(DNR # OE-46-10)
The Wisconsin Natural Resources Board proposes an order to revise chs.
NR 2,
19,
51,
108,
110,
126,
134,
150,
166,
101,
300,
305,
310,
327,
345,
410,
512,
670, and
820, relating to the Department's environmental analysis and review procedures under the Wisconsin Environmental Policy Act.
NOTICE IS HEREBY GIVEN that pursuant to ss.
1.11 and
227.11, Wis. Stats., the Department of Natural Resources will hold public hearings on revisions to ch.
NR 150, Wis. Adm. Code, relating to the Department's environmental analysis and review procedures under the Wisconsin Environmental Policy Act. The proposed rule revisions would make the Department's WEPA compliance more effective, meaningful and consistent with WEPA and s.
1.11, Wis. Stats. The revised rule will emphasize the analysis of broad issues and policies, de-emphasize document production for individual project actions, and provide for meaningful public involvement.
The hearing will be held on:
Hearing Information
Date: Tuesday, April 16, 2013
Time: 11:00 a.m. to 2:00 p.m.
Location: Eau Claire Room
LE Philips Memorial Library
400 Eau Claire Street
Eau Claire, WI
Date: Tuesday, April 16, 2013
Time: 11:00 a.m. to 2:00 p.m.
Location: Green Bay DNR Service Center
2984 Shawano Avenue
Green Bay, WI
Date: Tuesday, April 16, 2013
Time: 2:00 p.m. to 5:00 p.m.
Location: Room G09
State Natural Resources Building (GEF 2)
101 South Webster Street
Madison, WI
The Department will hold an open house for one-half hour prior to each hearing. Department staff will be available to answer questions regarding the proposed rule.
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Jeff Schimpff at (608) 267-7853 with specific information on your request at least 10 days before the date of the scheduled hearing.
Availability of Rules and Submitting Comments
Written comments on the proposed rule may be submitted via U.S. Mail to Mr. Jeff Schimpff, Bureau of Energy, Transportation, and Environmental Analysis (ETEA/7), P.O. Box 7921, Madison, WI 53707. Comments may be submitted until April 26, 2013. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Jeff Schimpff, Bureau of Energy, Transportation, and Environmental Analysis (ETEA/7), P.O. Box 7921, Madison, WI 53707
Analysis Prepared by the Department of Natural Resources
Statutes interpreted
Statutory authority
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.
Related statutes or rules
WEPA compliance is a requirement for all state agencies and Department programs. As a result, many statutes and codes are WEPA and NR 150-related.
Statute chapters: Chapters
16,
23,
30,
33,
160,
196,
227,
285,
289,
291, and
293, Stats.
Administrative Code chapters: Chapters
NR 1,
2,
19,
44,
48,
52,
60,
103,
107,
108,
110,
126,
128,
131,
132,
133,
134,
162,
166,
182,
191,
200,
243,
299,
300,
305,
310,
327,
345,
347,
406,
410,
489,
512,
670,
820, and
852.
The department proposes several housekeeping changes to some of these other administrative codes that would have obsolete ch.
NR 150 references after the changes to ch.
NR 150 are codified.
Plain language analysis
WEPA and ch.
NR 150 are cornerstone laws for the agency that date back to the early 1970's. The rule change will make the Department's WEPA compliance more effective, meaningful and consistent with WEPA and s.
1.11, Wis. Stats. The new rule emphasizes the analysis of broad issues and policies, reduces process and paperwork requirements for individual project actions, and provides clear procedures for public involvement.
The new rule will require that the Department: 1) identify and analyze environmental issues important for their geographic, multidisciplinary, or policy scope; 2) analyze issues earlier, when alternative options have not been foreclosed; 3) provide that environmental analysis information be incorporated into departmental policy and decision-making; 4) define and provide meaningful public involvement; 5) address the information/policy-driven requirements of s.
1.11 (2) (e) and
(h), Stats., as separate from the action/project-driven requirements of s.
