Statement of scope
Department of Natural Resources
Relating to: | Navigable Waterways, Chs. NR 320, 323, 326, 328, and 329, Wis. Adm. Code |
1. Finding/nature of emergency (Emergency Rule only):
This rule will be proposed as a permanent rule.
2. Detailed description of the objective of the proposed rule:
The Waterways Program plans to repeal five related administrative code chapters that govern the placement of structures in or over navigable waterways and create one consolidated code chapter. The Waterways Program administers the standards for the placement of structures in or over navigable waters through chs. NR 320, 323, 326, 328, and 329, Wis. Adm. Code. This rulemaking is necessary to align the administrative code with statutory and programmatic changes and to consolidate these rules to improve administrative efficiency. Potential Code revisions include:
i. Consolidation of redundant exemption, general permit, and individual permit eligibility criteria across affected codes.
ii. Clarify eligibility and implementation procedures for waterway exemptions including:
a. Inclusion of administrative code provisions to create exemptions for seasonally placed structures under s. 30.12(1g)(b), Wis. Stats. b. Incorporation of a recently enacted statutory exemption for culvert replacement in navigable waterways under s. 30.123(6)(d), Wis. Stats., and establish reasonable installation practices for exempt culverts to minimize environmental impacts, establish reasonable construction and design requirements for exempt culverts that are consistent with the purpose of the activity, and establish reasonable limitations on the location of exempt culverts at the site affected by the activity. c. Alignment of administrative code standards with recent statutory changes related to pier exemptions under s. 30.12(1k)(b), Wis. Stats. d. Establishment of reasonable installation practices to minimize environmental impacts, reasonable construction and design requirements, and reasonable limitations on the location of the placement of exempt piers, wharves, and temporary boat shelters.
e. Alignment of administrative code standards with statutory changes related to the allowed number of boat and personal watercraft slips under s. 30.12(1h), Wis. Stats. f. Incorporation of a statutory exemption for rock riprap in waterways under s. 30.12(1g)(jm), Wis. Stats. iii. Establish reasonable standards for waterway structure permitting including:
a. Alignment of administrative code standards with statutory changes related to the allowed number of boat and personal watercraft slips under s. 30.12(1j), Wis. Stats. b. Incorporation of statutory changes related to the issuance of permits for piers and wharfs under s. 30.12(3m)(cm), Wis. Stats. c. Incorporation of statutory changes related to the issuance of permits for the construction of permanent boat shelters under s. 30.12(3m)(cr), Wis. Stats. d. Establishment of standards related to the issuance of permits for solid piers in outlying waters, harbors connected to outlying waters, the Fox River from the dam at De Pere to Lake Winnebago, Lake Winnebago, and the Mississippi River under s. 30.12(3m)(d)2., Wis. Stats. e. Inclusion of administrative code provisions applicable to shoreline erosion control in the Great Lakes.
f. Consideration and potential incorporation of activity specific performance-based standards for permitting decisions.
g. Alignment of standards for previous rule based general permits with contemporary statewide general permits issued under s. 30.206(1)(a), Wis. Stats. iv. Incorporation of statutory definitions.
v. Update other technical or administrative aspects of affected NR codes or applicable cross references in other administrative codes related to affected activities.
Additional changes may be included in the proposed rule to effectuate the goals described in this scope statement.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
The revised rule may change the department’s existing practice. Presently, the department has multiple rule-based exemptions for activities addressed in administrative code chapters subject to this consolidation effort. However, the construction standards for these rule-based exemptions differ in many cases from newly enacted statutory exemptions for the same activity. Through this revision and consolidation effort, the department will consider aligning statutory and code standards associated with the placement of exempt structures.
The department also intends to evaluate the design standards for projects requiring department permit authorization and consider aligning administrative code language with current placement standards. Through this effort, the department will evaluate the use of complimentary performance-based standards and consider the incorporation of those standards to expand general permit eligibility for common activities.
Presently, the level of department oversight on a project is dependent on a waterway designation of Area of Special Natural Resource Interest (ASNRI), a Sensitive Area, or a Public Rights Feature (PRF). This rule will consider broadening the exemptions available for certain activities designed and installed according to recognized standards (e.g. Natural Resources Conservation Service design practices).
Presently, the department does not have any administrative code standards pertaining to shoreline erosion control structures on the Great Lakes or related to emergency erosion control requests. These revisions will consider establishing such standards.
Presently, the department does not have any administrative code standards pertaining to the construction of solid piers in outlying waters. These revisions will consider establishing such standards.
Presently, the department and US Army Corps of Engineers (Corps) regulate structures on navigable waterways. These revisions will consider aligning department and Corps standards and impact thresholds.
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Section 30.12(1p), Wis. Stats., grants authority to the department to promulgate rules concerning exempt activities under s. 30.12(1g), and (1j), Wis. Stats.
