Chapter DOC 335

DOC 335.09 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.10 DOC 335.10 Conversion of DEIS to FEIS. After weighing the testimony received at the public hearing on the DEIS, and undertaking whatever further investigation in response to that testimony seems necessary, the department may convert a DEIS to an FEIS. This 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.

DOC 335.10 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.11 DOC 335.11 Review of the FEIS.

DOC 335.11(1) (1) Distribution. The FEIS shall be distributed in the same manner as the DEIS in s. DOC 335.09 (1), and shall also be distributed to any person, organization or agency that submitted comments on the DEIS.

DOC 335.11(2) (2) Notice of availability. The availability of the FEIS shall be announced through a notice similar to the notice of availability of the DEIS in s. DOC 335.09 (2). That notice shall state whether the department will hold a public hearing on the FEIS, as permitted under sub. (3) (b). The department shall provide a copy of the FEIS to any individual or group requesting a copy.

DOC 335.11(3) (3) Period for comment.

DOC 335.11(3)(a) (a) The department shall allow a minimum of 45 days from the date the notice of availability of the FEIS is published, including a minimum of 7 days following a hearing held under par. (b), for receipt of written comments on the FEIS from state and federal agencies and the public.

DOC 335.11(3)(b) (b) The department may hold a public hearing on the FEIS. That hearing shall be announced through the notice of availability of the FEIS which shall be published 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.

DOC 335.11(4) (4) Contested case hearing opportunity.

DOC 335.11(4)(a) (a) Request for a hearing. Any person meeting the qualifications contained in s. 227.42 (1) (a) to (d), Stats., may within 20 days after publication of the notice of availability under sub. (2), or within 20 days after the public hearing under sub. (3) (b), if there is one, file with the department a request for a contested case hearing. The request shall include facts sufficient to establish that the person satisfies the criteria set forth in s. 227.42 (1) (a) to (d), Stats., and a statement of the reasons the person believes that the FEIS does not conform to the requirements of this chapter or s. 1.11, Stats. Any request received by the department more than 20 days after the date of publication of the notice of availability or more than 20 days after a public hearing under sub. (3) (b) shall be denied.

DOC 335.11(4)(b) (b) Hearing.

DOC 335.11(4)(b)1. 1. In the event that the department grants a request for a contested case hearing, the department shall inform the person making the request about the date, time and place of the hearing.

DOC 335.11(4)(b)2. 2. In the event that more than one request for a hearing on the FEIS is granted, the department may consolidate the requests and hold one hearing.

DOC 335.11(4)(b)3. 3. 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.

DOC 335.11(4)(b)4. 4. The hearing shall be held in accordance with the department’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.

DOC 335.11(4)(c) (c) Evidence, discovery, and disclosure.

DOC 335.11(4)(c)1. 1. The FEIS shall be received into the hearing record as an exception to the hearsay rule and shall be considered by the department in making its decision for whatever probative value the FEIS has.

DOC 335.11(4)(c)2. 2. Notwithstanding any other rule of the department, the parties in proceedings under this action 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.

DOC 335.11(4)(c)3. 3. Not less than 10 days before the hearing the parties shall file with the department:

DOC 335.11(4)(c)3.a. a. The names and addresses of all witnesses, including adverse witnesses, that the party may call to testify at the hearing.

DOC 335.11(4)(c)3.b. b. A detailed written summary of the testimony to be elicited from each witness identified in subpar. a., including any opinion 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 on oath or affirmation.

DOC 335.11(4)(c)3.c. c. 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.

DOC 335.11(4)(c)4. 4.

DOC 335.11(4)(c)4.a. a. Any witness whose name, address and summary of testimony is not provided as required in subd. 3. a. and b. shall not be permitted to testify at the hearing. No witness may testify on any matter not included in the summary of testimony.

DOC 335.11(4)(c)4.b. b. No document or other writing or a copy or detailed description of any demonstrative evidence not filed as provided in subd. 3. c. may be made part of the record.

DOC 335.11(4)(c)5. 5. Unless objected to by the department, 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 department 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 department 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 department for whatever probative value that testimony has in making its decision.

