ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 150.03 (11), NR 150.10 (1m) (b), and 150.20 (3) (a) 4. and 5.; to renumber NR 150.20 (2) (a) 5.; to renumber and amend NR 150.20 (2) (a) 18. and 19.; to amend 150.03 (1), (15) (intro.), (19), (25) and (26), 150.10 (1) and (1m) (a), (c) (intro.) and (2) (a), 150.20 (1), (1m) (a), (b), (d), (j), and (k), (2) (a) (intro.), 4., 7., 8., 10., 11., 12., 13., 14., 16., (2) (b), (3) (a) (intro.), 1., 6., 7., and 8., and (4) (b) (intro.), 150.30 (1) (g), (2) (b), (3) (c) 3., and (d), and 150.35; and to create NR 150.02 (Note), 150.03 (5m), (12m), (16m), (17m) and (Note), and (23m), 150.20 (1m) (ge), (gm), (gs), (jg), (jr), (m), (n), (nm), (o), (p), (pe), (pm), (ps), (q), (qm), (r), (s), (sb), (sf), (sk), (sp), (ss), (sw), (sy), (t), (u) and (Note), (ug), (ur), (v), and (w), (2) (a) 2r., 3c., 3g., 3n., 7e., 7m., 7s., 18m., 19m., 20., 21., 22., and (3) (a) 9. and 10., and 150.30 (3) (d) (Note) relating to the department's environmental analysis and review procedures under the Wisconsin Environmental Policy Act.
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Analysis Prepared by the Department of Natural Resources
1. Statute interpreted: Section 1.11, Stats. 2. Statutory authority: Sections 1.11 and 227.11, Stats. 3. Explanation of agency authority: The department has general authority to promulgate rules
under s. 227.11 (2)(a), Stats., that interprets the specific statutory authority granted in s. 1.11, Stats. 4. Related statute or rule: Wisconsin Environmental Policy Act (WEPA) compliance is a requirement for all state agencies and department programs. As a result, many statutes and codes are WEPA and ch. NR 150-related. Statute chapters: chs. 16, 23, 30, 33, 160, 196, 227, 285, 289, 291, 292 and 293, Stats. Administrative Code chapters: chs. NR: 1, 2, 19, 44, 48, 52, 60, 103, 107, 108, 110, 113, 126, 128, 131, 132, 133, 134, 162, 166, 182, 191, 200, 243, 299, 300, 305, 310, 327, 345, 347, 406, 410, 489, 512, 670, 700-754, 820, and 852. 5. Plain language analysis:
Chapter NR 150 was revised and went into effect April 1, 2014. An emergency rule was approved by the Natural Resources Board in August 2014 and expired May 27, 2015. A revised scope statement was approved by the Governor on December 11, 2014 and approved by the Natural Resources Board on February 25, 2015. A second emergency rule consistent with the new scope statement was approved Natural Resources Board in May 2015. Public comments on the proposed permanent rule occurred in May and June, with a public hearing held in Madison on June 2. The purpose of the proposed permanent rule is to clarify the procedures for the review and analysis of new administrative rules in order to assure that the intent of the ch. NR 150 revision is being met and potential procedural questions do not invalidate the years of work and public engagement on new rules packages, and for additional housekeeping changes to ensure that the intent of the recent ch. NR 150 rewrite is being met all in a manner that is consistent with past WEPA compliance approaches that have been upheld by the courts. The proposed rule clarifies that emergency rules are “minor actions”, requiring no environmental analysis, and that the process for developing permanent rules is an “integrated analysis action,” requiring no separate environmental analysis process. The April 2014 revision of the rule was not perfectly clear to this point.
Procedures for WEPA compliance determinations and publication requirements have been clarified.
This proposed permanent rule includes clarification changes regarding strategic analysis requirements. Consistent with the intent of the current rule, the rule clarifies that a strategic analysis is required for review of significant policies, but for other policies or issues the strategic analysis may be used as a discretionary tool.
The list of minor actions, not requiring environmental analysis, has been expanded to include actions that originally were intended to be outlined in program guidance. The April 2014 version relied on reference to “routine and small-scale” permits or approvals as a catch-all category for minor actions that would be listed in guidance and reviewed by the public through the guidance review process. The revision in this proposed permanent rule clarifies by rule the list of activities that are minor actions.
The terminology of “equivalent analysis actions,” for which a detailed environmental analysis and public disclosure are already conducted as part of department programmatic procedures, has been changed to “integrated analysis actions” and the definition has been clarified to explain that no separate environmental analysis process is required. The list for this category has been expanded and amended to provide additional clarity on actions covered under this subsection.
The list of prior compliance actions, for which one or more environmental analysis documents exist for similar prior actions, has been expanded to provide additional clarity on actions covered under this subsection.
6. Summary of, and comparison with, existing or proposed federal statutes and regulations:
The 1970 Wisconsin Environmental Policy Act (WEPA) and s. 1.11, Stats., were modeled after the federal National Environmental Policy Act (NEPA) of 1969. NEPA created the Council on Environmental
Quality (CEQ), which established guidelines and regulations to implement the Act. As with other state
agencies' WEPA rules, ch. NR 150 and these clarifying provisions are based in part upon the federal CEQ guidelines. This proposed revision of ch. NR 150 will remain substantially consistent with the CEQ guidelines as required under s. 1.11 (2)(c), Stats. 7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota):
Neighboring states have significant differences in their related laws, so the opportunity to gain from their experience is limited. For example, Minnesota requires that counties also follow WEPA-like analysis procedures, whereas Wisconsin counties have no such requirements. Illinois' law covers only actions conducted by the state itself, whereas in Wisconsin, WEPA applies to all actions by other entities that are subject to state approvals.
8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: Department of Natural Resources staff obtained the input of an internal team of staff from several department programs, building on the prior review of relevant WEPA case law and federal CEQ regulations.
9. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact report: Chapter NR 150 is an administrative process rule that applies internally to the department, so impacts to businesses are minimal. 10. Effect on small business (initial regulatory flexibility analysis):
There will be no impact to small business as a result of this rule revision. This proposed permanent rule will benefit small businesses to the extent that they clarify any ambiguity of the intent of the rule, as presented to the public and approved by the NRB.
11. Agency contact person:
