Chapter TCS 12

TCS 12.04 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87; correction in (5) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1994, No. 462.

TCS 12.05 TCS 12.05 Scoping.

TCS 12.05(1) (1) As soon as possible after the decision to prepare an EIS, the district, in actions where the district is the proponent of an action, or the board, in all other actions, shall notify and inform the public and affected agencies that an EIS will be prepared and that scoping is beginning.

TCS 12.05(2) (2) The scoping process shall include, to the extent possible, affected federal, state and local agencies, the board, the proponent of the action, and other interested persons. The process may consist of meetings, hearings, workshops, surveys, questionnaires, or other appropriate methods or activities, and may be integrated with other public participation requirements.

TCS 12.05(3) (3) The scoping process shall be used to accomplish all of the following:

TCS 12.05(3)(a) (a) Determine the scope and the significant issues to be analyzed in depth in the EIS.

TCS 12.05(3)(b) (b) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review. This will narrow the discussion of these issues in the EIS to a brief presentation of why they will not have a significant effect on the human environment or a reference to their coverage elsewhere.

TCS 12.05(3)(c) (c) Set a time for document preparation and opportunities for public involvement.

TCS 12.05 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.

TCS 12.06 TCS 12.06 Contents of an EIS.

TCS 12.06(1) (1) When an EIS is required, a DEIS and an FEIS shall be prepared by the board, by the district or by a consultant under contract with the board or a district. The board shall supervise and exercise final review of any EIS prepared by a district or a consultant. The DEIS shall emphasize significant environmental issues identified during the scoping process. The FEIS shall be based in part upon comments received on the DEIS and on information received from other sources. An EIS shall provide analysis of the environmental and economic implications of a proposed action contemplated by a district that need board approval. An EIS shall include the following:

TCS 12.06(1)(a) (a) A summary of the scoping process used and the major issues identified for detailed analysis in the EIS.

TCS 12.06(1)(b) (b) A description of the proposed action and of the affected environment including the history and background of the proposed action, location, type of facility, major dimensions, engineering design criteria, general types of materials be used, time schedules, maps and diagrams deemed relevant, sources of funding, permits and approvals required, and other pertinent information which will adequately allow an assessment of the potential environmental impact by persons who want to make comments.

TCS 12.06(1)(c) (c) An evaluation shall be made of the probable environmental consequences, both positive and negative, of the proposed action as it relates to the physical and chemical, biological, social and cultural, and economic environments. Secondary as well as primary consequences to the environment shall be included whenever possible. The discussion shall include adverse environmental effects which cannot be avoided should the proposal be implemented. The EIS shall include impacts which have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.

TCS 12.06(1)(c)1. 1. The evaluation of the physical and chemical environment shall include consideration of the action’s effects upon air quality and climate, surface and ground water quality and quantity, noise, geological structure, topography, minerals and soils, thermal effects, unique land forms and water bodies, and flood and erosion hazards.

TCS 12.06(1)(c)2. 2. The evaluation of the biological environment shall include consideration of the action’s effect upon plant life, animal life, fish and wildlife habitat, ecological relationships, endangered species, migrations, unique plant and animal associations, human health, and hazardous and toxic materials.

TCS 12.06(1)(c)3. 3. The evaluation of the social and cultural environment shall include consideration of the action’s effect upon historic and archeological sites, parks and recreation areas, local institutions and community service, existing and future land uses, community description, housing patterns, neighborhood compatibility, displacement of families, businesses and farms, aesthetics, potential for shared use of facilities or programs, ethnic, religious or other groups, change in population patterns, emergency services, educational facilities and local ordinances.

TCS 12.06(1)(c)4. 4. An evaluation of the economic environment which shall include consideration of the action’s effect upon tax base, property values, employment, community and personal income, business activities and climate, manufacturing, mining and industry, agriculture, transportation, public utilities, energy resources, and government services and costs.

TCS 12.06(1)(d) (d) An evaluation of significant irreversible and irretrievable commitments of resources that would be involved in the proposed action if implemented, including a statement identifying the extent to which the proposed action irreversibly curtails the range of potential uses of the environment.

TCS 12.06(1)(e) (e) 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. The option of doing nothing shall be included as an alternative.

TCS 12.06(1)(f) (f) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity. The EIS shall describe the extent to which the proposed action involves tradeoffs between short-term economic gains at the expense of long-term environmental productivity or vice versa, and the extent to which the proposed action forecloses future options.

