Permitting changes in general
With limited exemptions, under current law, an owner of waterfront property
(riparian owner) may not engage in a waterway activity unless the riparian owner
has first obtained a permit or contract from DNR that is specific to the waterway
activity (an individual approval) or unless the waterway activity is authorized under
a general permit issued by DNR.
This bill restructures the substantive requirements for individual permits,
general permits, and contracts for removing material from navigable waterways. It
also creates exemptions from both of these types of permits and from these contracts
for certain waterway activities. The types of permits that are affected by these new
general and individual permitting, contracting, and exemption provisions are
permits to place structures or deposit material (placement permits), permits to
construct or maintain bridges (bridge permits), permits to enlarge or connect
waterways or to grade or remove top soil from banks along navigable rivers and
streams (enlargement permits), permits to change the courses of streams and rivers
(stream course permits), and permits and contracts to remove material from beds of
navigable waterways (removal approvals).
General permits
Under current law, DNR may, but is not required to, issue general permits for
waterway activities that are covered by the abbreviated procedure described above
and for certain activities that require an enlargement permit. Under current law,
general permits may be issued in certain designated areas of the state for any
waterway activity that requires a general permit. The bill expands the use of general
permits by requiring DNR to issue statewide general permits for certain waterway
activities and to allow DNR to promulgate rules to specify additional waterway
activities that may be authorized under a general permit. The bill allows DNR to
impose certain construction and design requirements, location requirements, and
environmental restrictions on the general permits. Under current law, a person
seeking to conduct a waterway activity under a general permit must notify DNR not
less than 20 days before starting the activity. The bill requires this notification to
be in writing and and increases the 20 days to 30 days. If DNR does not act within
30 days of the notification, the waterway activity is considered to be authorized.
Placement permits
For placement permits, current law provides an abbreviated procedure for
reviewing applications. Under the procedure, DNR may approve or disapprove the
permit application without giving notice or conducing a hearing. Types of permit
applications to which this abbreviated procedure applies include applications to
place sand to improve recreational use and applications to place devices to improve
fish habitat.
This bill repeals this abbreviated review procedure. Instead, under the bill the
general permitting process applies to most of the waterway activities that are subject
to the abbreviated procedure.
The bill also exempts certain waterway activities from both general and
individual placement permits if they do not interfere with the rights of other riparian
owners and if they are located outside an area of special natural resource interest
(exempt waterway activities). Under current law, some of these activities are subject
to the abbreviated procedure and some must meet notice and hearing requirements
before being issued. The bill defines an area of "special natural resource interest"
to be a state natural area or an area identified by DNR as possessing scientific value
or as being an outstanding or exceptional resource water. Examples of such waters
include wild and scenic rivers and certain trout streams. If a waterway activity is
not an exempt waterway activity, the individual permitting process applies unless
the waterway activity is covered by a general permit.
Whether a waterway activity is subject to the individual placement permit
process or the general placement permit process or is totally exempt from any type
of placement permit depends on the placement or deposit meeting certain size and
other criteria. Structures and deposits that are subject to these placement permit
provisions include deposits of sand, crushed rock, gravel, or riprap; boat shelters and
hoists; intake and outlet structures; piers; and wharves. Under current law, a
riparian owner may construct a pier or wharf beyond the ordinary high-water mark
or an established bulkhead line without a placement permit if the wharf or pier
meets certain criteria. This bill eliminates this exemption.
Under current law, DNR may, but is not required to, issue placement permits
for waterway activities that meet the requirements for the permit. Under the bill,
DNR must issue placement permits for activities that meet these requirements.
Enlargement permits
Under current law, a person must be issued an enlargement permit to do any
of the following:
1. Construct, dredge, or enlarge any artificial waterway in order to connect it
with an existing navigable waterway (connection permit requirement). The bill
limits this permit requirement to those artificial waterways that are already
connected to the navigable waterway or that will connect with the navigable
waterway upon completion of the construction.
2. Connect an artificial or natural waterway, whether or not navigable, with
an existing navigable waterway. The bill repeals this provision.
3. Construct, dredge, or enlarge any part of an artificial waterway that is
located within 500 feet of an existing navigable stream (500-foot permit
requirement).
4. Grade or remove top soil from the bank of a navigable waterway if the
exposed area will exceed 10,000 square feet (grading permit requirement).