1.11 (2) (c), Stats.; 6) identify and eliminate process requirements that have become duplicative over time as a result of changes in statutory authorities and administrative practice; and 7) replace the current Ch.
NR 150, Wis. Adm. Code type list with criteria for identifying, prioritizing, analyzing and seeking public input on relevant issues.
The new rule eliminates the use of Environmental Assessments as a means of WEPA compliance for individual actions. The new rule adds new process and procedures for bigger picture strategic policy analyses.
The fundamental Department policy regarding WEPA, as currently embodied in NR 150, will not change. The rule re-creation will result in a number of procedural changes and a new emphasis on how the Department applies the Wisconsin Environmental Policy Act, especially to its policy development actions.
Summary and comparison with existing and proposed federal 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 was based in part upon the federal CEQ guidelines. This proposed revision of ch.
NR 150 will remain substantially consistent with the CEQ guidelines.
Comparison of similar rules in adjacent states
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.
Summary of factual data and analytical methodologies
The Department of Natural Resources Office of Energy and Environmental Analysis (OEEA) staff reviewed relevant WEPA case law and federal CEQ regulations, obtained the input of an internal team of staff from several Department programs, and involved a broad range of potentially interested and affected external parties.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
Chapter
NR 150 is an administrative process rule that applies internally to the Department, so impacts to businesses are minimal.
Effect on Small Business
Businesses that may be affected by this rule revision include mainly those that are required to apply for certain DNR permits for projects. The level of environmental analysis required for DNR actions will be considerably less under the proposed rule.
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at
SmallBusinessReg. Coordinator@dnr.state.wi.us or by calling (608) 266-1959.
Environmental Impact
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
A Copy of any Comments and Opinion Prepared by the Board of Veterans Affairs under s.
45.03 (2m), Stats., for Rules Proposed by the Department of Veterans Affairs
Not applicable.
Agency Contact Person
David Siebert, Director
Office of Energy and Environmental Analysis
Phone: (608) 264-6048
David.Siebert@Wisconsin.gov
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA-2049 (R03/2012)
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Division of Executive Budget and Finance
101 East Wilson Street, 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
FAX: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
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1. Type of Estimate and Analysis
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X Original
⍽ Updated
⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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Chapter NR 150 - Environmental analysis and review procedures for department actions.
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3. Subject
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Implementation of Wisconsin Environmental Policy Act, s. 1.11 Wis. Stats.
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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X GPR
⍽ FED
⍽ PRO
⍽ PRS
X SEG ⍽ SEG-S
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No
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6. Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
⍽ Local Government Units
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⍽ Specific Businesses/Sectors
⍽ Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes X No
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9. Policy Problem Addressed by the Rule
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This rule was last updated in a significant way in 1987. Over time, many WEPA process requirements have become duplicative of analysis and public involvement steps in internal review processes and regulatory program processes. This is a result of changes in statutory authorities and administrative practice, especially in the operations of environmental permit review programs. The revised rule emphasizes identifying and eliminating such duplication. This rule proposes to shift resources to conducting issue or policy analyses.
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10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
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Businesses that may be affected by this rule revision include mainly those that are required to apply for certain DNR permits for projects. The workload of environmental analysis required for repetitive DNR actions will be considerably less under the proposed rule. Chapter NR 150 is an administrative process rule that applies internally to DNR, so any impacts to businesses are minimal. DNR convened an external group to advise on rule development that included agribusiness, developers, manufacturers, homebuilders, utilities and conservation groups.
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11. Identify the local governmental units that participated in the development of this EIA.
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Our external review group included a representative of the WI Towns Assn, as well as an attorney who regularly represents municipalities on wastewater, wetlands, waterway, water supply, stormwater and other environmental issues.
