DRAFT #1
6/28/2024
The statement of scope for this rule, SS 048-22 was approved by the Governor on May 26, 2022, published in Register No. 798A1 on June 6, 2022, and approved by the Natural Resources Board on September 28, 2022. This rule was approved by the Governor on ______. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING AND RECREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 323, 326, 328, and 329 repeal and recreate NR 320, relating to placing structures in navigable waterways and affecting small business. |
WW-06-22
Analysis Prepared by the Department of Natural Resources
1-3. Statute Authority, Interpretation, and Explanation:
Chapter 30, Stats., regulates structures placed in navigable waterways, including but not limited to boat houses, boat shelters, bridges and culverts, fish habitat structures, waterfowl habitat structures, wharves, piers, swimming rafts, pierhead lines, marina condominiums, water ski platforms and jumps, shoreline erosion control structures, pilings, intake or outfall structures, dry fire hydrants, fords, pea gravel blankets, and weed rakes. This rule seeks to align administrative code for structures placed in navigable waterways with statutory and programmatic changes and to consolidate these rules to improve administrative efficiency.
Section 30.12 (1p), Stats., grants authority to the department to promulgate rules concerning exempt activities under s. 30.12 (1g), and (1j), Stats. Section 30.123 (6s), Stats., grants authority to the department to promulgate rules concerning exempt activities found in s. 30.123 (6), Stats. Section 30.12 (3), Stats., grants authority to the department to promulgate rules concerning individual permits for solid piers to outlying waters. Section 227.11 (2) (a), Stats., grants authority to the department to promulgate rules to interpret the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute. Structures in navigable waterways are subject to ss. 30.12, 30.123, 30.206, and 30.208, Stats., and additional interpretation through rulemaking is required to effectuate the purpose of the statute. 4. Related Statutes or Rules:
Chapters NR 300, 301, 305, and 310, Wis. Admin. Code, establish administrative procedures, regulatory processes, and enforcement for permitting for structures placed in navigable waterways. Chapter NR 299, Wis. Admin. Code, establishes procedures and criteria for water quality certification. 5. Plain Language Analysis:
The department Waterways Permitting Program (Program) implements laws under ch. 30, Stats., that regulate the placement of structures and crossings in, removal of bed material from, and other activities that may impact navigable waterways. The Program protects riparian rights and public interests in lakes, rivers, and streams, including navigation, fishing and hunting, water quality, recreation, and natural scenic beauty. The purpose of this rule is to update administrative procedures and standards for the Program to align with current statutory requirements in chs. 30 and 227, Stats. Several current statutory exemptions, as well as several statewide general permits issued by the Program are in conflict with the current rule language. This has resulted in confusion and uncertainty for project proponents applying for permits and Program staff. The proposed rule would update exemption standards to be consistent with ch. 30 and current Program practice and remove activity specific general permit standards which are instead written into statewide general permits under ch. 30.206, Stats. The proposed rule would also outline updated public interest review process steps and review factors for individual permits, consistent with ch. 30 and current Program practice. Finally, this effort would consolidate chs. NR 320, 323, 326, 328, and 329 to reduce administrative code redundancy and make Program regulations for structures and crossings in navigable waterways available in one space. These changes would reduce regulatory uncertainty and make all code language for structures and crossings in waterways consistent with current statutes and program practice. NR 320.01 to 320.03 (Purpose, Applicability, and Definitions)
— Specify the rule purpose, applicability, and consistent definitions for use.
NR 320.04 (Exemptions from Permitting)
— Provides general standards that apply to all currently exempt structures and crossings consistent with statutes.
— Incorporates activity specific standards consistent with current program practice.
— Adds new exempt structures, including three fish habitat structures (fish sticks, root wads, boulder placements), seasonally placed structures up to 25 square feet, and temporary crossings for forestry purposes.
— Specifies activity specific standards for culvert replacements that protect against flood flow risk.
— Provides procedures for submitting a voluntary exemption review request.
NR 320.05 (Statewide General Permit Development)
— Removes all activity specific general permit technical standards from the rule language, many of which were in conflict with statutes and/or current program practice.
— Provides categories for eligibility criteria and standards that may be used in the development of statewide general permits.
NR 320.06 (Individual Permits)
— Updates activity specific standards and the general public interest factors to be used in Program evaluation of projects proposed under an individual permit to be consistent with current statutes.
— Clarifies the types of information the Program may evaluate in reviewing the public interest factors under an individual permit review.
— Proposes language that certain proposed structures placed on the Great Lakes or outlying waters may be required to be designed through engineering and/or modeling outlying waters as part of an individual permit application to ensure no detrimental impacts to the public interest.
NR 320.07 to 320.09 (Municipal Breakwater Permits, Navigability Standards for Crossings, Riparian Rights Determinations)
— Language taken from existing rules.
NR 320.10
— Culvert sizing calculator updated to incorporate stream bankfull width and height into the culvert area calculation, which will be a more appropriate procedure for culvert sizing sufficient to pass flood flows.
