NR 299.04(1)(b)6.
6. Public interest and public rights standards, related to water quality, set forth in ss.
30.03,
30.10,
30.11,
30.12,
30.123,
30.13,
30.15,
30.18,
30.19,
30.195,
30.196,
30.20,
30.202,
30.206,
30.21,
31.02,
31.05,
31.06,
31.07,
31.08,
31.12,
31.13,
31.18,
31.23,
88.31 and
281.15, Stats., and made applicable by
33 USC 1341 (d);
NR 299.04 History
History: Cr.
Register, May, 1981, No. 305, eff. 6-1-81; renum. from NR 299.05 and am. (1) (intro.), (b) (intro.), 2. and 6.,
Register, October, 1990, No. 418, eff. 11-1-90;
CR 02-015: am. (1) (intro.)
Register January 2003 No. 565, eff. 2-1-03;
CR 09-123: am. (1) (b) 7.
Register July 2010 No. 655, eff. 8-1-10;
correction in (1) (b) 7. made under s. 13.92 (4) (b) 7., Stats., Register April 2013 No. 688. NR 299.05
NR 299.05 Preliminary and final department action. NR 299.05(1)(1) The department shall notify the applicant, the federal permitting or licensing agency, and the regional administrator within 120 calendar days of receipt of the complete application of its determination to deny the certification, grant or conditionally grant the certification, or waive the certification.
NR 299.05(2)
(2) The department's determination shall be in writing and shall explain the reasons for granting, granting conditionally, denying or waiving certification.
NR 299.05(3)
(3) The department's decision concerning a certification shall include the following:
NR 299.05(3)(b)
(b) A statement that the department has made its decision about compliance with related state water quality standards enumerated in
s. NR 299.04 (1) and denies, grants, grants conditionally or waives certification consistent with that decision.
NR 299.05(3)(c)1.
1. A statement explaining the determination that no discharge will result from the activity or that the activity does not fall within the purview of the department's authority; and
NR 299.05(3)(c)2.
2. A statement advising the licensing or permitting agency and the applicant if the activity proposed requires authorization under requirements of state law administered by the department which are not related to water quality; and, where applicable,
NR 299.05(3)(c)3.
3. Specific recommendations to the federal permitting authority and the applicant for avoidance of waters of the state. When all reasonable alternatives necessarily result in adverse impacts on waters of the state, a waiver may recommend specific project locations, and design and construction techniques which minimize adverse impacts on waters of the state and which minimize overall environmental impacts.
NR 299.05(3)(d)
(d) A grant or conditional grant of certification shall include:
NR 299.05(3)(d)1.
1. A statement that there is a reasonable assurance the activity will be conducted in a manner which will comply with the standards enumerated in
s. NR 299.04 and, if appropriate,
NR 299.05(3)(d)2.
2. A statement of conditions which the department deems necessary with respect to the discharge including necessary monitoring requirements. Monitoring requirements shall include, but not be limited to, provisions that:
NR 299.05(3)(d)2.a.
a. At least 5 business days prior to the beginning of the discharge, the applicant shall notify the department of its intent to commence the discharge;
NR 299.05(3)(d)2.b.
b. Within 5 business days after the completion of the discharge, the applicant shall notify the department of the completion of the discharge;
NR 299.05(3)(d)2.c.
c. The applicant shall allow the department reasonable entry and access to the discharge site in order to inspect the discharge for compliance with the certification and applicable laws.
NR 299.05(3)(d)3.
3. A statement advising the licensing or permitting agency and the applicant if the activity proposed may require additional authorization under requirements of state law administered by the department which are not related to water quality.
NR 299.05(3)(e)
(e) A denial of certification shall include, a statement explaining why the department does not have reasonable assurance that the discharge will comply with the standards enumerated in
s. NR 299.04, and detailing the standards of concern.
NR 299.05(3)(f)
(f) All denials or revocations of certification shall include a statement that unless a written request for a hearing is filed with the department within 30 days after mailing of the decision, the department's decision will become final without public hearing at the end of the 30-day period.
NR 299.05(3)(fm)
(fm) All grants or conditional grants of certification shall include a statement that unless a written request for hearing is filed with the department within 30 days after publication of the decision, the department's decision will become final without public hearing at the end of the 30-day period.
NR 299.05(3)(g)
(g) All such decisions may also include other information which the department determines to be appropriate.
NR 299.05(4)
(4) Except for applications under chs.
30 and
31, Stats., the department shall, in the case of a grant or conditional grant of certification:
NR 299.05(4)(a)
(a) Notify the applicant, the licensing or permitting agency and known interested persons of its decision.
NR 299.05(4)(b)
(b) Cause notice of its decision to be published by the applicant as a class I notice under
ch. 985, Stats. Notice under this subsection shall identify the applicant and his or her address, describe the activity and its location, state the department's determination, and apprise the public of the opportunity to request a hearing under this chapter.
NR 299.05(5)
(5) Any person whose substantial interests may be affected by the department's determination may, within 30 days after publication of the notice, request in writing a contested case hearing on the matter under
ch. 227, Stats. A request for a contested case hearing shall include a written statement giving specific reasons why the proposed activity violates the standards under
s. NR 299.04 (1) (b) and provide specific information explaining why the petitioner's interests are adversely affected by the department's determination. The request for hearing shall also include a written statement specifying that the petitioner will appear and present information supporting the petitioner's objections in a contested case hearing. The department may request additional information from the petitioner to support the allegations in the petition prior to granting or denying a hearing request. In any case where a class 1 notice on the application is otherwise required by law or where a contested case hearing on an application for water quality certification will be held under some other specific provision of law, the notice and hearings shall be combined.
NR 299.05(6)
(6) Hearings requested under this section shall be contested case hearings, shall be in accordance with the procedures outlined in
ch. 227, Stats. The hearing shall be a de novo hearing on the issue of whether the department should grant, grant with conditions, deny or waive water quality certification. No hearing may be granted under this section on issues relating to water quality certification for a specific project if the same issues were, or could have been, adjudicated in another proceeding in which the petitioner or persons privy to the petitioner was named or admitted as a party.
NR 299.05(7)(a)1.
1. Upon issuance of the department's decision where no public notice is required, or
NR 299.05(7)(a)2.
2. Upon the expiration of the 30-day period provided under
sub. (5) if no person has requested a hearing under that section, or
NR 299.05(7)(a)3.
3. Upon the issuance of the department's decision denying the request for hearing under
sub. (5), or
NR 299.05(7)(b)
(b) If a hearing is held under
sub. (6), the hearing examiner shall make findings of fact, conclusions of law and a decision, which shall become final when issued in accordance with the procedures in
ch. 227, Stats., and this section.
NR 299.05(7)(c)
(c) The final decision of the department under
par. (a) shall be judicially reviewable as provided under
ch. 227, Stats.
NR 299.05 History
History: Cr.
Register, May, 1981, No. 305, eff. 6-1-81; am. (1), (2), (3) (f), (4), (5), (6) and (7) (a),
Register, November, 1981, No. 311, eff. 12-1-81; renum. from NR 299.05 and am. (3) to (6) and (7) (a) 3.,
Register, October, 1990, No. 418, eff. 11-1-90; am. (5) and (6),
Register, May, 1998, No. 509, eff. 6-1-98;
CR 02-015: am. (1)
Register January 2003 No. 565, eff. 2-1-03;
CR 09-123: am. (3) (f), cr. (3) (fm)
Register July 2010 No. 655, eff. 8-1-10.