The bill creates an exemption from the 500-foot permit requirement, if the
artificial waterway's only surface connection to a navigable waterway is an overflow
device and the construction, dredging, or enlargement is authorized by a storm water
discharge permit or a water sewerage and facility plan authorized by DNR (storm
water-sewerage projects).
The bill creates an exemption from the grading permit requirement if the
grading or removal of top soil is not located in an area of special natural resource
interest and is authorized by a storm water discharge permit, by a shoreland or
wetland zoning ordinance, or by a construction site erosion control plan.
The bill requires DNR to issue a general permit to meet the connection permit
requirement and the 500-foot permit requirement for construction, dredging, and
enlargements that are part of an approved storm water-sewerage project, but that
are not covered by the exemption described above. The bill requires DNR to issue
a general permit to meet the connection permit requirement and the 500-foot
requirement for construction, dredging, and enlargements that are designed to
enhance wildlife habitat or wetlands or that affect a body of water less than one acre
in size. The bill requires DNR to issue a general permit to meet the grading permit
requirement for any grading or removing of top soil that is not covered by the
exemption described above.
As to individual enlargement permits, the bill imposes the additional
requirement that the activity not be detrimental to the public interest.
Bridge permits
The bill makes the following changes to current permitting procedures for the
construction and maintenance of bridges:
1. Allows bridge construction and maintenance to be authorized by the
legislature.
2. Subjects bridges that cross navigable streams that are less than 35 feet wide
to the general permitting provisions. Under current law, such bridges are exempt
from the bridge permitting requirements.
3. Changes the permitting provisions to specifically cover the placement of
culverts.
4. Subjects culverts that have diameters of less than 60 inches to the general
permitting provisions.
5. Exempts culverts that have a diameter of less than 48 inches and that are
part of private roads or driveways from all of the bridge permitting requirements.
6. Repeals the requirement that the holder of a bridge permit construct and
maintain a bridge that is used by the public to be in a safe condition.
Stream course permits
Under current law, a person must be issued a stream course permit to change
or straighten the course of a stream or river. The bill requires DNR to issue a general
permit under which riparian owners may change or straighten the course of streams
or rivers if the change or straightening involves a relocation of less than a total of 500
feet or a relocation of a stream with an average flow of less than 2 cubic feet per
second. The bill also repeals an exemption for municipal or county lands in
Milwaukee County and a provision that states that compliance with a stream course
permit is a presumption of the exercise of due care. The bill also allows the
legislature to authorize the changing or straightening of stream or river courses.
Removal approvals
The bill makes the following changes to current provisions regarding removal
approvals:
1. Allows the removal of materials to be authorized by the legislature.
2. Limits the scope of the general requirement for a removal contract to natural
navigable lakes. Under current law, both natural and artificial lakes are subject to
this requirement.
3. Limits the scope of the general requirement for a removal permit to
navigable streams. Under current law, both navigable and nonnavigable streams
are subject to this requirement.
4. Exempts removals for certain specified amounts if the removals are not from
an area of natural resource interest, do not contain hazardous substances, and will
be placed in an upland area.
5. Requires DNR to issue general permits for other removals that are within
specified amounts.
Boathouses
Current law, with some exceptions, imposes a prohibition on placing a
boathouse beyond the ordinary high-water mark of a navigable waterway. This bill
creates an exemption for the construction, repair, or maintenance of a boathouse that
is in compliance with all individual or general permitting requirements, that is used
exclusively for commercial purposes, that is on land zoned exclusively for commercial
or industrial purposes or is in a brownfield or blighted area, and that is located in a
commercial harbor or on a tributary of Lake Michigan or Lake Superior. Current law
defines a "brownfield" to be an industrial or commercial facility, the expansion or
redevelopment of which is complicated by environmental contamination.
Notice, hearing, and decision provisions for individual permits
Under current law, for individual placement permits, bridge permits, removal
permits, stream course permits, and enlargement permits, DNR must order a public
hearing to be held within 60 days after receiving a complete application for the
permit or provide notice (notice of application) that DNR will proceed on the
application without a public hearing unless a substantive written objection is
received within 30 days after the notice is published. DNR must provide the notice
of application to various parties and to the applicant, who in turn must publish
notice. Current law defines a "substantive written objection" to be one that gives the
reasons why the issuance of the proposed permit will violate state law and that states
that the person objecting will appear at the public hearing to present information
supporting the objection. The applicant must publish the notice in a newspaper that
is likely to give notice in the area where the waterway activity will be located (area
newspaper).
