Chapter 283

283.63 283.63 Review of permits, decisions, terms and conditions.

283.63(1) (1) Any permit applicant, permittee, affected state or 5 or more persons may secure a review by the department of any permit denial, modification, termination, or revocation and reissuance, the reasonableness of or necessity for any term or condition of any issued, reissued or modified permit, any proposed thermal effluent limitation established under s. 283.17 or any water quality based effluent limitation established under s. 283.13 (5). Such review shall be accomplished in the following manner:

283.63(1)(a) (a) A verified petition shall be filed with the secretary setting forth specifically the issue sought to be reviewed by the department. Such petition must be filed within 60 days after notice of any action which is reviewable under this section is issued by the department. The petition shall indicate the interest of the petitioners and the reasons why a hearing is warranted. Upon receipt of such petitions, the department shall provide a notice of public hearing in accordance with the requirements of s. 283.39 (1) at least 10 days prior to holding a public hearing thereon. The public notice shall be considered to be provided on the date specified in s. 283.39 (1m).

283.63(1)(am) (am) After a verified petition for review is filed and until the last day for seeking review of the department’s decision or a later date fixed by order of the reviewing court, any term or condition, thermal effluent limitation or water quality based effluent limitation which is the subject of the petition is not effective. All other provisions of the permit continue in effect except those for which an application for a variance has been submitted under s. 283.15 or 283.16. For those provisions for which a petition for review has been submitted under this section, the corresponding or similar provisions of the prior permit continue in effect until the last day for seeking review of the department’s final decision or a later date fixed by order of the reviewing court.

283.63(1)(b) (b) The department shall hold a public hearing at the time and place designated in the notice of hearing. At the beginning of each such hearing the petitioner shall present evidence to the department which is in support of the allegation made in the petition. All interested persons or their representative shall be afforded an opportunity to present facts, views or arguments relevant to the issues raised by the petitioners, and cross-examination shall be allowed. The department shall consider anew all matters concerning the permit denial, modification, termination, or revocation and reissuance. No person may be required to appear by attorney at any hearing under this section.

283.63(1)(c) (c) Any duly authorized representative of the department may administer oaths or affirmations, compel the attendance of witnesses and the production of information by subpoena and continue or postpone the hearing to such time and place as the department determines.

283.63(1)(d) (d) The department shall issue its decision on the issues raised by the petitioner within 90 days after the close of the hearing.

283.63(2) (2) The decisions of the department issued under this section shall be subject to judicial review as provided in ss. 227.52 to 227.58.

283.63(3) (3) Subsections (1) and (2) do not apply if a hearing on the permit application is conducted as a part of a hearing under s. 293.43.

283.63(4) (4) Subsections (1) and (2) do not apply to the modification of a permit which implements a decision under s. 283.15 or 283.16 or the denial of a request for a variance under s. 283.15 or 283.16. A proceeding under subs. (1) and (2) shall not be delayed pending completion of the review of a variance request under s. 283.15 or 283.16.

283.63(5) (5) Rules promulgated under s. 281.15 may not be reviewed under this section. The application of rules promulgated under s. 281.15 may be reviewed under this section.

283.63 History History: 1973 c. 74; 1979 c. 110, 221; 1985 a. 182 s. 57; 1987 a. 27, 60; 1995 a. 227 s. 875; Stats. 1995 s. 283.63; 2011 a. 167; 2013 a. 378.

283.63 Annotation The judicial review procedure under this section, in conjunction with s. 227.05 [now s. 227.40], is exclusive. Sewerage Commission v. DNR, 102 Wis. 2d 613, 307 N.W.2d 189 (1981).

283.63 Annotation Timely review under s. 147.20 [now this section] of a modified permit does not reopen for consideration those unmodified portions of the permit for which the review period has expired. Village of Thiensville v. DNR, 130 Wis. 2d 276, 386 N.W.2d 519 (Ct. App. 1986).

283.63 Annotation This section does not require the Department of Natural Resources (DNR) to hold a public hearing on a petition for review when the premise of the petition is that the permit fails to comply with basic requirements of the federal Clean Water Act and federal regulations promulgated thereunder. By approving the Wisconsin pollutant discharge elimination system permit program and by failing to object to the permit, the U.S. Environmental Protection Agency (EPA) effectively determined that the permit complies with federal regulations. Requiring DNR to subsequently determine whether the permit complies with those same federal regulations would be to empower DNR to undercut EPA’s determination. Andersen v. DNR, 2011 WI 19, 332 Wis. 2d 41, 796 N.W.2d 1, 08-3235.

283.63 Annotation Sewerage Commission, 102 Wis. 2d 613 (1981), explicitly held that the commission’s failure to follow the procedure set forth in this section precluded a later challenge under ch. 227, because this section is the exclusive method of administrative and judicial review of the Department of Natural Resources’ action. Because the contested case procedure to challenge a pollution discharge elimination system permit is exclusive, it follows that no other procedure, whether a rule challenge, a declaratory judgment, or as here, a premature judicial review petition, can circumvent it. Clean Water Action Council of Northeast Wisconsin v. DNR, 2014 WI App 61, 354 Wis. 2d 286, 848 N.W.2d 336, 13-2112.

subch. V of ch. 283 SUBCHAPTER V

GENERAL PROVISIONS; ENFORCEMENT

283.81 283.81 Waiver. The department may waive compliance with any requirement of this chapter or shorten the time periods under this chapter to the extent necessary to prevent an emergency condition threatening public health, safety or welfare.

283.81 History History: 1983 a. 410; 1995 a. 227 s. 850; Stats. 1995 s. 283.81.

283.82 283.82 Land application of sewage sludge.

283.82(1) (1) The department shall oversee, set technical standards for, and regulate the application of sewage sludge to land.

283.82(2) (2) No city, village, town, or county may prohibit, through zoning or any other means, the application of sewage sludge to land if that application complies with this section and rules promulgated under this section.

283.82(3) (3) A city, village, town, or county may regulate the application of sewage sludge to land if the regulation is identical to regulations of the department under sub. (1).

283.82 History History: 2005 a. 347.

283.83 283.83 Continuing planning process.

283.83(1) (1) The department shall establish a continuing water quality management planning process which is consistent with applicable state requirements. The continuing planning process shall result in plans for all waters of the state, which plans shall include:

283.83(1)(a) (a) Adequate effluent limitations and schedules of compliance;

283.83(1)(b) (b) The incorporation of all elements of any applicable areawide water quality management plans, basin plans and statewide land use plans;

283.83(1)(c) (c) Total maximum daily load for pollutants;

283.83(1)(d) (d) Procedures for revision;

283.83(1)(e) (e) Procedures for intergovernmental cooperation;

283.83(1)(f) (f) Implementation procedures, including schedules of compliance, for revised or new water quality standards;

283.83(1)(g) (g) Controls over the disposition of all residual waste from any water treatment processing;

283.83(1)(h) (h) An inventory and ranking, in order of priority, of needs for construction of waste treatment works required to meet applicable requirements.

283.83(1m) (1m) 

283.83(1m)(a) (a) The department shall approve or reject proposed revisions to the areawide water quality management plan for the area consisting of Dane County. The department shall base a decision under this paragraph on whether the proposed revision complies with the water quality standards under s. 281.15. The department may place conditions on its approval of a proposed revision to the plan.

283.83(1m)(b) (b) The department, or a person contracting with the department under par. (f), may not require information concerning a proposed revision to the areawide water quality management plan for the area consisting of Dane County other than information that is reasonably necessary to determine whether the proposed revision complies with water quality standards under s. 281.15.

283.83(1m)(c) (c)

283.83(1m)(c)1. 1. Except as provided under subd. 2., the department shall approve or reject a proposed revision to the areawide water quality management plan for the area consisting of Dane County no later than the 90th day after the day on which the department, or a person contracting with the department under par. (f), receives the formal application for the proposed revision, including a letter from the applicant certifying that the proposed revision is consistent with water quality standards and information supporting the certification. If the department determines that the application is incomplete, the department shall notify the applicant in writing within 10 days after the department receives the application and may make only one request for additional information during the 90-day period under this subdivision.

283.83(1m)(c)2. 2. If the department does not approve or reject a proposed revision to the areawide water quality management plan by the 90th day after the day on which the request is received, the revision is approved on the 120th day after the day on which the department receives the formal application for the revision, unless the department petitions the circuit court for an order extending the time to act on the proposed revision. The court may issue an order extending the time for the department to act on the proposed revision by an amount it determines is reasonable.

283.83(1m)(e) (e) The department may not contract with Dane County or any of its subunits, including the Dane County lakes and watershed commission, to provide advisory services relating to the review of proposed revisions to the areawide water quality management plan for the area consisting of Dane County.

283.83(1m)(f) (f) Except as provided in par. (e), the department may contract with a regional planning commission or other entity to provide advisory services relating to the review of proposed revisions to the areawide water quality management plan for the area consisting of Dane County, but the department may not delegate its authority to approve or reject proposed revisions. The deadline under par. (c) 1. is not affected by a contract entered into under this paragraph.

