), Stats., may within 20 days after publication of the notice of availability under sub. (2), or within 20 days after the public hearing under sub. (3) (b), if there is one, file with the department a request for a contested case hearing. The request shall include facts sufficient to establish that the person satisfies the criteria set forth in s. 227.42 (1) (a) to (d), Stats., and a statement of the reasons the person believes that the FEIS does not conform to the requirements of s. 1.11, Stats. Any request received by the department more than 20 days after the date of publication of the notice of availability or more than 20 days after a public hearing under sub. (3) (b) shall be denied.

DHS 18.11(4)(b) (b) Hearing.

DHS 18.11(4)(b)1. 1. If the department grants a request for a contested case hearing, the department shall inform the person making the request about the date, time and place of the hearing.

DHS 18.11(4)(b)2. 2. In the event that more than one request for a hearing on the FEIS is granted, the department may consolidate the requests and hold one hearing.

DHS 18.11(4)(b)3. 3. The only issue at the hearing shall be whether the FEIS complies with the requirements of s. 1.11, Stats. The persons who requested the hearing shall have the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the FEIS does not comply with the requirements of s. 1.11, Stats.

DHS 18.11(4)(b)4. 4. The hearing shall be held in accordance with the department’s general procedural rules for hearings or, in the absence of those rules, the conditions and procedures set out in ss. 227.44 to 227.50, Stats., except as otherwise provided in this subsection.

DHS 18.11(4)(c) (c) Evidence, discovery, and disclosure.

DHS 18.11(4)(c)1. 1. The FEIS shall be received into the hearing record as an exception to the hearsay rule and shall be considered by the department in making its decision for whatever probative value the FEIS has.

DHS 18.11(4)(c)2. 2. Notwithstanding any other rule of the department, the parties in proceedings under this action shall have the means of discovery, except written interrogatories and depositions on written questions, available to parties through judicial proceedings set forth in ch. 804, Stats.

DHS 18.11(4)(c)3. 3. Not less than 10 days before the hearing the parties shall file with the department:

DHS 18.11(4)(c)3.a. a. The names and addresses of all witnesses, including adverse witnesses, that the party may call to testify at the hearing.

DHS 18.11(4)(c)3.b. b. A detailed written summary of the testimony to be elicited from each witness identified in subpar. a., including any opinion or conclusion of the witness on any matter relevant to the proceedings and the facts and data underlying that opinion or conclusion. The summary shall be on oath or affirmation.

DHS 18.11(4)(c)3.c. c. A copy of any document or other writing, except the FEIS, and a copy or detailed description of any demonstrative evidence the party may offer into evidence as exhibits.

DHS 18.11(4)(c)4. 4.

DHS 18.11(4)(c)4.a. a. Any witness whose name, address and summary of testimony is not provided as required in subd. 3. a. and b. shall not be permitted to testify at the hearing. No witness may testify on any matter not included in the summary of testimony.

DHS 18.11(4)(c)4.b. b. No document or other writing or a copy or detailed description of any demonstrative evidence not filed as provided in subd. 3. c. may be made part of the record.

DHS 18.11(4)(c)5. 5. Unless objected to by the department, any summary of testimony of a witness for the person who requested the hearing shall be made part of the record in lieu of the testimony of that witness as an exception to the hearsay rule and shall be considered by the department for whatever probative value that testimony has in making its decision. Unless objected to by the person who requests the hearing, any summary of the testimony of a witness for the department shall be made part of the record in lieu of the testimony of such witness as an exception to the hearsay rule and shall be considered by the department for whatever probative value that testimony has in making its decision.

DHS 18.11 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83; corrections in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, August, 1994, No. 464.

DHS 18.12 DHS 18.12 Decision.

DHS 18.12(1) (1) Review of comments. After expiration of the comment period on the FEIS and following any contested case hearing on the adequacy of the FEIS, the department shall carefully review, summarize and weigh the comments received on the FEIS and on the proposed action and the decision following any contested case hearing before making a decision on the action.