The statement of scope for this rule, SS 122-19, was approved by the Governor on December 5, 2019, published in Register No. 763A3 on December 9, 2019, and approved by the Natural Resources Board on February 26, 2020. This rule was approved by the Governor on June 13, 2022.
The Wisconsin Natural Resources Board proposes an order to repeal and recreate Chapter NR 300; to repeal Chapters NR 301, 305, and 310; and to amend NR 320.06(1), NR 320.06(2), NR 320.06(3), NR 320.08(3), NR 323.04(1)(a), NR 323.04(2)(a), NR 323.04(3)(a), NR 323.05(1)(a), NR 323.05(2)(a), NR 323.05(3)(a), NR 323.06(3), NR 325.13(3), NR 328.04(1), NR 328.05(1), NR 328.06(1), NR 328.09(3), NR 328.35(1), NR 328.36(1) NR 328.39(3), NR 329.04(1)(a), NR 329.04(2)(a), NR 329.04(3)(a), NR 329.05(3), NR 341.02(1), NR 341.08(1)(a), NR 341.09(1)(a), NR 341.10(3), NR 343.02(1), NR 343.07(1)(a), NR 343.08(1), NR 343.10(3), NR 345.04(1)(a), NR 345.04(2)(a)1., NR 345.04(3)(a)1., NR 345.05(3) related to administrative processes and fees for waterway and wetland permitting and affecting small business minimally through an updated fee structure.
Analysis Prepared by the Department of Natural Resources
1-3. Statute Authority, Interpretation and Explanation: This rule seeks to clarify administrative processes, procedures and fees specified in chs. 30, 31, 227 and ss. 281.36, 23.32 and 23.321, Wis. Stats. The department is responsible to implement waterway and wetland permitting, exemption and other determinations for a number of activities including wetland fill, dam construction/reconstruction, waterway structure placement, dredging, water withdrawals, etc. This rule aligns administrative processes and procedures with statutory expectations and reflect current protocols. This rule also seeks to update the fee structure for various activities to reflect inflation and increased travel and administrative costs.
4. Related Statutes or Rules: The existing chs. NR 300, 301, 305, and 310 rules are references throughout the ch. NR 300 rule series.
5. Plain Language Analysis:
The purpose of this rule is to reduce the administrative code redundancy through consolidation of chs. NR 300, 301, 305, and 310. This rulemaking also seeks to update administrative procedures for waterway regulations to align with statutory requirements specified in chs. 30, 31, 227, and ss. 281.36, 23.32, and 23.321, Wis. Stats. The purpose of ss. NR 300.01 to 300.03 is to specify this purpose and to create consistent definitions for use. The purpose of subchapter I is to articulate regulatory processes for requesting waterway and wetland exemption reviews, general permits, and individual permits. This subchapter outlines application requirements, process for review, and general standards for which the department will make decisions. This subchapter also articulates the fee structure for waterway, wetland, and dam regulatory decisions. This purpose of subchapter II is to clarify that the water quality certification process must align with applicable 401 Clean Water Act requirements. Additionally, this subchapter clarifies that the department shall waive water quality certification that are eligible for an exemption under subchapter I. Subchapter III articulates the process for stakeholders that request the department to complete an ordinary high water mark, navigability determination or wetland determination on their property. These services are options for property owners that want this information for planning purposes. This subchapter includes a description of the service, the process for a service request, service fees, and timelines. Subchapter IV clarifies the process and timeline for projects that require multiple permits under Subchapter I. This subchapter also outlines the process for after-the-fact permit process, general enforcement process and inspection authority.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The USACE - St. Paul District regulates waterway and wetland impacts under the Clean Water Act s. 404. This rule proposal is intended to bring Waterways Program administrative procedures in line with the permitting program as much as is practicable given statutory requirements. The EPA regulates water quality certification under the Clean Water Act s. 401. This rule update aims to provide consistency with recent changes to the federal water quality certification process.
7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
The department received no comments at the preliminary public hearing and during the comment period for the statement of scope.
8. Comparison with Similar Rules in Adjacent States: Illinois Administative Code 17, 1090 regulates exemption and permitting for state wetlands; Admin Code 3704 regulates public waters permitting and fees are tied annually to Consumer Price Index inflation rates. Ill. Admin Code 3702 provides the process for dam regulations.
Iowa relies on the federal water quality certification program for wetland regulations for Outstanding State Waters. Iowa does not have similar administrative code for a waterways and wetland program.
Michigan Rule 281.1300 regulates dam permits and fees, while 281.10 regulates permitting for inland lakes and streams, and 281.900 provides the administrative framework for wetland permitting and identification services.
Minnesota Chapter 8420 provides comprehensive regulations for wetland permitting, including local government roles and responsibilities, mitigation requirements, and enforcement procedures. MN Chapter 6115 regulates public waterways permitting and exemptions, including dam projects.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
This rule will align with standard application submittal processes such as the WDNR Water ePermitting System with online geolocation mapping system called the Surface Water Data Viewer (SWDV) to provide regulators, EPA and stakeholders with transparent permit decision information that can be downloaded to GIS and handheld devices for implementation reports, compliance monitoring, landscape-scale water quality analyses, and Clean Water Act reporting, among other benefits. This system is connected with the waterway and wetland permit database which has an established workflow to ensure data accuracy and consistency in alignment with the department Quality Management Plan (QMP). Information regarding number of permitted activities, service requests and timelines was collected from these standard systems. Inflation costs for fee adjustments was based on standard adjustment rates provided by the Bureau of Labor Statistics.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The proposed rule results in fee increases for small business that wish to pursue a project in waterways or wetland that require a permit or approval. The proposed rule may also impact small businesses that want the department staff to complete or confirm an ordinary high water mark or navigability determination.
Based on permit data collected from 2017-2020, it is estimated that approximately 10% of applications are from small business. As such, we estimate the total compliance cost increase to small business permittees to be approximately $24,000 per year.
11. Effect on Small Business (initial regulatory flexibility analysis):
Implementation of the proposed rule will reflect current statutes, standards, and procedures for administration of waterway and wetland permits and exemptions requests, waterways services requests, wetland identification and mapping requests, and program enforcement.
12. Agency Contact Person: Amanda Minks; 101 S. Webster St., Madison, WI, 53703;; 608-220-0368
13. Place where comments are to be submitted and deadline for submission:
A public comment period for the rule occurred from January 26, 2022, to March 7, 2022, with a public hearing held on March 7, 2022.
Section 1   NR 300 is repealed and recreated to read:
Chapter NR 300 Administration of Waterway and Wetland Permits, Exemptions, and Regulation Enforcement
NR 300.01 Purpose
NR 300.02 Applicability
NR 300.03 Definitions
Subchapter I – Regulatory Decisions
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.