283.83(2) (2) When the department receives for review or prepares a new plan under sub. (1) or a revision to a plan under sub. (1) that includes a proposal to return water transferred from the Great Lakes basin to the source watershed through a stream tributary to one of the Great Lakes, the department shall provide notice of the plan or revision to the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream.

283.83 History History: 1973 c. 74; 1995 a. 227 s. 878; Stats. 1995 s. 283.83; 2007 a. 227; 2015 a. 55.

283.83 Cross-reference Cross-reference: See also chs. NR 121 and 212, Wis. adm. code.

283.84 283.84 Trading of water pollution credits.

283.84(1) (1) The department shall administer a program for the trading of water pollution credits that is consistent with the federal Water Pollution Control Act, 33 USC 1251 to 1387. Subject to sub. (1m), under the program the department may authorize a person required to obtain a permit to increase the discharge of pollutants above levels that would otherwise be authorized in the permit if the person does one of the following:

283.84(1)(a) (a) Reaches a binding, written agreement with another person who is required to obtain a permit under which the other person agrees to reduce the discharge of pollutants below the levels that would otherwise be authorized in the other person’s permit.

283.84(1)(b) (b) Reaches a binding, written agreement with another person who is not required to obtain a permit under which the other person agrees to reduce the amount of water pollution that it causes below the levels of water pollution that it causes when the agreement is reached.

283.84(1)(c) (c) Reaches a binding, written agreement with the department or a local governmental unit, as defined in s. 16.97 (7), under which the person pays money to the department or local governmental unit and the department or local governmental unit uses the money to reduce water pollution or to provide cost-sharing, for the purposes of s. 281.16 (3) (e) or (4), for projects to reduce water pollution.

283.84(1)(d) (d) Reaches a binding, written agreement with the department under which the person reduces the discharge of pollutants under another permit that the person holds below the levels that would otherwise be authorized in the other permit.

283.84(1)(e) (e) Reaches a binding, written agreement with the department under which the person constructs a project or implements a plan that results in reducing the amount of water pollution from sources other than the source covered by the permit.

283.84(1)(f) (f) Reaches a binding, written agreement with a clearinghouse that holds a valid contract under s. 16.9685 to purchase credits from the clearinghouse, if the clearinghouse has consulted with the department about the agreement to the extent required under the contract under s. 16.9685.

283.84(1)(g) (g) Reaches a binding, written agreement approved by the department with a 3rd party under which the 3rd party agrees to work with one or more persons, other than the permit holder, to reduce the amount of water pollution that those persons cause below the levels of water pollution that those persons cause when the agreement is reached. If an agreement is reached under this paragraph, the person who is required to obtain a permit or the 3rd party shall notify the clearinghouse that holds a valid contract under s. 16.9685, if any, and shall report to the clearinghouse, in the time and manner specified by the department, any information that the department, in consultation with the department of administration, determines is reasonable and necessary for the operation of the centralized registry under s. 16.9685 (3) (h). The 3rd party shall also verify the credit by reporting to the department of natural resources any pertinent information regarding the agreement and the related water pollution reduction activities, including the location of the activities; the type of practice or technology used; any maintenance schedule; the frequency of inspections; the duration for which the credit is valid; and the amount of credits generated by the water pollution reduction activities.

283.84(1e) (1e) No later than 45 days after reviewing the information provided under s. 16.9685 (3) (g) and (h), the department shall certify the amount of credits and the duration of the credits available for sale.

283.84(1m) (1m) Under the program, the department may authorize a person to increase a discharge of pollutants above levels that would otherwise be authorized in the permit only if all of the following apply:

283.84(1m)(a) (a) The agreement under sub. (1) results in an improvement in water quality.

283.84(1m)(b) (b) The increase in pollutants and the reduction in pollutants provided for in the agreement under sub. (1) involve the same pollutant or the same water quality standard.

283.84(1m)(d) (d) Except as provided under par. (e) 1., the increase in pollutants and the reduction in pollutants occur within the same basin or portion of a basin, as determined by the department.

283.84(1m)(e) (e)

283.84(1m)(e)1. 1. If the person has entered into an agreement under sub. (1) (f) or (g), the increase in pollutants and the reduction in pollutants occur within the same applicable hydrologic area, as determined by the department.

283.84(1m)(e)2. 2. In this paragraph, “applicable hydrologic area” means the largest area possible within this state to facilitate implementation of this section while achieving water quality standards and any applicable federally approved total maximum daily load allocations.

