Chapter NR 860

subch. IV of ch. NR 860 Subchapter IV — Public Participation

NR 860.40 NR 860.40 Applicability.

NR 860.40(1) (1) The public participation requirements outlined in this subchapter apply to all of the following:

NR 860.40(1)(a) (a) Individual water use permits under s. 281.346 (5), Stats., that require the applicant to meet the state decision-making standard under s. 281.346 (5m), Stats., or compact decision-making standard under s. 281.346 (6), Stats., except for a public water supply that has an approved water supply service area plan under s. 281.348, Stats.

NR 860.40(1)(b) (b) General water use permits under s. 281.346 (4s), Stats.

NR 860.40 Note Note: Public participation is only required for the department issuance of the general permit itself. The issuance of notice of coverage under a general permit to a withdrawer does not require public participation.

NR 860.40(2) (2) The department shall not issue a decision regarding a permit covered under sub. (1) until the requirements of this subchapter have been met.

NR 860.40 History History: CR 10-109: cr. Register September 2011 No. 669, eff. 10-1-11.

NR 860.41 NR 860.41 Public Notice and Comment.

NR 860.41(1) (1) The department shall draft and provide a public notice regarding each general permit proposed by the department and each individual permit application under s. NR 860.40 (1). The public notice shall allow 30 days for public comment. For individual water use permit applications specified in s. NR 860.40 (1), the notice shall be provided within 90 days of the department receiving a complete application. For general permits, the department shall provide, publish, and deliver the public notice when a draft general permit has been completed.

NR 860.41(2) (2) The public notice shall comply with all of the following:

NR 860.41(2)(a) (a) Be published by the applicant as a class 1 notice under ch. 985, Stats., in the counties where water from the withdrawal will be used and in counties within five miles of the location of the withdrawal. For actions involving individual water use permits, the applicant shall provide proof of publication of the notice in the form of an affidavit from the newspaper certifying publication and documenting the date of publication.

NR 860.41 Note Note: The department is responsible for publishing the required notice for general permits.

NR 860.41(2)(b) (b) Be delivered by the department or applicant to any person, group, local governmental unit, or state agency upon request. The applicant for an individual water use permit shall provide proof of delivery in the form of an affidavit or documentation from the delivery method or person.

NR 860.41(2)(c) (c) Be delivered by the department or applicant to persons or groups on a formal department water use permit application mailing list. The applicant for an individual water use permit shall provide proof of delivery in the form of an affidavit or documentation from the delivery method or person.

NR 860.41(3) (3) The public notice shall include all of the following information:

NR 860.41(3)(a) (a) For individual water use permits, the name and address of each applicant.

NR 860.41(3)(b) (b) For individual water use permits, a brief description of the proposal for which the application is made, including the amount of the proposed withdrawal and the amount of any water loss from consumptive use.

NR 860.41(3)(c) (c) For general permits, a description of the types of withdrawals and the waters of the state or areas of the state covered by the general permit.

NR 860.41(3)(d) (d) A brief description of the procedures to be used to formulate a final determination on the proposed action, including the 30-day period for public comment and the 30-day period for requesting a public hearing.

NR 860.41(3)(e) (e) The process, location, and timeframes to obtain additional information, submit written comments, or request a public hearing.

NR 860.41(4) (4) The public comment period is 30 days starting on the date the notice is published.

NR 860.41(5) (5) Any person may submit written comments. All comments shall be submitted to the department at the address specified in the public notice by the end of the 30-day public comment period. Comments are submitted on the date they are postmarked using U.S. mail or on the date they are delivered to the address specified in the public notice.

NR 860.41(6) (6) All comments shall address facts relevant to whether the proposed withdrawal complies with the applicable legal standards.

NR 860.41(7) (7) The department shall retain all written comments submitted during the 30-day comment period and shall consider the comments in making its decisions on the application.

NR 860.41 History History: CR 10-109: cr. Register September 2011 No. 669, eff. 10-1-11.