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12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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We estimate that the proposed rule will have a minimal economic impact because it affects the internal operating procedures of the department. It does not directly affect businesses, local governments, or other entities. Although the intent of the proposal is to increase the efficiency and effectiveness of department project-specific actions under WEPA, any staff resources made available as a result will be devoted to other issues that address the broader impacts of categories of actions of generally statewide importance.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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The rule change will make the Department's WEPA compliance more effective, meaningful and consistent with WEPA and s. 1.11, Wis. Stats. The revised rule will emphasize the analysis of broad issues and policies, de-emphasize workload associated with individual project actions, and provide meaningful public involvement. The new rule will require that the Department: 1) identify and analyze environmental issues important for their geographic, multidisciplinary, or policy scope; 2) analyze issues earlier, when alternative options have not been foreclosed, and on an ongoing basis; 3) provide that environmental analysis information be incorporated into departmental policy and decision-making; 4) define and provide meaningful public involvement; 5) address the information/policy-driven requirements of s. 1.11(2)(e) and (h) as separate from the action/project-driven requirements of s. 1.11(2)(c); 6) identify and eliminate process requirements that have become duplicative over time as a result of changes in statutory authorities and administrative practice; and 7) replace the current Ch. NR 150, Wis. Adm. Code type list with criteria for identifying, prioritizing, analyzing and seeking public input on relevant issues.
Alternatives to the proposed rule changes would include leaving NR 150 as it currently is. This alternative was rejected as not meeting the need to more effectively and efficiently implement s. 1.11, Wis. Stats.
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14. Long Range Implications of Implementing the Rule
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The rule change will make the Department's WEPA compliance more effective, meaningful and consistent with WEPA and s. 1.11, Wis. Stats.
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15. Compare With Approaches Being Used by Federal Government
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This revised rule is similar to the existing rule, in that it substantially follows the guidelines of the federal Council on Environmental Quality, as directed by s. 1.11, Wis. Stats.
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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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.
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17. Contact Name
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18. Contact Phone Number
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David Siebert
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608-264-6048
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This document can be made available in alternate formats to individuals with disabilities upon request.
ATTACHMENT A
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1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)
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None
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2. Summary of the data sources used to measure the Rule's impact on Small Businesses
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None
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3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?
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⍽ Less Stringent Compliance or Reporting Requirements
⍽ Less Stringent Schedules or Deadlines for Compliance or Reporting
⍽ Consolidation or Simplification of Reporting Requirements
⍽ Establishment of performance standards in lieu of Design or Operational Standards
⍽ Exemption of Small Businesses from some or all requirements
X Other, describe:
NR 150 is largely an internal process rule, so rule changes would have no measurable impact upon small businesses.
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4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses
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Not applicable.
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5. Describe the Rule's Enforcement Provisions
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This rule carries no enforcement provisions. Disputes regarding the need to conduct an analysis and the procedures to follow for the analysis and public involvement have administrative and judicial avenues of appeal.
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6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)
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⍽ Yes X No
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Notice of Hearing
Natural Resources
Fish, Game, etc., Chs.
NR 1—
(DNR # FR-24-11)
NOTICE IS HEREBY GIVEN THAT pursuant to Section
28.05 (3) (am), Wis. Stats.,
the Department of Natural Resources will hold a public hearing on revisions to ch.
NR 1, Wisc. Adm. Code, relating to the promulgation of a rule that establishes a program allowing cooperating foresters and private contractors to assist the state in regenerating harvested areas of state lands to meet the annual allowable timber harvest established under Wis. Stat. s.
28.025. The statute also directs the department to pay for the services from a portion of the proceeds received from timber sales. Section
28.05 (3) (am) Wis. Stats., created by
2011 Act 32; and Section
28.025, Wis. Stats., created by
2005 Act 166, required the Department to promulgate this rule.
Hearing Dates and Locations
Date: Friday, April 26, 2013
Time: 1:30 p.m.
Location: State Natural Resources Building
Room G09 (GEF 2)
101 S. Webster Street, Madison, WI 53703
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Tim Beyer at (920) 892-8756 x3047 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Documents
The proposed rule and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov (Search this Web site using the Natural Resources Board Order No. FR-24-11). If you do not have Internet access, a personal copy of the proposed rule and supporting documents may be obtained from, Tim Beyer, 1155 Pilgrim Road, Plymouth, WI 53073or by calling (920) 892-8756 x3047.
