The statement of scope for this rule, SS 017-22 was approved by the Governor on February 24, 2022, published in Register No. 795A1 on March 7, 2022, and approved by the Natural Resources Board on April 13, 2022. This rule was approved by the Governor on December 22, 2022. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING AND AMENDING RULES
The Wisconsin Natural Resources Board adopts an order to create NR 500.08 (3m) and amend NR 500.08 (3) (a) and 520 Table 3 Footnote (6) relating to disposal of material dredged from the Great Lakes. |
WA-17-21(E)
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority:
The department is authorized to promulgate rules under s. 289.43 (8) (d) 1., Wis. Stats.: The department may not regulate under s. 289.30 or 289.31, Wis. Stats., any facility for the disposal of material dredged by a municipality or county or a contractor for a municipality or county from Lake Michigan, Lake Superior, or bays or harbors adjacent to Lake Michigan or Lake Superior, if, among other criteria provided for in the statute, the department determines that the facility is in compliance with performance standards established by the department by rule (s. 289.43 (8) (d) 1. c., Wis. Stats.) and that the application and proposed facility are in compliance with any other conditions established by the department by rule (s. 289.43 (8) (d) 1. h., Wis. Stats.). Statutory authority to promulgate rules is also granted under s. 289.05, Wis. Stats., to establish minimum standards for the location, design, construction, sanitation, operation, monitoring and maintenance of solid waste facilities. Under s. 289.06, Wis. Stats., the department is granted authority to promulgate rules implementing and consistent with ch. 289, Wis. Stats., Solid Waste Facilities, and s. 292.31, Wis. Stats., addressing environmental repair. 4. Related Statutes or Rules:
Dredged material, or sediment, meets the definition of a solid waste when it is removed from a water body. Existing administrative rules, s. NR 500.08 (3) (a), Wis. Adm. Code, currently provide a limited exemption for the disposal of non-hazardous dredged material from Lake Michigan and Lake Superior. Under s. NR 500.08 (3) (a), a disposal facility/location is exempt from licensing and plan review requirements if the total disposed is less than 3,000 cubic yards of dredged material and complies with the performance standards specified in s. NR 504.04 (4), Wis. Adm. Code. Dredge disposal from the Great Lakes that exceeds the 3,000 cubic yard limit is often regulated under the “low-hazard waste exemption” authorized under s. 289.43 (8) (b), Wis. Stats. 5. Plain Language Analysis:
2021 Wisconsin Act 93 (Act 93), effective July 1, 2022, established requirements and exemptions in s. 289.43 (8) (d), Wis. Stats., relating to materials dredged from Great Lakes and directed the department to promulgate emergency rules. The Act states that the department “shall use the procedure under s. 227.24 to promulgate rules under s. 289.43 (8) (d) 1. no later than the first day of the 7th month beginning after the effective date of this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the first day of the 36th month beginning after the effective date of the emergency rules or the date on which permanent rules take effect, whichever is earlier. … Notwithstanding s. 227.24 (1) (a) and (3), the department of natural resources is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.” This proposed rule, which is intended to be largely self-implementing, incorporates requirements in Act 93, provides sediment sampling and analysis requirements, and outlines additional information to guide streamlined applications for dredged material disposal facility proposals.
Section 289.43 (8) (d), Wis. Stats., provides a new exemption from certain solid waste facility licensing requirements for the disposal of dredged material that is conducted by municipalities and counties and is from Lake Michigan or Lake Superior. Under Act 93, dredged material – already defined in s. NR 500.03 (71), Wis. Adm. Code, as any solid waste removed from the bed of any surface water – can be disposed of in a solid waste facility that has not obtained an operator’s license or approved plan of operation if the department determines that all of the following requirements are satisfied: — The material is dredged by a municipality or county, or a contractor of a municipality or county.
— The material is dredged from Lake Michigan, Lake Superior, or bays or harbors of those lakes.
— The dredging and disposal will have a demonstrable economic public benefit, defined under s. 281.36 (1) (am), Wis. Stats., to mean an economic benefit to the community or region that is measurable, such as increased access to natural resources, local spending by the proposed project, employment, or community investment.
— The cumulative adverse environmental impact of the dredging is insignificant and will not injure public rights or interests, cause environmental pollution, or result in material injury to the rights of any riparian owner.
— The disposal facility is in compliance with performance standards established by the department by rule.
— The disposal facility will accept dredged material for a period not to exceed 10 years or in an amount not to exceed 35,000 cubic yards in total, whichever occurs first. However, the exemption may be voided if there is a material adverse change in the contamination in the dredged material that would be disposed of at the facility, or if there is a material change in the intended use of the dredged material.
— The disposal facility is not located within 100 feet of any wetland or critical habitat area or within a floodplain, unless the project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities, such as the construction of a parking lot, public swimming area, or other improvement, and that has no unique ecological value.
— The disposal facility is not located within 100 feet of any water supply well.
— The disposal facility will confine the disposal area to as limited a geographic area as is practicable.
— The disposal facility and application are in compliance with any other conditions established by the department by rule.
Statutes also require a municipality, county, or contractor to submit an application to the department at least 60 days prior to beginning the disposal and specify that the department may not review the application until the department determines it is complete. An application may address the disposal of dredged material from a single dredging location at multiple disposal sites. The application is considered approved if the department does not provide a written objection to the application within 30 days of a complete application submittal.
This proposed emergency rule also:
— Specifies that a disposal facility boundary must be determined at the time of application. This boundary is used when determining distance from wetlands, floodplains, water supply wells, separation to groundwater, or other locational and performance standards.
— Specifies that the disposal facility waste boundary must be separated from seasonal high groundwater by a minimum depth of 3 feet. This is the same minimum distance used for projects involving the beneficial use of high-volume industrial materials under ch. NR 538, Wis. Adm. Code. — Identifies disposal facility performance standards as those listed in s. NR 504.04 (4), Wis. Adm. Code, and prevents disposal facilities created under this exemption from accepting hazardous waste, contaminated waste from a remediation site, or polychlorinated biphenyl (PCB) waste that would already be regulated under federal rules.
— Describes how to determine the maximum 10-year exemption period for the dredge disposal facility and associated tracking and notification procedures.
— Describes requirements for tracking dredge disposal amounts at a facility in order to prevent disposing of more than 35,000 cubic yards at that site.
— Defines requirements for covering and seeding the disposal facility after dredge disposal activity is complete.
— References requirements regarding storm water run-off pollution prevention control requirements at the disposal facility.
— Identifies the information required to make an application complete.
— Describes recordkeeping and reporting requirements for the disposal facility.
— Describes requirements when a project is for beach nourishment above the ordinary high water mark on a public beach that has already been noticeably disturbed by human activities.
— Identifies dredged material sampling and analysis requirements prior to disposal to determine environmental impact, using as a guide the existing ch. NR 347, Wis. Adm. Code, “Sediment Sampling and Analysis, Monitoring Protocol and Disposal Criteria for Dredging Projects.” 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