TCS 12.06(1)(g) (g) The FEIS shall discuss at appropriate points any responsible opposing view not adequately discussed in the DEIS.

TCS 12.06(1)(h) (h) An analysis shall also be made of significant direct and indirect energy impacts of the proposed action.

TCS 12.06(2) (2) The FEIS shall be an analysis document that enables environmental and economic factors to be considered in the development of a proposed action. It shall be considered by the board in the decision-making process.

TCS 12.06(3) (3) The EIS shall be written in plain language and shall use appropriate graphics to aid decision-makers and the public. Where appropriate, an EIS may be combined with other required environmental or planning documents. The text of the FEIS shall normally be less than 150 pages and in proposed actions of unusual magnitude or complexity shall normally be less than 300 pages.

TCS 12.06(4) (4) If the board makes substantial changes in the proposed action that are relevant to environmental concerns, or if there are significant new circumstances or information relevant to environmental concerns that have bearing on the proposed action or its impacts, that arise after preparation of the FEIS, but before substantial implementation of the action, the board shall prepare supplements to the FEIS. If a supplement is prepared it shall be distributed and reviewed in the same manner as a DEIS or a FEIS as provided in s. TCS 12.07.

TCS 12.06 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87; correction in (4) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1994, No. 462.

TCS 12.07 TCS 12.07 Distribution and review of the DEIS.

TCS 12.07(1) (1) Distribution of the DEIS. Copies of the DEIS shall be distributed as follows:

TCS 12.07(1)(a) (a) The governor’s office.

TCS 12.07(1)(b) (b) State, federal, and local governmental agencies having special expertise, interest or jurisdiction.

TCS 12.07(1)(c) (c) Regional and county planning agencies located within the proposed action area.

TCS 12.07(1)(d) (d) Libraries in the area of the proposed action.

TCS 12.07(1)(e) (e) Department of transportation — bureau of environmental data analysis.

TCS 12.07(1)(f) (f) Department of natural resources — bureau of environmental analysis and review.

TCS 12.07(2) (2) Requested copies. Copies of the DEIS shall also be provided to any individual or group requesting a copy. A charge may be assessed to cover reproduction and handling costs.

TCS 12.07(3) (3) Notice of availability of the DEIS.

TCS 12.07(3)(a) (a) An announcement sheet giving a brief description of the proposed action, description of the administrative procedures to be followed, the date by which comments on the DEIS are to be submitted to the district, and the locations where copies of the DEIS are available for review will be circulated as follows:

TCS 12.07(3)(a)1. 1. All local and regional units of government which have jurisdiction over the area that may be affected by the proposed action or reasonable alternatives to the proposed action. A request will be made for posting the announcement sheet at the places normally used for public notice.

TCS 12.07(3)(a)2. 2. Local and regional news media in the area affected.

TCS 12.07(3)(a)3. 3. Groups, clubs, committees, or individuals which have demonstrated an interest and have requested receipt of this type of information.

TCS 12.07(3)(a)4. 4. All participants in the scoping process not covered in sub. (1) (a) to (c).

TCS 12.07(3)(b) (b) The announcement under par. (a) shall be published as a class I notice, under ch. 985, Stats., in a newspaper published in the district where the proposed action is to occur.

TCS 12.07(4) (4) Period of time for comment on the DEIS. A minimum of 45 days from the date the DEIS is mailed shall be allowed for the receipt of comments from state, federal and local agencies and the public.

TCS 12.07(5) (5) Informational hearing.

TCS 12.07(5)(a) (a) The board shall hold a public hearing on the DEIS. The hearing shall be noticed as follows:

TCS 12.07(5)(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 or license of 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 proposed action lies; to the governing bodies of any towns, villages or cities contiguous to any town, village or city within which any part of the proposed action lies; and to interested persons who have requested such notification.

TCS 12.07(5)(a)2. 2. At least 25 days prior to the hearing, a notice shall be published as a class I notice, under ch. 985, Stats., in a newspaper circulated in the affected area or, for actions of statewide significance, in the official state newspaper.

TCS 12.07(5)(b) (b) The hearing shall be held in the affected area. On actions of statewide significance, the hearing may be held in Madison.

TCS 12.07(5)(c) (c) The hearing shall be recorded either stenographically or electronically.

TCS 12.07 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87; corrections made under s. 13.93 (2m) (b) 1., Stats., Register, April, 1999, No. 520.