If DNR does not receive a substantive written objection within the 30-day
period, DNR proceeds on the permit application. If DNR receives such an objection,
the public hearing must be held within 60 days after being ordered. At least 10 days
before the hearing, the Division of Hearings and Appeals in the Department of
Administration must mail a notice of the public hearing to the applicant, all of the
parties who received the notice of application, and anyone who submitted a
substantive written objection. The applicant again must publish the notice in an area
newspaper.
Under current law, DNR may also use this notice and hearing procedure when
it is not specifically required if DNR determines that substantial interests of any
party may be adversely affected by the granting of the permit.
Under the bill, DNR must provide notice of a complete application to interested
members of the public within 15 days after DNR determines that the application is
complete. DNR must provide a period for public comment after providing notice that
the application is complete. If no hearing is requested, the public comment period
ends in 30 days.
If a public hearing is requested, the comment period ends 10 days after the
conclusion of the hearing. The permit application may contain a request for a public
hearing or any other person may request a hearing. DNR may also decide on its own
to hold a hearing if it determines that there is a significant public interest in the
permit. A hearing request must be submitted to DNR within 30 days of the notice
that the application is complete. DNR must then provide notice within 15 days, and
the hearing must be held within 30 days of the notice being complete. DNR must
issue its decision within 30 days after the hearing.
If no hearing is to be held, then DNR must issue its decision within 30 days after
the close of the comment period.
The changes to the applicability of the hearing and notice procedures for
individual permits under the bill include the following:
1. The procedure applies to removal approvals and stream course permits, as
well as the permits covered under current law.
2. The procedure applies to permits to place water ski jumps, replacing the
procedures that apply to these permits under current law.
3. The bill repeals the authority that allowed DNR to use these notice and
hearing procedures when they were not required to do so in making determinations
that affected navigable waters and navigation.
4. The procedures specifically apply to applications for modifications of
individual permits.
Administrative and court review of DNR decisions on individual permits
Under current law, if a substantial interest of a person is injured by an agency
action and there is a dispute of material fact, that person has the right to an
administrative hearing before an impartial hearing officer. The notice
requirements, procedures, rules of evidence, records, and right to judicial review are
specified in detail under current law.
Under this bill, an applicant for or holder of an individual permit, or five or more
persons, may ask DNR for an administrative hearing regarding the issuance, denial,
or modification of an individual permit, or regarding a term or condition of an
individual permit. If DNR determines that the request for a hearing gives specific
reasons why the department's decision violates state law, DNR is required to hold an
administrative hearing. The bill requires that the hearing be conducted as a
contested case hearing and be subject to current law's administrative hearing
requirements regarding contested case hearings, including the procedures, rules of
evidence, records, and right to judicial review.
Instead of requesting an administrative hearing to review the DNR decision,
any person who has the right to request such a hearing may bring a court action to
review DNR's decision. The bill requires the court to review the evidence and
examine witnesses, rather than review the record of DNR's action. In addition, the
bill allows a party to the administrative hearing to stop an administrative hearing
and have the court take jurisdiction over the issues raised in the hearing. If an
administrative hearing is removed to a court, that court is required by the bill to
review the evidence and examine witnesses, independent of DNR's evidence review
and witness examination.
Strategic energy assessments
Current law requires the Public Service Commission (PSC) to prepare a
strategic energy assessment every two years that evaluates the adequacy and
reliability of the state's electricity supplies. An assessment must describe, among
other things, large electric generating facilities and high-voltage transmission lines
on which utilities plan to begin construction within three years. The bill requires an
assessment to describe large electric generating facilities and high-voltage
transmission lines on which utilities plan to begin construction within seven years,
rather than three years.
Partial deregulation of telecommunications services
Under current law, a person may petition the PSC to begin proceedings for
determining whether to partially deregulate certain telecommunications services.
The PSC may also begin such proceedings on its own motion. If the PSC makes
certain findings regarding competition for such telecommunications services, the
PSC may issue an order suspending specified provisions of law. Current law does not
impose any deadlines on such proceedings.