NR 860.42 NR 860.42 Public Hearings.

NR 860.42(1) (1) Any interested person or group of persons, any affected local unit of government, or any state agency, may request a public hearing regarding a permit covered under s. NR 860.40 (1).

NR 860.42(2) (2) Requests for a public hearing under this section shall comply with all of the following:

NR 860.42(2)(a) (a) Be in writing and dated and include the applicant name or number of the proposed permit or application.

NR 860.42(2)(b) (b) Be submitted to the department at the address specified in the public notice by the end of the 30-day public comment period. A request is submitted on the date it is postmarked using U.S. mail or on the date it is delivered to the address specified in the public notice.

NR 860.42(2)(c) (c) Indicate the interests of the requestor and the reasons why a hearing is warranted. The reasons shall relate to the legal requirements for water use permits.

NR 860.42(3) (3) The department shall schedule a public hearing if the request complies with sub. (2) and if the department determines that there is a significant public interest in holding a hearing.

NR 860.42(4) (4) The department shall schedule the public hearing within 30 days after the completion of the 30-day public comment period.

NR 860.42(5) (5) Public notice for a public hearing shall be issued by the department and follow the requirements of s. NR 860.41 (2) and include the information in s. NR 860.41 (3) and the time, date, and the location of the hearing.

NR 860.42(6) (6) The applicant for an individual water use permit shall publish and provide the notice to persons or groups identified in s. NR 860.41 (2) (b) and (c) no later than 10 days before the scheduled hearing date.

NR 860.42(7) (7) Whenever possible, public hearings shall be held in the area affected by the proposed withdrawal or general permit.

NR 860.42(8) (8) Any interested members of the public or representatives of government agencies may participate in a public hearing with respect to the issuance of the proposed permit subject to the procedures in sub. (9). Persons and government agencies participating need not be represented by legal counsel.

NR 860.42(9) (9) Public hearings held under this subsection are not contested case hearings under ch. 227, Stats., and shall be conducted according to all of the following procedures:

NR 860.42(9)(a) (a) Public informational hearings held under this section shall be conducted by a hearing examiner designated by the secretary or secretary’s designee.

NR 860.42(9)(b) (b) The hearing examiner shall open the hearing by concisely stating the scope and purpose of the hearing and explaining the procedures to be used in the hearing. The hearing examiner shall explain how and to whom notice of the final decision approving or disapproving a permit or approval will be provided and how a person may seek administrative or judicial review of the final decision.

NR 860.42(9)(c) (c) Appearance slips shall be submitted by all persons that present an oral statement at the hearing.

NR 860.42(9)(d) (d) Any person may direct informational or clarifying questions through the hearing examiner to a person making oral statements, but cross-examination is not allowed at the hearing.

NR 860.42(9)(e) (e) The hearing examiner may place time limits on individual oral statements to prevent undue repetition or insure that all persons who wish to make a statement can do so in a reasonable period of time.

NR 860.42(9)(f) (f) The hearing examiner may limit the number of representatives that may make oral statements on behalf of any individual or organized group.

NR 860.42(9)(g) (g) Even if oral statements are scheduled, unscheduled oral or written statements also shall be allowed at the hearing.

NR 860.42(9)(h) (h) Any person submitting a written statement at the hearing shall submit at least one legible copy to the hearing examiner.

NR 860.42(9)(i) (i) The hearing examiner may use additional or alternative procedures deemed necessary to insure that the hearing will be conducted in an orderly and expeditious manner, provided the measures are consistent with broad public participation in the hearing.

NR 860.42(9)(j) (j) The hearing examiner may exclude from the hearing a person who engages in loud, noisy, disruptive or contemptuous conduct.

NR 860.42(10) (10) When a public hearing is conducted, the public comment period shall be extended for 10 days starting from the date of the hearing.

NR 860.42(11) (11) The department shall consider the comments received at the hearing and following the hearing in making its decision.

NR 860.42 History History: CR 10-109: cr. Register September 2011 No. 669, eff. 10-1-11.