AB514: Bill Text

AB514,56,21 30.20 (3) (title) Permits for removal from other waters.

AB514,56,24 (b) If an applicant for a permit under par. (a) submits the application at least 30 days before the proposed date of the removal, the department may issue the permit for a period of up to 10 years.

AB514, s. 200 Section 200. 30.20 (4) of the statutes is created to read:

AB514,57,5 30.20 (4) Action by department. (a) Upon receipt of a complete application for a permit or contract under this section for an activity that involves the removal of 3,000 or more cubic yards of material, the department shall either deny the application as provided in s. 30.246 (1) or shall give notice of receipt of the application as provided in s. 30.244, except as provided in par. (b).

AB514,57,8 (b) The department shall either deny the application as provided in s. 30.246 (1) or shall follow the procedure allowing the department to give notice under s. 30.245 if any of the following applies:

AB514,57,9 1. The activity involves of the removal of less than 3,000 cubic yards of material.

AB514,57,12 2. The activity involves the restoration of the original dimensions of an area legally dredged during the 10 years before the date of application for the permit or contract.

Note: Current s. 30.20 does not contain a requirement for public notice or a hearing under s. 30.02. This bill makes a permit or contract under s. 30.20 subject to the notice and hearing requirements of new ss. 30.244, 30.245, and 30.246 for dredging that involves the removal of more than 3,000 cubic yards, which corresponds with the threshold for a type II action for purposes of environmental review under ch. NR 150, Wis. Adm. Code.

AB514, s. 201 Section 201. 30.202 of the statutes is renumbered 30.333, and 30.333 (3), as renumbered, is amended to read:

AB514,57,21 30.333 (3) Exemption from statutes and rules. Dredge spoil disposal activities authorized under sub. (2) are exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure, or penalty specified under this chapter, s. 29.601, 30.01 to 30.20, 30.21 to 30.99, 59.692, 61.351, 62.231, or 87.30, or chs. 281 to 285 or 289 to 299, except s. 281.48, or specified in any rule promulgated, order issued, or ordinance adopted under those sections or chapters.

AB514, s. 202 Section 202. 30.2025 of the statutes is renumbered 30.278, and 30.278 (5) (d), as renumbered is amended to read:

AB514,58,4 30.278 (5) (d) It may not cause environmental pollution , as defined in s. 299.01 (4).

AB514, s. 203 Section 203. 30.2026 of the statutes is renumbered 30.279, and 30.279 (2) (d) and (3) (a), as renumbered, are amended to read:

AB514,58,9 30.279 (2) (d) The village of Belleville shall create any artificial barrier under this section in compliance with all state laws that relate to navigable bodies of water, except s. 30.12 (1) and (2).

AB514,58,18 (3) (a) The village of Belleville shall maintain any artificial barrier created as authorized under sub. (1). If a landowner of more than 500 feet of Lake Belle View shoreline, a portion of which is located within 1,000 feet of any such artificial barrier, is dissatisfied with the manner in which the village of Belleville is maintaining the barrier, the owner may maintain the barrier in lieu of the village, upon approval of the department. The village or a landowner who maintains the barrier shall comply with all state laws that relate to navigable bodies of water, except s. 30.12 (1) and (2). The department may require the village of Belleville or the landowner to maintain the barrier in a structurally and functionally adequate condition.

AB514, s. 204 Section 204. 30.203 of the statutes is renumbered 30.355, and 30.355 (4) (d), as renumbered, is amended to read:

AB514,58,22 30.355 (4) (d) It may not cause environmental pollution , as defined in s. 299.01 (4).

AB514, s. 205 Section 205. 30.2035 of the statutes is repealed.

Note: The repealed statute requires the DNR to undertake a shoreline protection study. This study has been issued and the DNR is in the process of promulgating rules.

AB514, s. 206 Section 206. 30.2037 of the statutes is renumbered 30.267.