The bill requires the PSC to complete the proceedings no later than 120 days
after a person files a petition. In addition, if the PSC begins proceedings based on
its own motion, the proceedings must be completed no later than 120 days after the
PSC provides notice of its motion. If the PSC fails to complete the proceedings and,
if appropriate, issue an order within the deadline, the bill provides for the suspension
of any provisions of law that are specified in the petition or in the PSC's motion.
Utility public benefits fund
Under current law, certain electric and gas utilities are required to make
contributions to the PSC in each fiscal year. The PSC deposits the contributions in
the utility public benefits fund (fund), which also consists of monthly fees paid by
utility customers. The fund is used by DOA to make grants for low-income
assistance, energy conservation and efficiency, environmental research and
development, and renewable resource programs. The amount that each utility must
contribute to the PSC is the amount that the PSC determines that the utility spent
in 1998 on its own programs that are similar to the programs awarded grants by
DOA.
Under this bill, the PSC may allow a utility to retain a portion of the amount
that it is required to contribute in each fiscal year under current law. However, the
PSC may allow a utility to do so only if the PSC determines that the portion is used
by the utility for energy conservation programs for industrial, commercial, and
agricultural customers in the utility's service area. Also, the programs must comply
with rules promulgated by the PSC. The rules must specify annual energy savings
targets that the programs must be designed to achieve. The rules must also require
a utility to demonstrate that, within a reasonable period of time determined by the
PSC, the economic benefits of such a program will be equal to the portion of the
contribution that the PSC allows the utility to retain. If the PSC allows a utility to
retain such a portion, the utility must contribute 1.75 percent of the portion to the
PSC, which the PSC must deposit in the fund for DOA to use for programs for
research and development for energy conservation and efficiency. In addition, the
utility must contribute 4.5 percent of the portion to the PSC for deposit in the fund
for DOA to use for renewable resource programs. The bill also prohibits a utility from
paying for expenses related to administration, marketing, or delivery of services for
the utility's energy conservation programs from the portion of a contribution the
utility is allowed to retain.
The bill also requires the PSC to promulgate rules for the grants made by DOA
from the fund for energy conservation and other programs. Under the bill, an
applicant is not eligible for such a grant unless the applicant's proposal for the grant
complies with rules promulgated by the PSC. The rules must require an applicant
to demonstrate that, within a reasonable period of time determined by the PSC, the
economic benefits resulting from the proposal will be equal to the amount of the
grant. The rules must also specify annual energy savings targets that a such
proposal must be designed to achieve.
Reciprocal agreements for real estate licenses
Under current law, the Department of Regulation and Licensing (DRL) grants
licenses that allow persons to practice as real estate brokers or salespersons.
Current law specifies the requirements a person must satisfy to obtain such a license.
The Real Estate Board (board) advises DRL on rules regarding licensing and other
matters.
This bill allows DRL to grant licenses to persons licensed as real estate brokers
or salespersons in other states and territories, in addition to persons who satisfy the
requirements specified under current law. Under the bill, DRL may, after consulting
with the board, enter into reciprocal agreements with officials of other states or
territories for granting licenses to persons licensed in those states or territories.
Comprehensive planning by local governmental units
Under the current law popularly known as the "Smart Growth" statute, if a
local governmental unit (city, village, town, county, or regional planning commission)
creates a comprehensive plan (a zoning development plan or a zoning master plan)
or amends an existing comprehensive plan, the plan must contain certain planning
elements. The required planning elements include the following: housing;
transportation; utilities and community facilities; agricultural, natural, and
cultural resources; economic development; and land use.
Beginning on January 1, 2010, under Smart Growth, any program or action of
a local governmental unit that affects land use must be consistent with that local
governmental unit's comprehensive plan. The actions to which this requirement
applies include zoning ordinances, municipal incorporation procedures, annexation
procedures, agricultural preservation plans, and impact fee ordinances. Also
beginning on January 1, 2010, under Smart Growth, if a local governmental unit
engages in any program or action that affects land use, the comprehensive plan must
contain at least all of the required planning elements.
Before the plan may take effect, however, a local governmental unit must
comply with a number of requirements, such as adopting written procedures that are
designed to foster public participation in the preparation of the plan.
Under this bill, before the plan may take effect, a local governmental unit must
provide written notice to all owners of property, and leaseholders who have an
interest in property pursuant to which the persons may extract nonmetallic mineral
resources, in which the allowable use or intensity of use, of the property, is changed
by the comprehensive plan, and must create written procedures that describe the
methods the local governmental unit will use to distribute elements of a
comprehensive plan to owners of, and other persons who have such interests in, such
property.
Fees imposed by political subdivisions
Under current law, cities, villages, towns, and counties (political subdivisions)
provide various services for which those political subdivisions may impose a fee. This
bill requires that any fee imposed by a political subdivision bear a reasonable
relationship to the service for which the fee is imposed and that, when a political
subdivision first imposes or raises a fee, the political subdivision issue written
findings that demonstrate that the fee bears a reasonable relationship to the service
for which the fee is imposed.
Patient health care records
Under current state law, patient health care records must remain confidential
and may be released by a health care provider only with the informed consent of the
patient or of a person authorized by the patient. However, patient health care
records are required to be released without informed consent by the health care
provider in specified circumstances, including for patient treatment, health care
provider payment and medical records management, and certain audits, program
monitoring, accreditation, and health care services review activities by health care
facility staff committees or accreditation or review organizations.
Under current federal law, patient health care information may be released
without patient authorization by health care providers for, among other purposes,
treatment, payment, and health care operations. "Health care operations" is defined
in federal law to include quality assessment and improvement activities;
credentialing or evaluating of health care practitioners and training; underwriting;
medical review, legal services, and auditing; business planning and development;
and business management and general administrative activities.
This bill modifies the requirement for release of patient health care records
without patient consent to authorize, rather than require, release under specified
circumstances, and to eliminate the requirement that a request for the records be
received before release. The bill also increases the circumstances under which
patient health care records are authorized to be released without patient informed
consent, to include purposes of health care operations, as defined and authorized in
federal law.
Apprenticeship-to-journeyman job-site ratios
Under current law, the Department of Workforce Development (DWD) may
determine reasonable classifications, promulgate rules, issue general or special
orders, hold hearing, make findings, and render orders as necessary to oversee the
apprenticeship programs provided in this state.
This bill prohibits DWD from prescribing, whether by promulgating a rule,
issuing a general or special order, or otherwise, the ratio of apprentices to
journeymen that an employer may have at a job site.
Acquisitions of in-state banks and bank holding companies
Current law specifies certain requirements applicable to the acquisition of an
in-state bank or in-state bank holding company by an out-of-state bank holding
company. This bill applies those requirements to similar acquisitions by
out-of-state banks.
Lawsuits concerning financial institutions
With certain exceptions, this bill prohibits any person from bringing a lawsuit
against a bank, savings bank, savings and loan association, or any affiliate of such
an institution (financial institution) based upon any of the following promises or
commitments of the financial institution, unless the promise or commitment is in
writing, sets forth relevant terms and conditions, and is signed by the financial
institution: 1) a promise or commitment to lend money, grant or extend credit, or
make any other financial accommodation; or 2) a promise or commitment to renew,
extend, modify, or permit a delay in repayment or performance of a loan, extension
of credit, or other financial accommodation. This prohibition does not apply to
transactions that are subject to the Wisconsin Consumer Act (which generally
regulates credit transactions of $25,000 or less that are entered into for personal,
family, or household purposes).
Currently, under the doctrine of promissory estoppel, the existence of an
enforceable contract may be implied if a person makes a promise, the promise is one
which the person should reasonably expect to induce action or forbearance of a
definite and substantial character, the promise induces such action or forbearance,
and injustice can be avoided only by enforcement of the promise. This bill provides
that any promise or commitment described above may not be enforced under the
doctrine of promissory estoppel. This prohibition does not apply to transactions that
are subject to the Wisconsin Consumer Act.
Financial assurance for nonmetallic mining reclamation
Current law requires counties to administer ordinances to ensure that
nonmetallic mining sites are reclaimed. "Nonmetallic" mining means extracting
substances like gravel and stone. Among other things, nonmetallic mining
reclamation ordinances must require operators to provide financial assurance to
ensure that the nonmetallic mine will be reclaimed. This bill provides that, if a city,
village, or town requires an operator to provide financial assurance for nonmetallic
mining reclamation, the county must credit the value of that financial assurance
toward the amount that the operator is required to provide under the county
ordinance.
