Statement of Scope
Department of Natural Resources
Rule No.: | WA-17-21(E) and WA-18-21 |
Relating to: | Revisions to chs. NR 500 and 520 related to disposal of material dredged from the Great Lakes |
Rule Type: | Permanent and Emergency |
1. Finding/nature of emergency:
2021 Wisconsin Act 93 (Act 93), effective July 1, 2022, establishes requirements and exemptions relating to materials dredged from Great Lakes and directs the department to promulgate emergency rules no later than January 1, 2023. The Act states that the department “shall use the procedure under s. 227.24 to promulgate rules under s. 289.43 (8) (d) 1. no later than the first day of the 7th month beginning after the effective date of this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the first day of the 36th month beginning after the effective date of the emergency rules or the date on which permanent rules take effect, whichever is earlier. … Notwithstanding s. 227.24 (1) (a) and (3), the department of natural resources is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.” 2. Detailed description of the objective of the proposed rule:
2021 Wisconsin Act 93 provided a new exemption from certain state solid waste facility licensing requirements for the disposal of dredged material conducted by municipalities in Lake Michigan or Lake Superior. Emergency and permanent rulemaking is required under Act 93. The emergency rule must pertain to sediment sample analysis, the number of samples to be collected, and other items determined to be necessary by the department. The department anticipates that this rule will impact chs. NR 500 and 520, Wis. Adm. Code, but this may change in the rule development process. Under Act 93, dredged material need not be disposed of in a solid waste facility that has obtained an operator’s license and approved plan of operation if the department determines that all of the following requirements are satisfied, based on information submitted in an application:
—The material is dredged by a municipality or county, or a contractor of a municipality or county.
—The material is dredged from Lake Michigan, Lake Superior, or bays or harbors of those lakes.
—The dredging and disposal will have a demonstrable economic public benefit, defined to mean an economic benefit to the community or region that is measurable, such as increased access to natural resources, local spending by the proposed project, employment, or community investment.
—The cumulative adverse environmental impact of the dredging is insignificant and will not injure public rights or interests, cause environmental pollution, or result in material injury to the rights of any riparian owner.
—The disposal facility is in compliance with performance standards established by the department by rule.
—The disposal facility will accept dredged material for a period not to exceed 10 years or in an amount not to exceed 35,000 cubic yards in total, whichever occurs first. However, the exemption is voided if there is a material adverse change in the contamination in the dredged material that would be disposed of at the facility, or if there is a material change in the intended use of the dredged material.
—The disposal facility is not located within 100 feet of any wetland or critical habitat area or within a floodplain, unless the project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities, such as the construction of a parking lot, public swimming area, or other improvement, and that has no unique ecological value.
—The disposal facility is not located less than 100 feet from any water supply well.
—The disposal facility will confine the disposal area to as limited a geographic area as is practicable.
—The disposal facility and application are in compliance with any other conditions established by the department by rule.
Act 93 requires a municipality, county, or contractor to submit an application containing certain
information to the department at least 60 days prior to beginning the disposal authorized by Act 93 and specifies that the department may not review the application until the department determines it is complete. An application may address the disposal of dredged material from a single dredging location at multiple disposal sites. The application is considered approved if the department does not provide a written objection to the application within 30 days of a complete application submittal.
The emergency and permanent rules would:
—Identify sediment sampling and analysis requirements prior to disposal, using as a guide the existing ch. NR 347, Wis. Adm. Code, “Sediment Sampling and Analysis, Monitoring Protocol and Disposal Criteria for Dredging Projects.” —Clarify disposal, operational requirements, and sediment sample requirements intended to prevent potential long term negative environmental effects or potential impacts to fish and wildlife habitat, water and groundwater quality, public health, private riparian rights and public recreation.
—Define waste boundaries and locational criteria that would apply when determining distance from wetlands, floodplains, water supply wells, separation to groundwater, or other locational and performance standards.
—Identify disposal facility performance standards, such as those listed in s. NR 504.04 (4), Wis. Adm. Code.
—Define the maximum 10-year exemption period for the dredge disposal facility and associated tracking and notification procedures.
—Define procedures, such as a deed or other legal document, for documenting the establishment of a dredge disposal facility.
—Define requirements for tracking dredge disposal amounts at a facility in order to prevent disposing of more than 35,000 cubic yards at that site, including procedures for how and when the disposal volume of the dredged materials is determined.
—Define requirements for covering and re-seeding the disposal facility after dredge disposal activity.
—Define requirements or reference other codes regarding storm water run-off pollution prevention control requirements at the disposal facility.
—Define procedures for determining and notifying the department when there is a material adverse change in the contamination of the dredged material that would be disposed of at the facility, or if there is a material change in the intended use of the dredged material.
—Identify the information required to make an application complete.
—Identify or describe the response options the department may provide after receipt of a complete application.
—Describe recordkeeping and reporting requirements for the disposal facility.
—Describe documentation and review by the department when a project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities.
Additional rule changes may be pursued which are reasonably related to those discussed here.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
Dredging projects primarily consist of three steps: 1) remove sediment from a waterbody using either mechanical or hydraulic methods; 2) process the dredged material, including dewatering and transportation from the removal site to a location for use or disposal; 3) place and potentially dewater the dredged material. Permits or regulatory approvals from the department may be required at each of these three steps. In order to conduct a successful dredging project, while minimizing the impact of dredging on the environment, the quality and quantity of sediment to be removed needs to be assessed to ensure that all dredging activities meet permit or regulatory requirements. 2021 Wisconsin Act 93 and this rulemaking only address step 3, the placement or disposal of dredged material. There are no changes to existing reviews or approvals needed when removing or processing dredged material. Wisconsin law contains licensing requirements and other regulations governing solid waste disposal. In general, any “solid waste” must be disposed of in a facility that has obtained a solid waste facility license and an approved plan of operation, among other requirements. However, the statutes and administrative codes provide exemptions from the general licensing and regulatory requirements for disposal of specified categories of waste, such as dredged material.
Dredged material, or sediment, meets the definition of a solid waste when it is removed from a water body. Existing administrative rules provide an exemption for the disposal of dredged material from the Great Lakes. [s. NR 500.08 (3), Wis. Adm. Code.] Under this exemption, a disposal facility/location is exempt from licensing and plan review requirements if the total disposed is less than 3,000 cubic yards of dredged material and complies with the performance standards specified in s. NR 504.04 (4), Wis. Adm. Code. This rule will likely incorporate similar performance standards, which are intended to prevent the disposal activity from the following:
