Chapter DHS 18

DHS 18.01 DHS 18.01 Authority. This chapter is promulgated under the authority of ss. 1.11 and 227.11 (2), Stats., to implement the Wisconsin environmental policy act, s. 1.11, Stats., insofar as proposed major actions of the department may significantly affect the quality of the environment of human beings. The chapter provides for a process of agency decisionmaking in public which depends on, although it is not necessarily determined by, thorough, objective analysis of the effects of a proposed action on the environment and of alternatives to such an action.

DHS 18.01 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.02 DHS 18.02 Applicability. The criteria, procedures, and other parts of this chapter apply to all staff of the department and to all proposed actions of the department which may significantly affect the quality of the environment of human beings.

DHS 18.02 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.03 DHS 18.03 Purpose. These rules are to:

DHS 18.03(1) (1) Provide principles, objectives, definitions, criteria, and procedures to be used by the department to implement s. 1.11, Stats. Implementation includes identification and evaluation of proposed actions; study, development, and description of alternatives for those proposed actions that involve unresolved conflicts in the use of available resources; and preparation and review of environmental assessments and environmental impact statements;

DHS 18.03(2) (2) Ensure that high-quality environmental information, deriving from sound analysis of the likely consequences for the environment of major actions and from the development of alternatives, is available to department managers and citizens before decisions are made;

DHS 18.03(3) (3) Ensure that department staff who make decisions or contribute to decisions understand and consider potential environmental consequences of proposed actions and attempt to minimize the adverse consequences of these actions; and

DHS 18.03(4) (4) Facilitate public scrutiny and understanding of proposed actions of the department that may significantly affect the quality of the human environment.

DHS 18.03 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.04 DHS 18.04 Definitions. As used in this chapter:

DHS 18.04(1) (1) “Action” means any activity initiated or otherwise undertaken by the department, including a proposal for legislation, which may affect the quality of the environment of human beings.

DHS 18.04(2) (2) “Alternatives” means actions other than the proposed action which may be reasonably available to achieve the same or altered purpose of the proposed action, including the alternative of no action.

DHS 18.04(3) (3) “DEIS” means draft environmental impact statement.

DHS 18.04(4) (4) “Department” means the department of health services.

DHS 18.04(5) (5) “Environmental assessment” or “EA” means a concise public document prepared by or at the direction of the department which provides sufficient evidence and analysis concerning a proposed type II action to enable the department to determine whether to prepare an environmental impact statement or issue a finding of no significant impact, and it includes the study, development and description of alternatives.

DHS 18.04(6) (6) “Environmental impact statement” or “EIS” means a detailed, written analytical report prepared by or at the direction of the department, which describes the anticipated effects on the environment of a proposed major action. An “EIS” is meant to adequately inform department decisionmakers and the public about the environmental consequences of an action in a way that will assist and guide decisionmaking.

DHS 18.04(7) (7) “FEIS” means final environmental impact statement.

DHS 18.04(8) (8) “Finding of no significant impact” means a conclusion of an environmental assessment that the proposed action is not a major action which will significantly affect the quality of the human environment and that preparation of an EIS is therefore not required.

DHS 18.04(9) (9) “Human environment” or “environment of human beings” means the natural and physical surroundings of people and their relationship with those surroundings. It includes the economic and social aspects of the surroundings of people only when these are inter-related with the natural and physical aspects of those surroundings.

DHS 18.04(10) (10) “Major action” means an action significantly affecting the quality of the human environment. Actions are called “major” when they significantly affect the environment of human beings.“Major” reinforces but does not have a meaning independent of“significantly.”

DHS 18.04(11) (11) “Program” means a broad area of the department’s responsibility, namely, health, adult corrections, juvenile corrections, mental disabilities, social services, economic assistance, or vocational rehabilitation.

DHS 18.04(12) (12) “Resource” means water, air, land, plants, animals, energy, historic properties, vistas, wilderness, or that tranquillity which is affected by noise.

DHS 18.04(13) (13) “Scoping” means a process conducted at the outset of preparation of an EIS which involves asking for the views of other governmental agencies and the interested public about what should be in the EIS, the issues it should address, and the relatively more significant issues that should be subjected to in-depth analysis.

DHS 18.04(14) (14) “Secretary” means the secretary of the Wisconsin department of health services.

DHS 18.04(15) (15) “Significantly affecting” means, in reference to actions, having considerable and important impacts on the quality of the environment, either in terms of the breadth of impact or the severity of impact.

DHS 18.04(16) (16) “WEPA” means the Wisconsin environmental policy act, s. 1.11, Stats.

DHS 18.04 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83; corrections in (3) and (14) made under s. 13.92 (4) (b) 6., Stats., Register November 2008 No. 635.

DHS 18.05 DHS 18.05 Types of actions. The department has grouped its actions into 3 types to facilitate its determination of need for an EIS.

DHS 18.05(1) (1) Type I actions. A type I action will always require an EIS. Construction of a new residential institution of 65 or more beds at a location where there was not previously a department-operated institution is a type I action.

DHS 18.05(2) (2) Type II actions. A type II action may or may not require an EIS, depending on the significance of the action. All of these actions shall be evaluated by means of an environmental assessment (EA). In the EA, the department shall study, develop and describe appropriate alternatives to the proposed action.

DHS 18.05(2)(a) (a) Facilities development.

DHS 18.05(2)(a)1. 1. Construction of a new residential institution of fewer than 65 beds at a location where there was not previously a department-operated institution.

DHS 18.05(2)(a)2. 2. Construction at an existing department-operated institution of a new or replacement building or other structure or the addition to or change in the exterior physical design of a building or other structure, the cost of which is the same as or more than the limit where approval of the building commission is required pursuant to s. 13.48 (10), Stats.

DHS 18.05(2)(a)3. 3. Acquisition or modification of an existing building to serve as a community residential facility for clients.

DHS 18.05(2)(a)4. 4. Modification of a building at an existing department-operated institution to serve a different program and population.

DHS 18.05(2)(a)5. 5. Changes in land use at institutions operated by the department to include but not be limited to construction of athletic fields, roads, parking facilities, bridges, and walls or fences.

DHS 18.05(2)(a)6. 6. Construction of a planned lake or pond development or renewal of an existing pond development.

DHS 18.05(2)(a)7. 7. Development of new sanitary land fill and solid waste disposal sites, and closing of existing sites.

DHS 18.05(2)(a)8. 8. Sale of an institution.

DHS 18.05(2)(b) (b) Facilities operation.

DHS 18.05(2)(b)1. 1. New construction, enlargement, or other significant modification in electrical, television, communications, heating, gas, or sewer facilities and systems at an institution.

DHS 18.05(2)(b)2. 2. Demolition projects to remove structures of 100,000 or more cubic feet.

DHS 18.05(2)(b)3. 3. Grant of easements across department property for roads and for above-ground construction of utilities including pipelines and transmission lines.

DHS 18.05(2)(b)4. 4. Changed policies on farming and camp operation on department properties.

DHS 18.05(2)(c) (c) Financial assistance. Establishment of criteria for the award of secondary grants and for allocation of local aids, where employment of the grants or aids will have material impacts on the human environment and the department has substantial discretion in formulating important provisions of the criteria.

DHS 18.05(2)(d) (d) Administrative rules. Promulgation of non-emergency administrative rules when implementation will have material impacts on the human environment and the department has substantial discretion in formulating important provisions of the rules.

DHS 18.05(2)(e) (e) Plans. Approval of federal-state plans, that is, state plans prepared as a requirement for federal financial participation in programs administered by the department, when implementation will have material impacts on the human environment and the department has substantial discretion in formulating important provisions of the plans.

DHS 18.05(2)(f) (f) Legislative proposals. Proposals of the department for state legislation to authorize new programs or major changes in existing programs, the implementation of which would have material effects on the human environment.

DHS 18.05(3) (3) Type III actions. A type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources, and therefore, unless the department determines otherwise, an EA or an EIS will not be required for the proposed action.

DHS 18.05(3)(a) (a) Facilities development.

DHS 18.05(3)(a)1. 1. Remodelling entirely within a building at an institution for use by the same program.

DHS 18.05(3)(a)2. 2. Institution improvement projects, to include energy conservation and barrier-free access improvements and improvements to outdoor lighting, walkways, signs, shelters, tree plantings, and landscaping.

DHS 18.05(3)(a)3. 3. Restoration of a facility to its original condition following damage from fire, accident, disturbance, or natural calamity.

DHS 18.05(3)(a)4. 4. Closing of an institution or of part of an institution.

DHS 18.05(3)(a)5. 5. Sale of excess lands.

DHS 18.05(3)(b) (b) Facilities operation.

DHS 18.05(3)(b)1. 1. Grant of easements across department property for the purpose of below-ground construction of utilities, including pipelines and transmission lines.

DHS 18.05(3)(b)2. 2. Maintenance of buildings, including but not limited to replacement of doors, windows and roofs, and painting, without altering the architectural integrity of the buildings.

DHS 18.05(3)(b)3. 3. Maintenance of roads, sidewalks, curbs, and gutters at institutions.

DHS 18.05(3)(b)4. 4. Road and parking lot resurfacing on department properties, and expansion without significant extension or relocation.

DHS 18.05(3)(c) (c) Financial assistance. Forwarding of secondary grants.

DHS 18.05(3)(d) (d) Legislative proposals. Positions of the department on legislative proposals originating outside the department.

DHS 18.05(3)(e) (e) Research. Conduct of research understood to mean systematic investigation designed to develop or contribute to generalizable knowledge.

DHS 18.05(4) (4) Other actions. Every action not fitting into one of the categories in subs. (1) to (3) shall be evaluated for determination of type.

DHS 18.05(5) (5) Updating of type-list. The action type-list shall be updated from time to time by rulemaking to reflect change in department programs or change in the categorization of department actions.

DHS 18.05 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83.

DHS 18.06 DHS 18.06 Determination of need for an EIS.

DHS 18.06(1) (1) During the early planning of an action, the department shall determine the need or desirability of preparing an EIS on the proposed action, in accordance with ss. DHS 18.05 and 18.07.

DHS 18.06(2) (2) The department shall prepare an EIS for all type I actions, and for all type II actions which are found to significantly affect the environment of human beings.

DHS 18.06(3) (3) The department may prepare an EIS on any other action at any time to assist planning and decisionmaking for the action.

DHS 18.06(4) (4) If the department decides to prepare an EIS, it does not need to prepare an EA.

DHS 18.06 History History: Cr. Register, June, 1983, No. 330, eff. 7-1-83; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, August, 1994, No. 464.

DHS 18.07 DHS 18.07 Preparation of environmental assessment.

DHS 18.07(1) (1) Except as provided in s. DHS 18.06 (4), to determine whether a type II action is major and significantly affects the quality of the natural and physical environment of human beings, and to describe alternatives to that action, the department shall conduct an environmental assessment and shall prepare a reviewable record in the form of a concise report. This shall be done as early as possible in the planning process but, in any event, before contracts are signed if the action involves construction. The report shall include:

DHS 18.07(1)(a) (a) A description of the proposed action, to include the purpose of the action and need for the action;

DHS 18.07(1)(b) (b) A description of those elements of the environment of human beings which are affected by the proposed action;

DHS 18.07(1)(c) (c) Identification and discussion of the most significant effects on the environment that can be reasonably foreseen if the proposed action is carried out. “Effects” are of 2 types:

DHS 18.07(1)(c)1. 1. Primary effects are those on water, air, land, plants, animals, energy use, historic properties, wilderness, vistas, and tranquillity which is affected by noise, and on society and economy but only when these are inter-related with the foregoing resources.

DHS 18.07(1)(c)2. 2. Secondary effects are, in relation to primary effects, the foreclosure of future options, establishment of precedents, cumulative impacts when actions of the type are repeated, stimulation of indirect (later in time or at a distance) effects, conflicts with official plans of public agencies or with policies of governments at any level, and significant controversy that may be or is generated by the proposed action.

DHS 18.07(1)(d) (d) A consideration of reasonable alternatives to the proposed action, including the alternative of no action, and the identification of the significant environmental effects of these alternatives when they differ from the anticipated impacts of the proposed action; and

DHS 18.07(1)(e) (e) A list of agencies and persons consulted, with synopses of the comments and other pertinent information provided by these agencies and persons.

DHS 18.07(1)(f) (f) A preliminary recommendation on the need for an EIS.

DHS 18.07(2) (2) Where proposed actions are likely to be repeated on a recurring basis or where they have relevant similarities such as common timing, impacts, alternatives, methods of implementation, or subject matter, a generic EA may be prepared. The department shall, when addressing a single action already covered by a generic EA, consider the relevance of the generic EA to the specific action.

DHS 18.07(3) (3) 

DHS 18.07(3)(a) (a) The department shall develop a notice that the EA has been prepared and is available for review, which shall include the following information:

DHS 18.07(3)(a)1. 1. The title of the proposed action;

DHS 18.07(3)(a)2. 2. A brief description of the proposed action, to include the location of any project;

DHS 18.07(3)(a)3. 3. The preliminary determination by the department of the need for an EIS;