Written Comments
Written comments on the proposed rule may be submitted via U.S. mail to Mr. Tim Beyer, Wisconsin Department of Natural Resources, 1155 Pilgrim Road, Plymouth WI 53073 or by e-mail to
tim.beyer@wisconsin.gov. Comments may be submitted until April 8th, 2013. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.
Analysis Prepared by the Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority to promulgate the proposed rules under the statutory authority
2011 Act 32, Section
913e., s.
28.05 (3) (am), Wis. Stat., directs the department to, by rule, establish a program that allows cooperating foresters and private contactors to assist the state in regenerating harvested areas of state lands to meet the annual allowable timber harvest established under Wis. Stat. s.
28.025. The statute also directs the department to pay for the services from a portion of the proceeds received from timber sales.
Related rule or statute
Sections
28.02,
28.025,
28.04 and
28.05, Stats., give authority to the department to hold and acquire forestland, to manage it sustainably for numerous purposes and benefits, to identify and undertake allowable timber harvests, and to regenerate said affected annual harvest areas.
Plain language analysis
This rule will include provisions authorizing the department to contract with cooperating foresters and private contractors to conduct artificial and natural forest regeneration activities including site preparation, tree planting, and invasive species control associated with forest regeneration. The rule shall authorize cooperating foresters and private contractors with whom the department contracts under this paragraph to receive a portion of the proceeds from timber harvests on state lands.
Summary of, and comparison with, existing or proposed federal regulation
The federal government provides a similar mechanism on federal lands. The USDA Forest Service utilizes the Knutson-Vandenberg – Brush Disposal (KV-BD) accounts, which are deductions from timber sales to fund forest regeneration and reduce fire hazard. The USDI Bureau of Indian Affairs utilizes Forest Management Deductions (FMD) under 25. CFR §
163.25 for a similar purpose.
Comparison with rules in adjacent states
A search of rules in Minnesota, Michigan, Iowa and Illinois revealed that these adjacent states do not have any similar rules.
Summary of factual data and analytical methodologies
2005 Act 166 promulgated the process to provide an inventory of all forested public lands, identify the forest resources available for management, develop annual allowable harvest levels, and undertake such management within 90% and 110% of those levels. Act 166 further provided a mechanism, through the use of Cooperating Foresters, to assist the department in establishing timber sales. What was not provided was an additional funding source to implement pre and post-harvest regeneration treatments in the areas identified to be managed. These funds are needed to ensure the forest continues to be sustainably managed and to assure that the post-harvest stand will continue to produce re-occurring forest products and other public benefits within state and certification guidelines. To date, department owned lands have seen a 190% increase in timber sale activity since 2005 from approximately 9700 acres to approximately 25,000 acres per year. With an increase in timber sale activities, regeneration needs closely follow the acres harvested.
In 2009, the Division of Forestry went through a property level analysis of what their projected annual regeneration needs would be (both in cost and area) for the next 10 years based on projected annual allowable harvest levels based on
2005 Act 166. It was determined that the regeneration costs (manpower, services, and supplies) significantly out-paced the funding available to perform regeneration related work given the increase in harvest levels.
In the absence of the new rule the department would rely on gifts, grants, and limited existing regeneration funds to implement regeneration activities on state owned lands. In the event that these funding sources would fall short of regeneration needs, the ability to achieve future desired conditions on state lands will continue to be hampered. In addition, land managers may be apprehensive to manage more complex ecosystems where a quick response of regeneration is required. The new rule will provide assurance that funding will be available to implement forest regeneration activities after harvesting has occurred.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
There are no new compliance, reporting, or bookkeeping requirements with the proposed rule.
Effect on Small Business
This rule does affect small business. It would create opportunities for cooperating foresters and private contractors to expand into providing more services on state-owned lands; but the rule does not impose any new regulatory requirements on small businesses
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at
DNRSmallBusinessCoordinator@Wisconsin.gov or by calling (608) 266-1959.
Environmental Assessment