CR 15-037 Rule Text

Procedures for WEPA compliance determinations and publication requirements have been clarified.

This proposed permanent rule includes clarification changes regarding strategic analysis requirements. Consistent with the intent of the current rule, the rule clarifies that a strategic analysis is required for review of significant policies, but for other policies or issues the strategic analysis may be used as a discretionary tool.

The list of minor actions, not requiring environmental analysis, has been expanded to include actions that originally were intended to be outlined in program guidance. The April 2014 version relied on reference to “routine and small-scale” permits or approvals as a catch-all category for minor actions that would be listed in guidance and reviewed by the public through the guidance review process. The revision in this proposed permanent rule clarifies by rule the list of activities that are minor actions.

 

The terminology of “equivalent analysis actions,” for which a detailed environmental analysis and public disclosure are already conducted as part of department programmatic procedures, has been changed to “integrated analysis actions” and the definition has been clarified to explain that no separate environmental analysis process is required. The list for this category has been expanded and amended to provide additional clarity on actions covered under this subsection.

The list of prior compliance actions, for which one or more environmental analysis documents exist for similar prior actions, has been expanded to provide additional clarity on actions covered under this subsection.

6. Summary of, and comparison with, existing or proposed federal statutes and regulations:

The 1970 Wisconsin Environmental Policy Act (WEPA) and s. 1.11, Stats., were modeled after the federal

National Environmental Policy Act (NEPA) of 1969. NEPA created the Council on Environmental

Quality (CEQ), which established guidelines and regulations to implement the Act. As with other state

agencies' WEPA rules, ch. NR 150 and these clarifying provisions are based in part upon the federal CEQ guidelines. This proposed revision of ch. NR 150 will remain substantially consistent with the CEQ guidelines as required under s. 1.11 (2)(c), Stats.

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota):

Neighboring states have significant differences in their related laws, so the opportunity to gain from their experience is limited. For example, Minnesota requires that counties also follow WEPA-like analysis procedures, whereas Wisconsin counties have no such requirements. Illinois' law covers only actions conducted by the state itself, whereas in Wisconsin, WEPA applies to all actions by other entities that are subject to state approvals.

8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: Department of Natural Resources staff obtained the input of an internal team of staff from several department programs, building on the prior review of relevant WEPA case law and federal CEQ regulations.

9. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact report: Chapter NR 150 is an administrative process rule that applies internally to the department, so impacts to businesses are minimal.

10. Effect on small business (initial regulatory flexibility analysis):

There will be no impact to small business as a result of this rule revision. This proposed permanent rule will benefit small businesses to the extent that they clarify any ambiguity of the intent of the rule, as presented to the public and approved by the NRB.

11. Agency contact person:

Jim Pardee

Phone: [phone]

SECTION 1. NR 150.02 (Note) is created to read:

NR 150.02 (Note) There are several statutory exemptions from s. 1.11, Stats., including the following: s. 30.025, Stats. (construction of certain high voltage transmission lines); ss. 160.23 and 160.25, Stats. (responses to groundwater standards exceedances); s. 283.93, Stats. (WPDES permit actions, except for WPDES permit actions for new sources); s. 285.60(2g)(b) and (3)(b), Stats. (air registration permits and general permits); and ss. 295.44, 295.45, 295.65, and 295.645, Stats. (ferrous mining exploration licenses, bulk sampling approvals, successor operators, and responses to groundwater standards exceedances). The department may have previously conducted environmental analyses under s. 1.11 Stats., for actions that are exempt under s. 283.93, Stats., even though the department was not statutorily required to do so.

SECTION 2. NR 150.03 (5m) and (12m) are created to read:

NR 150.03 (5m) “Department facility” means department infrastructure, including dams, buildings, roads, and trails for resource management, public use, or other purposes.

(12m) "Integrated analysis action" means a department action for which department programmatic procedures provide for public disclosure and include an environmental analysis that provides sufficient information to establish that an environmental impact statement is not required.

SECTION 3. NR 150.03 (1) is amended to read:

NR 150.03 (1) “Action” means any final decision by the department to exercise the department’s statutory or administrative rule authority that affects the quality of the human environment including actions under s. NR 150.20 (1m) to (4), but not including policies as defined in sub. (19).

SECTION 4. NR 150.03 (10) and (11) are repealed.

