Chapter NR 151

subch. V of ch. NR 151 Subchapter V — Technical Standards Development Process for Non-Agricultural Performance Standards

NR 151.30 NR 151.30 Purpose. This subchapter specifies the process for developing and disseminating technical standards to implement the performance standards in subchs. III and IV, as authorized by s. 281.16 (2) (b), Stats., and establishes the procedures that the department shall use to determine if technical standards adequately and effectively implement, as appropriate, the performance standards in subchs. III and IV. This subchapter applies to technical standards developed or implemented by any agency of the state of Wisconsin.

NR 151.30 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.

NR 151.31 NR 151.31 Technical standards development process.

NR 151.31(1) (1) The department shall develop and revise technical standards to implement the performance standards in subchs. III and IV through a process outlined as follows:

NR 151.31(1)(a) (a) The department may decide that a new or revised technical standard is necessary to implement a performance standard.

NR 151.31(1)(b) (b) Any person may request the department to develop or revise a technical standard designed to meet a performance standard. The request shall be made in writing to the director of the department’s bureau of watershed management and shall include the performance standard for which technical standard development or revision may be needed, and an explanation why a new or revised technical standard is requested.

NR 151.31(1)(c) (c) The department shall evaluate a request submitted pursuant to par. (b), to determine if it is necessary to develop or revise a technical standard to implement a performance standard. If the department determines that a new or revised technical standard is not necessary to implement a performance standard, it shall reply to the requester in writing as to the reasons that a technical standard does not need to be developed or revised.

NR 151.31(1)(d) (d) If the department determines that a new or revised technical standard is necessary to implement a performance standard, it shall:

NR 151.31(1)(d)1. 1. Determine the state agency responsible for the technical standard.

NR 151.31(1)(d)2. 2. If the responsible state agency is not the department, request the responsible state agency to develop or revise a technical standard.

NR 151.31(1)(d)3. 3. If the responsible agency denies the request to develop or revise a technical standard, the department may initiate conflict resolution procedures outlined under any existing memorandum of understanding or agreement between the department and the responsible agency. If no conflict resolution procedures exist, the department may attempt to resolve the disagreement through stepped negotiations between increasing higher levels of management.

NR 151.31(1)(e) (e) The department shall use the following procedures when it acts to develop or revise technical standards to implement the performance standards in subchs. III and IV.

NR 151.31(1)(e)1. 1. Convene a work group to develop or revise the technical standard that includes agencies and persons with technical expertise and direct policy interest. The work group shall include at least one representative from the agency or person that made an initial request to develop or revise the technical standard.

NR 151.31(1)(e)2. 2. The work group shall publish a class 1 public notice and consider public comments received on the technical standard prior to providing recommendations to the department under subd. 3.

NR 151.31(1)(e)3. 3. The work group shall provide a recommended technical standard to the department within 18 months of its formation unless the director of the bureau of watershed management grants an extension to this deadline.

NR 151.31(1)(f) (f)

NR 151.31(1)(f)1. 1. Notwithstanding other provisions of this section, and acting jointly with the department of transportation and in consultation with other appropriate stakeholders, the department shall:

NR 151.31(1)(f)1.a. a. Develop a technical standard that, by design, meets the performance standard established in s. NR 151.23 (4) and (4m). This technical standard shall address slope erosion and channel erosion and identify BMPs that may be used given a variety of site conditions.

NR 151.31(1)(f)1.b. b. Annually review this technical standard.

NR 151.31(1)(f)2. 2. For transportation facility construction sites, the technical standard developed under this paragraph shall also indicate any conditions under which it may not be used to implement the performance standard established in s. NR 151.23 (4) and (4m).

NR 151.31(1)(f)3. 3. This technical standard and future revisions become effective upon signatures from both secretaries of the department and the department of transportation, or their designees.

NR 151.31(2) (2) 

NR 151.31(2)(a) (a) Upon receipt of a proposed technical standard or technical standard revision, either developed by the department or a responsible state agency, the department shall determine if the technical standard will effectively achieve or contribute to achievement of the performance standards in subchs. III and IV. The department shall provide its determination in writing to the responsible state agency that prepared the proposed technical standard.

NR 151.31(2)(b) (b) If the department determines that a proposed technical standard will not adequately or effectively implement a performance standard in subchs. III and IV, the proposed technical standard may not be used to implement a performance standard in whole or in part.

NR 151.31(2)(c) (c) If the department determines that a proposed technical standard will adequately and effectively implement a performance standard in subchs. III and IV in whole or in part, the new or revised technical standard shall be used in lieu of any existing standards to implement the performance standard beginning with plans developed after the date of this determination.

NR 151.31(2)(d) (d) The department may determine a portion of a technical standard is adequate and effective to implement the performance standards under subch. III or IV.

NR 151.31(3) (3) The department shall accept technical standards and best management practices developed by the department, the department of safety and professional services, the department of transportation or other appropriate state agencies, existing on October 1, 2002, unless the department identifies a technical standard as not adequate or effective to implement a performance standard in subchs. III and IV in whole or in part, and informs the responsible state agency of this determination and the basis for it.

NR 151.31(4) (4) Until the processes under subs. (1) and (2) are completed, an existing technical standard identified by the department under sub. (3), or previously accepted by the department as adequate and effective to implement a performance standard under subch. III or IV shall be recognized as appropriate for use under this chapter.

NR 151.31(5) (5) The department may identify technical standards that exist or are developed by qualified groups or organizations as adequate and effective to implement the performance standards under subch. III or IV.

NR 151.31(6) (6) Except as provided in s. NR 151.26, if a technical standard that the department determines is not adequate or effective to implement a performance standard in whole or in part is used to implement a performance standard under subch. III or IV, the department may initiate enforcement proceedings for failure to meet the performance standard under s. 281.98, Stats.

NR 151.31 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (1) (intro.), 1. a., 2. Register December 2010 No. 660, eff. 1-1-11; correction in (3) made under s. 13.93 (4) (b) 6., Stats., Register February 2012 No. 674.

NR 151.32 NR 151.32 Dissemination of technical standards.

NR 151.32(1) (1) Technical standards developed or revised under this section may be made available through the responsible state agency’s appropriate rules, manuals or guidance in keeping with normal publication schedules. If the responsible state agency does not publish appropriate manuals or guidance, the department shall request the agency provide the department with a copy of the technical standard. Where provided, the department shall publish or reproduce the technical standard for public use.

NR 151.32(2) (2) The department shall maintain a list of technical standards that it has determined adequate and effective to implement the performance standards under subch. III or IV and make the list available upon request.

NR 151.32 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.