TCS 12.08 TCS 12.08 Conversion of DEIS to FEIS. After considering the testimony received at the public hearing on the DEIS, and undertaking whatever further investigation in response to that testimony deemed necessary, the board may convert a DEIS to an FEIS. The conversion 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.

TCS 12.08 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.

TCS 12.09 TCS 12.09 Distribution and review of the FEIS.

TCS 12.09(1) (1) Distribution. The FEIS shall be distributed in the same manner as the DEIS under s. TCS 12.07, and shall also be distributed to any person, organization or agency that submitted comments on the DEIS.

TCS 12.09(2) (2) Notice of availability. The availability of the FEIS will be announced through a notice similar to the notice of availability of the DEIS under s. TCS 12.07 (3).

TCS 12.09(3) (3) Requested copies. A charge may be assessed to individuals or groups requesting the FEIS to cover reproduction and handling costs.

TCS 12.09(4) (4) Period of time for comment on the FEIS. A period of not less than 30 days from the date the FEIS is mailed shall be allowed for receipt of comments from state and federal agencies and the public.

TCS 12.09(5) (5) Public hearing. The board shall hold a public hearing on the FEIS. The hearing shall be announced through the notice of availability of the FEIS which shall be published as a class I notice, under ch. 985, Stats., 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.

TCS 12.09 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87; correction in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1994, No. 462.

TCS 12.10 TCS 12.10 Contested case hearing.

TCS 12.10(1) (1) Petition for contested case hearing. The board shall grant a petition for a contested case hearing on the FEIS when the petition contains a statement of the specific reasons why the petitioner believes a contested case hearing should be held and the petition contains sufficient facts for the board to determine that:

TCS 12.10(1)(a) (a) The petitioner satisfies the criteria of s. 227.42, Stats.; or

TCS 12.10(1)(b) (b) The petitioner has an individual interest in the outcome of the proceeding and a public interest will be served by holding a contested case hearing.

TCS 12.10(2) (2) Time limit for petition. Any petition received by the board requesting a contested case hearing more than 20 days after the date of publication of the notice of availability shall be denied.

TCS 12.10(3) (3) Hearing.

TCS 12.10(3)(a) (a) If the board grants a request for a contested case hearing, the board shall inform the person making the request about the date, time and place of the hearing.

TCS 12.10(3)(b) (b) In the event that more than one request for a contested case hearing on the FEIS is granted, the board shall consolidate the requests and hold one hearing.

TCS 12.10(3)(c) (c) 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.

TCS 12.10(3)(d) (d) The hearing shall be held in accordance with the board’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. Rescheduling of hearings shall be at the board’s discretion and shall be granted only for good cause.

TCS 12.10(4) (4) Evidence, discovery and disclosure.

TCS 12.10(4)(a) (a) The FEIS shall be received into the hearing record as an exception to the hearsay rule and shall be considered by the board in making its decision for whatever probative value the FEIS has.

TCS 12.10(4)(b) (b) Notwithstanding any other rule of the board, the parties in proceedings under this section 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.

TCS 12.10(4)(c) (c) Not less than 10 days before the hearing the parties shall file with the board:

TCS 12.10(4)(c)1. 1. The names and addresses of all witnesses, including adverse witnesses, that the party may call to testify at the hearing;

TCS 12.10(4)(c)2. 2. A detailed written summary of the testimony to be elicited from each witness identified in subd. 1., including any option 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 an oath or affirmation; and

TCS 12.10(4)(c)3. 3. 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.

TCS 12.10(4)(d) (d)

TCS 12.10(4)(d)1. 1. Any witness whose name, address and summary of testimony is not provided as required in par. (c) 1. and 2. shall not be permitted to testify at the hearing. No witness may testify on any matter not included in the summary of testimony.

TCS 12.10(4)(d)2. 2. No document or other writing or a copy of detailed description of any demonstrative evidence not filed as provided in par. (c) 3. may be made part of the record.

TCS 12.10(4)(e) (e) Unless objected to by the board, 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 board 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 board 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 board for whatever probative value that testimony has in making its decision.

TCS 12.10 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.

TCS 12.11 TCS 12.11 Record of decision. Where an EIS is prepared, the board shall also, at the time of its final decision, prepare a record of decision. The record of decision shall identify all alternatives considered in the order of their environmental preference. The record of decision for the alternative selected shall state whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why they were not.

TCS 12.11 Note Note: The final draft of the EIS issued by the board, and the record of decision provided in s. TCS 12.09, are intended to satisfy the decision requirement of s. 227.47, Stats.

TCS 12.11 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.