AB514, s. 207 Section 207. 30.204 of the statutes is renumbered 30.373, and 30.373 (5), as renumbered, is amended to read:

AB514,59,11 30.373 (5) Exemption from certain statutes and rules. Activities of the department in conducting the lake acidification experiment are exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure, or penalty specified under this subchapter and subchs. V and VI and s. 29.601 (3), 30.01 to 30.03, 30.06 to 30.16, 30.18 to 30.29, 30.50 to 30.99, 59.692, 61.351, 62.231, 87.30, 287.81, 299.15 to 299.23, 299.91, 299.95, or 299.97 or chs. 281, 283 or 289 to 292 or specified in any rule promulgated, order issued, or ordinance adopted under any of those sections or chapters.

AB514, s. 208 Section 208. 30.205 of the statutes is renumbered 30.335, and 30.335 (title), as renumbered, is amended to read:

AB514,59,15 30.335 (title) Water resources development projects; federal agreements.

AB514, s. 209 Section 209. 30.206 of the statutes is renumbered 30.221, and 30.221 (1) and (7), as renumbered, are amended to read:

AB514,60,2 30.221 (1) For activities or projects which require a permit or approval under ss. 30.12 (3) (a) and 30.19 (1) (1g) (a), the department may issue a general permit authorizing a class of activities, according to rules promulgated by the department. Before issuing general permits, the department shall determine, after an environmental analysis and notice and hearing under ss. 227.17 and 227.18, that the cumulative adverse environmental impact of the class of activity is insignificant and that issuance of the general permit will not injure public rights or interest, cause environmental pollution, as defined in s. 299.01 (4), or result in material injury to the rights of any riparian owner.

AB514,60,6 (7) This section does not apply to an application for a general permit for the Wolf River and Fox River basin area or any area designated under s. 30.207 30.223 (1m) if the application for the general permit may be submitted under s. 30.207 30.223.

AB514, s. 210 Section 210. 30.207 of the statutes is renumbered 30.223, and 30.223 (1), (3) (a) and (c) 6., (4) (c) 1., (5), (6) (a) and (7) (a) and (b), as renumbered, are amended to read:

AB514,60,18 30.223 (1) Geographical area. For purposes of this section and s. 30.12 (3) (bt) 30.276, the Wolf River and Fox River basin area consists of all of Winnebago County; the portion and shoreline of Lake Poygan in Waushara County; the area south of STH 21 and east of STH 49 in Waushara County; that portion of Calumet County in the Lake Winnebago watershed; all of Fond du Lac County north of STH 23; that portion of Outagamie County south and east of USH 41; that portion of Waupaca County that includes the town of Mukwa, city of New London, town of Caledonia, town of Fremont; and the portion and shoreline of Partridge Lake and the Wolf River in the town of Weyauwega.

AB514,60,22 (3) (a) Any local entity, as defined listed in s. 30.77 (3) (dm) (11) (a), any group of 10 riparian owners who will be affected by the issuance of a general permit, or any contractor who is or has been involved in the construction of structures or along navigable waters may apply for a general permit under this section.

AB514,61,2 (c) 6. The names and addresses of at least 5 persons who own real property located adjacent to the navigable waters located in the proposed permit area. If fewer than 5 persons own real property adjacent to such these waters, the application shall include the names and addresses of all of these persons.

AB514,61,5 (4) (c) 1. Any local entity, as defined in s. 30.77 (3) (dm), (11) (a) that has an interest in the quality or use of or that has jurisdiction over the navigable waters located in the proposed permit area.

AB514,61,12 (5) Hearing requirements Notice and hearing. If an activity for which an application for which a general permit has been submitted would be subject to the hearing and notice provisions under s. 30.02 (3) and (4) 30.244 or 30.245 for the issuance of an individual permit, the department shall comply with those provisions. Notice and hearing shall be required on an application for a general permit under this section only if a notice and hearing are required under s. 30.02 (3) and (4) for the activity as part of an application for an individual permit under this chapter.