SECTION 5. NR 150.03 (15) (intro.) is amended to read:

NR 150.03 (15) (intro.) “Minor action” means a department action that is not subject to s. 1.11 (2) (c), Stats., because it is not in conflict with local, state or federal environmental policies and is not likely to do any of the following:

SECTION 6. NR 150.03 (16m) and (17m) and (Note) are created to read:

NR 150.03 (16m)“Natural resource management, timber management, or environmental restoration” includes all actions associated with the management, economic production, protection, and restoration of native and non-native fish, game, plants, trees and timber, habitat protection, habitat management, habitat restoration, silvicultural practices, forest inventory, chemical and mechanical site preparation, timber harvesting, timber sales, timber transporting, tree planting, direct seeding, forest type conversions, invasive species control, timber stand improvement activities, forest nursery operations, prescribed burning, fire prevention, fire detection, fire suppression, rehabilitation of fire burned areas, environmental remediation, fish hatchery operations, state game farm operations, pesticide or herbicide applications, and field surveys for environmental protection.

(17m) “New source” has the meaning given in s. 283.01(8), Stats.

Note: Section 283.01(8), Stats., defines “new source” to mean any point source the construction of which commenced after the effective date of applicable effluent limitations or standards of performance.

SECTION 7. NR 150.03 (19) is amended to read:

NR 150.03 (19) "Policy” means a written plan or set of guiding principles, priorities, or protocols to guide department action that has been enacted as a statute, promulgated as an administrative rule, issued as a department manual code, or approved in writing by the natural resources board or the department secretary, but does not include actions as defined in sub. (1).

SECTION 8. NR 150.03 (23m) is created to read:

NR 150.03 (23m) “Publicly announce” or “public announcement” means publication on the department’s internet web site, or other reasonable methods to provide public notice.

SECTION 9. NR 150.03 (25) and (26) are amended to read:

NR 150.03 (25) “Strategic analysis” means an environmental and alternatives analysis of any an issue or policy which involves unresolved conflicts concerning alternative uses of available resources, within the meaning of s. 1.11 (2) (e), Stats.

(26) “Unresolved conflicts concerning alternative uses of available resources” means an unsettled disagreement between experts, policymakers of local, state, or tribal governments, or citizen interest groups in Wisconsin concerning a department policy affecting the utilization of a substantial natural resources, between experts, policymakers of local, state, or tribal governments, or citizen interest groups in Wisconsin or physical resource where the utilization would be of sufficient magnitude that, on a statewide or regional basis, it would have a considerable and important impact to the natural resources of the state. To be considered an unresolved conflict concerning alternative uses of available resources, the disagreeing parties must have identified a technically and economically feasible alternative use of the contested physical or natural resource, or both, and have the ability to reasonably implement that alternative.

SECTION 10. NR 150.10 (1) and (1m) (a) are amended to read:

NR 150.10 (1) GENERAL REQUIREMENT PURPOSE. Pursuant to This section establishes the procedures to fulfill the requirements of s. 1.11 (2) (e) and (h), Stats., the department shall study, develop, and describe alternatives for natural resource issues or policies which involve unresolved conflicts concerning alternative uses of available resources.

(1m) (a) Administrative rules and manual codes Policies. The department shall conduct a strategic analysis for all new or revised administrative rules and manual codes policies if both of the following apply:

1. The rule or manual code policy involves unresolved conflicts concerning alternative uses of available resources.

2. The department has substantial discretion in formulating important provisions of the rule or manual code policy.

SECTION 11. NR 150.10 (1m) (b) is repealed.

SECTION 12. NR 150.10 (1m) (c) (intro.) and (2) (a) are amended to read:

NR 150.10 (1m) (c) Other issues or policies. (intro.) The Although not required under this section, the department may conduct a use the strategic analysis processes in subs. (2) to (4) for any of the following issues or policies:

(2) (a) General requirement. The department shall determine the scope of important issues to be analyzed the analysis, potential alternative approaches, potentially affected natural resources, and likely effects of the alternatives on those resources. The department shall also identify incomplete or unavailable information that is relevant to a reasoned choice among alternatives.

SECTION 13. NR 150.20 (1) and (1m) (a), (b), and (d) are amended to read:

NR 150.20 (1) PROCEDURES ESTABLISHED PURPOSE. This section establishes appropriate procedures for the environmental analysis that WEPA requires for all department actions except those specifically exempted by statute. Notwithstanding subs. (1m) to (3), the department may determine to follow the EIS procedures in s. NR 150.30 for any action the procedures to fulfill the requirements of s. 1.11(2)(c), Stats.

(1m) (a) A real estate action, including property boundary establishment or modification, purchase, sale, easement, lease, or designation, redesignation, or dedication.

(b) Facility development Development or construction of new department facilities that follows protocols.

(d) The operation, repair, maintenance, removal, or in-kind replacement of existing department facilities that follows protocols.

SECTION 14. NR 150.20 (1m) (ge), (gm), and (gs) are created to read:

NR 150.20 (1m) (ge) Educational activities.

(gm) Model ordinances developed to assist municipalities in the creation of ordinances.

(gs) Consultation offered to third parties.