DOC 335.11 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.12 DOC 335.12 Decision.

DOC 335.12(1) (1) Review of comments. After expiration of the comment period on the FEIS and following any contested case hearing on the adequacy of the FEIS, the department shall carefully review, summarize and weigh the comments received on the FEIS and on the proposed action and the decision following any contested case hearing before making a decision on the action.

DOC 335.12(2) (2) Record of decision. After carefully reviewing the comments of interested parties on the FEIS, the department shall enter a final decision in writing on the proposed action, which shall be a clear, concise and public statement which discloses and explains the decision, identifies the alternatives considered in reaching it and the alternative or alternatives considered environmentally preferable, and states whether all practicable means to avoid or minimize environmental harm have been adopted and, if not, why not.

DOC 335.12 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.13 DOC 335.13 Supplements. If it happens that after an FEIS has been prepared, the public comment period has ended, and a decision has been made on the proposed action, but before contracts have been signed or construction has begun, whichever happens first, or other implementation has begun, the department substantially changes the proposed action in environmentally significant ways, or if significant new circumstances arise or information is developed relevant to environmental concerns and having a bearing on the proposed action or its impacts, the department shall prepare a supplement to the FEIS which shall be distributed and reviewed in the same manner as the FEIS as provided in s. DOC 335.11.

DOC 335.13 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.14 DOC 335.14 Equivalent processes.

DOC 335.14(1) (1) Where another state agency has concurrent responsibility with the department for a proposed type II action, a joint environmental assessment may be prepared with the other agency, or the environmental assessment prepared by the other agency may be accepted by the department provided that the assessment meets the requirements of this chapter, in which case the department’s responsibility under WEPA has been met.

DOC 335.14(2) (2) Where a proposed action is found to require an EIS and another state agency is involved in the approval or decision, a joint EIS may be prepared with the other agency, or the EIS prepared by the other agency may be accepted by the department provided that the EIS meets the standards for an adequate statement under this chapter, in which case the department’s responsibility under WEPA has been met.

DOC 335.14 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.

DOC 335.15 DOC 335.15 Responsibilities.

DOC 335.15(1) (1) Single department office.

DOC 335.15(1)(a) (a) The department shall have one office in Madison that other agencies and the public may contact to find out about department procedures implementing WEPA and progress being made in preparation of particular WEPA documents, and to obtain copies of environmental impact statements, environmental assessment reports, the department’s action typelist, the department’s administrative rules for WEPA implementation, and the final written decision of the department on particular proposed actions for which an environmental impact statement was prepared.

DOC 335.15(1)(b) (b) The single office of the department for WEPA-related matters shall also:

DOC 335.15(1)(b)1. 1. Maintain this chapter of administrative rules.

DOC 335.15(1)(b)2. 2. Arrange for department review and comment, if appropriate, on the environmental impact statements of other agencies.

DOC 335.15(1)(b)3. 3. Suggest and approve formats and forms for divisions to use in carrying out their responsibilities under sub. (2).

DOC 335.15(1)(b)4. 4. Train, keep updated, and advise appropriate division staff, including managers, about WEPA requirements and department procedures for implementation of WEPA.

DOC 335.15(1)(b)5. 5. At the request of the department secretary, review for adequacy or coordinate review for adequacy of any division-proposed environmental assessment report or environmental impact statement.

DOC 335.15(1)(b)6. 6. Ensure that copies of this chapter are maintained for public review at the department’s central office.

DOC 335.15(2) (2) Department. The department shall:

DOC 335.15(2)(a) (a) Decide what are actions for purposes of this chapter;

DOC 335.15(2)(b) (b) Determine type of action, under s. DOC 335.05;

DOC 335.15(2)(c) (c) Conduct environmental assessments, and prepare and distribute environmental assessment reports;

DOC 335.15(2)(d) (d) Recommend preparation of environmental impact statements;

DOC 335.15(2)(e) (e) Prepare or arrange for preparation of environmental impact statements; and

DOC 335.15(2)(f) (f) Give notice and conduct informational hearings on draft and final environmental impact statements.

DOC 335.15 History History: Cr. Register, March, 1992, No. 435, eff. 4-1-92.