AB514,61,18 (6) (a) The department shall issue a general permit under this section if the department determines that the cumulative adverse environmental impact of the activity in the proposed permit area is insignificant and that the issuance of the general permit will not injure public rights or interest, cause environmental pollution, as defined in s. 299.01 (4), or result in material injury to the rights of any riparian owners.

AB514,62,2 (7) (a) At least 15 days before beginning the activity that is authorized by a general permit under this section, the person who wishes to conduct the activity shall submit a notice to the department and shall pay the fee specified in s. 30.28 30.243 (2) (b) 2. The notice shall describe the activity, state the name of the person that will be conducting the activity, and state the site where the activity will be conducted. The notice shall also contain a statement signed by the person conducting the activity that the person will act in conformance with the standards contained in the general permit.

AB514,62,10 (b) Upon receipt of a notice that complies with par. (a), the department may inform the person that the activity may not be conducted under the general permit if conditions at the site where the activity would be conducted would cause adverse environmental impact, injure public rights and interests, or cause environmental pollution, as defined in s. 299.01 (4). The department shall respond to the person within 15 days after receiving the notice. Failure of the department to respond within 15 days shall constitute the department's approval of the activity under the general permit.

AB514, s. 211 Section 211. 30.21 of the statutes is renumbered 30.293.

AB514, s. 212 Section 212. 30.213 (title) of the statutes is created to read:

AB514,62,13 30.213 (title) Municipal bridge construction.

AB514, s. 213 Section 213. 30.215 of the statutes is created to read:

AB514,62,20 30.215 Farm drainage ditches. Except a provided in s. 30.20 (1) (c), a project that is for an agricultural purpose and is located in or adjacent to a farm drainage ditch is exempt from the requirement for a permit, contract, or approval under this subchapter unless it is shown, by means of a U.S. geological survey map or other reliable scientific evidence, that the farm drainage ditch was a stream that was a navigable water prior to ditching.

Note: The current statute related to farm drainage ditches is as follows:

"30.10 (4) (c) Notwithstanding any other provision of law, farm drainage ditches are not navigable within the meaning of this section unless it is shown that the ditches were navigable streams before ditching. For purposes of this paragraph, "farm drainage ditch" means any artificial channel which drains water from lands which are used for agricultural purposes."

The proposed language in new s. 30.215 differs in 2 key respects from the current statute. The primary difference is that the exemption clearly applies to a project for an agricultural purpose, not to the farm drainage ditch itself. Thus, a project for other than agricultural purposes would require a permit, even though the drainage ditch was originally constructed as and continues to be used as a farm drainage ditch.

The other difference is that the statute specifies the kind of evidence that may be used to show stream history.

AB514, s. 214 Section 214. 30.24 of the statutes is renumbered 30.357.

AB514, s. 215 Section 215. 30.243 (3) (c) of the statutes is created to read:

AB514,63,3 30.243 (3) (c) This section does not apply to a permit issued under s. 30.221.

AB514, s. 216 Section 216. 30.244 to 30.246 of the statutes are created to read:

AB514,63,9 30.244 Permit procedures; mandatory notice of receipt of application. For the issuance of permits or the entering into of contracts which require notice of the receipt of application by the department, the department shall give written notice of receipt of the application as provided in s. 30.246 (2) unless the department denies the application in s. 30.246 (1).

AB514,63,14 30.245 Permit procedures; optional notice of receipt of application. (1) For the issuance of permit or the entering into of contracts which do not require notice of the receipt of the application by the department, the department shall either deny the application as provided in s. 30.246 (1) or shall approve the application without notice or hearing unless the department decides to act under sub. (2).

AB514,63,18 (2) The department may give written notice of receipt of the application as provided in s. 30.246 (2) if the department determines that a substantial interest of any person may be adversely affected by issuing the permit or entering into the contract.

AB514,63,23 30.246 Permit procedures; denial; notice; mediation; hearing. (1) Denials. The department may deny an application for a permit or contract under this subchapter after receipt of a complete permit or contract application. If the department denies an application, the department shall notify the applicant in writing.