283.84(3m) (3m) A person engaged in mining, as defined in s. 293.01 (9) or 295.41 (26), prospecting, as defined in s. 293.01 (18), bulk sampling, as defined in s. 293.01 (2m) or 295.41 (7), or nonmetallic mining, as defined in s. 295.11 (3), may not enter into an agreement under sub. (1).

283.84(3r) (3r) The department shall include terms and conditions related to agreements under sub. (1) in new and reissued permits. The department shall determine how to incorporate credits purchased under sub. (1) (f) and the terms and conditions related to agreements entered into under sub. (1) (g) into new and reissued permits.

283.84(4) (4) The department shall modify the permits of persons entering into agreements under sub. (1) to enable the agreements to be implemented and to include terms and conditions related to the agreements.

283.84(5) (5) The department may enter into a memorandum of understanding with the federal environmental protection agency relating to the administration of this section and s. 16.9685 in relation to the operations of a central clearinghouse.

283.84(6) (6) The department may promulgate rules for the administration of this section.

283.84 History History: 1997 a. 27; 2001 a. 16; 2003 a. 33; 2011 a. 151; 2013 a. 1; 2017 a. 134; 2019 a. 151.

283.85 283.85 Design of publicly owned treatment facilities.

283.85(1) (1) The department shall encourage the design of publicly owned treatment works which provide for:

283.85(1)(a) (a) The recycling of sewage pollutants by using them in agriculture, silviculture or aquaculture;

283.85(1)(b) (b) The confined and contained disposal of those pollutants not recycled;

283.85(1)(c) (c) The reclamation of wastewater;

283.85(1)(d) (d) The ultimate disposal of sludge in a manner not resulting in environmental hazards; and

283.85(1)(e) (e) The integration of facilities for sewage disposal with other facilities designed to dispose of solid waste and thermal pollution, for the purpose of producing revenues in excess of cost in the operation of the integrated facility.

283.85(2) (2) All plans submitted under s. 281.41 after July 22, 1973, for new treatment works, or modifications of treatment works, which will be eligible for construction grants or loans under s. 281.55 or 281.57 or under ss. 281.58 and 281.59, shall contain:

283.85(2)(a) (a) Adequate analysis and data establishing that the works or modification is the most cost efficient method of meeting limitations and standards required of the facility; and

283.85(2)(b) (b) A feasibility plan on using ultimate disposal of pollutants to land rather than to air or the waters of the state.

283.85 History History: 1973 c. 74; 1979 c. 34 s. 2102 (39) (d); 1987 a. 399; 1989 a. 366; 1995 a. 227 s. 879; Stats. 1995 s. 283.85.

283.87 283.87 Liability for water pollution.

283.87(1) (1) Department may recover costs. In an action against any person who violates this chapter or any provision of s. 29.601 or chs. 30, 31, 281, 285 or 289 to 299 relating to water quality the department may recover the cost of removing, terminating or remedying the adverse effects upon the water environment resulting from the unlawful discharge or deposit of pollutants into the waters of the state, including the cost of replacing fish or other wildlife destroyed by the discharge or deposit. All moneys recovered under this section shall be deposited into the environmental fund.

283.87(2) (2) Adverse effects. The department may introduce evidence of the environmental pollution that resulted from the unlawful discharge or deposit and evidence of the potential of the water environment for public use if the unlawful discharge or deposit had not occurred in order to assist the court in determining the adverse effects upon the water environment resulting from the unlawful discharge or deposit and in determining the amount of liability under sub. (1).

283.87(3) (3) Administration of award. The court shall administer an award made under this section. An award made under this section may be used to remove, terminate or remedy the adverse effects of the discharge or deposit, to restore or develop the water environment for public use or to provide grants to municipalities consistent with any court order.

283.87(4) (4) Aids to municipalities; environmental damage compensation. The department may make grants to any county, city, village, or town for the acquisition or development of recreational lands and facilities from moneys appropriated under s. 20.370 (4) (dv). Use and administration of the grant shall be consistent with any court order issued under sub. (3). A county, city, village, or town which receives a grant under this section is not required to share in the cost of a project under this section.

283.87 History History: 1973 c. 74; 1979 c. 221; 1995 a. 27; 1997 a. 248; 1999 a. 150 s. 375; 2005 a. 347; 2017 a. 59.

283.87 Note Note: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

283.89 283.89 Enforcement.

283.89(1) (1) Except as provided in sub. (2m), whenever on the basis of any information available to it the department finds that any person is violating this chapter, any rule adopted thereunder or any term or condition of any permit issued pursuant to this chapter, including general permits issued under s. 283.35, the department shall refer the matter to the department of justice for enforcement under s. 283.91.