AB514,64,4 (2) Notice requirements. (a) If the department gives notice of receipt of an application under s. 30.244 or 30.245 (2), the notice shall describe the project and the applicable notice, mediation, and hearing procedures under this section. The department shall give notice of receipt to all of the following:

AB514,64,5 1. The applicant.

AB514,64,7 2. Each representative of a local governmental unit required to receive notice under s. 30.04 (3).

AB514,64,8 3. Any person who is required by law to receive notice.

AB514,64,10 (b) The department shall also post the notice on the Internet at a site determined by the department.

AB514,64,16 (c) After notice has been given as required under pars. (a) and (b), the applicant, or any other person authorized by the department, shall publish the notice of receipt of the application as a class 1 notice, under ch. 985, in a newspaper designated by the department that is likely to give notice in the area to be affected by the permit or contract. The applicant shall file proof of publication under this paragraph with the department.

AB514,64,19 (3) Request for hearing. (a) Any person may request in writing a contested case hearing on an application for a permit or contract or for mediation under sub. (5) within 30 days after the notice is published under sub. (2) (c).

AB514,64,23 (b) If a person requesting the contested case hearing under par. (a) or after medication is ended as provided in sub. (5) is not the applicant for the permit or contract, the request shall describe the requester's objection to the permit or contract and shall contain all of the following:

AB514,65,3 1. A description of the legal issues involved that is sufficiently specific to allow the department to determine which provisions of this subchapter may be violated if the permit is issued or the contract is entered into.

AB514,65,6 2. A description of the facts supporting the objection that is sufficiently specific to determine how the objector believes the project, as proposed, may result in a violation of the provisions of this subchapter as described in subd. 1.

AB514,65,9 3. A commitment by the person requesting the contested case hearing under this paragraph to appear at the contested case hearing and present information supporting the requester's objection.

AB514,65,11 (c) The department shall approve or deny the application without a hearing if any of the following applies:

AB514,65,13 1. The request for a contested case hearing does not comply with all of the requirements under pars. (a) and (b).

AB514,65,14 2. The objection contained in the request is not a substantive written objection.

AB514,65,19 (d) The department shall determine that an objection is substantive if the department determines that the supporting facts contained in the objection under par. (b) 2. appear to be substantially true and raise reasonable doubts as to whether provisions of this subchapter may be violated if the permit is issued or the contract is entered into.

AB514,65,25 (e) In making the determination under par. (d), the department may request additional information from the person requesting a contested case hearing, and the person shall submit the requested information within 14 days after receiving the request. If the person fails to submit the requested information within 14 days, the department shall make a determination that the objection is not a substantive objection.

AB514,66,3 (f) If the department denies an application under par. (c) or sub. (1) or (5) (c), the applicant may request in writing a contested case hearing within 30 days after receiving the denial.

AB514,66,8 (4) Referral for hearing. If the request for a contested case hearing complies with sub. (3) (a) and (b), the objection contained in the request is a substantive objection, and no mediation is pending under sub. (5), the department shall authorize the contested case hearing and notify the division of hearings and appeals under s. 227.43 (2) (a).

AB514,66,15 (5) Mediation. (a) At any time after notice has been given under sub. (2) and before the date on which the contested case hearing will begin, the department shall allow for mediation if the department, the applicant for the permit or contract, any person who requests a contested case hearing on the permit or contract,and any person with a substantial interest in the permit or the contract all agree to mediation. The participants shall determine how the mediator is to be selected and compensated.

AB514,66,20 (b) If the mediator determines that an agreement cannot be reached by mediation, the mediator shall certify the mediation as having ended. Within 30 days after the date on which the mediation is certified as having ended, any participant in the mediation may request in writing to the department that the department proceed on the application.

AB514,66,23 (c) If the department does not receive a request under par. (b) within the 30-day period, the department shall either approve the application without a hearing or deny the application.

AB514,67,2 (6) Hearing. (a) Upon receiving notification from the department under this subsection, the division of hearings and appeals shall assign a hearing examiner and shall ensure that the hearing is conducted within 60 days after the notification is received.

AB514,67,5 (b) The division of hearings and appeals shall give notice of the hearing at least 10 days before the hearing to the applicant, to each person who was given notice under sub. (2) (a), and to each person who requested a contested case hearing.

AB514,67,11 (c) The applicant shall publish a class 1 notice, under ch. 985, of the contested case hearing in a newspaper, designated by the department, that is likely to give notice in the area to be affected by the permit or contract. The notice shall be published at least 10 days before the hearing. The applicant shall file proof of publication under this paragraph with the hearing examiner at or before the hearing.

Note: The notice and hearing provisions in current s. 30.02 are repealed and recreated here. The basic structure of this statute remains the same: the notice and hearing procedures apply to any permit or contract in which a notice and hearing is required by direct cross-reference to this section. In any other statute that provides a permit or contract for activities in navigable waters, the DNR may apply the notice and hearing procedures if the substantial interests of any party may be adversely affected by the proceeding. The statute provides a time frame within a contested case hearing may be requested and requires various notices to be mailed or published.

Proposed ss. 30.244, 30.245, and 30.246 have several major additions compared to the current statute. The first difference is that the current statute does expressly provide that the DNR may deny the application for a permit or contract. The current statute requires the DNR either to schedule a hearing or issue notice that it will proceed without a hearing unless a request for hearing is made. As a result, an individual who opposes a permit must request a hearing, even if the DNR expects to deny the application. The new procedure allows the DNR to deny the application for a permit or contract, and the applicant may request a contested case hearing on this decision.

The 2nd difference is that the DNR is directed to post notice of the complete permit or contract application and the opportunity to request a hearing on the Internet. In addition, a provision in the current statute requiring the DNR to provide notice to any person who requests notice of projects of that type, location or other classification is eliminated. Also, notice is required to affected town sanitary districts, public inland lake protection and rehabilitation districts and county drainage boards.

The 3rd difference is that a mediation option is provided. There is no comparable provision in the current statute. The applicant and DNR must agree to be a party to the mediation. The mediation process is primarily expected to address issues of concern to owners of property near the proposed project. If an agreement is not reached in mediation, the parties to the mediation may request a contested case hearing.

The 4th difference is that the requirement of a substantive written objection, which is a condition for obtaining a contested case hearing under the current statute, is clarified and made more detailed. The current statute requires the objector to state why the project may violate statutory provisions applicable to the project. The purpose of this requirement is to avoid contested case hearings when there is not merit to the challenge--i.e., the facts alleged by the objector are not true or do not relate to the legal standards for issuing or denying the permit. The special committee believes that the current statute, as administered by DNR, has not been sufficient to avoid challenges to permits in contested case hearings that are ultimately determined to be without merit. This bill adds to the information that must be submitted by the objector, allows the department to request additional information from the objector, and requires the department to do a thorough evaluation of the grounds for the objection, both legal and factual.

This provision omits the option for the department to schedule a public hearing upon receipt of an application, rather than providing notice of the application. This option is no longer necessary if the department is given authority to deny an application, as provided in this section.

AB514, s. 217 Section 217. 30.25 of the statutes is renumbered 30.269.

AB514, s. 218 Section 218. 30.253 of the statutes is created to read:

AB514,68,6 30.253 Permit or contract conditions. The department may impose additional conditions on a permit or contract under this subchapter if the department determines that the conditions are necessary to ensure compliance with any applicable provision under this subchapter.

AB514, s. 219 Section 219. 30.26 of the statutes is renumbered 30.271.

AB514, s. 220 Section 220. 30.263 (title) and (1) (title) of the statutes are created to read:

AB514,68,10 30.263 (title) Duck Creek Drainage District. (1) (title) Declaration of navigability.