CR_15-037 The department's environmental analysis and review procedures under the Wisconsin Environmental Policy Act

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING , AND CREATING RULES

The Wisconsin Natural Resources Board proposes an order to repeal NR 150.03 (11), NR 150.10 (1m) (b), and 150.20 (3) (a) 4. and 5.; to renumber NR 150.20 (2) (a) 5. ; to renumber and amend NR 150.20 (2) (a) 18. and 19.; to amend 150.03 (1), (15) (intro.), (19), (25) and (26), 150.10 (1) and (1m) (a), (c) (intro.) and (2) (a), 150.20 (1), (1m) (a), (b), (d), (j), and (k), (2) (a) (intro.), 4., 7., 8., 10., 11., 12., 13., 14., 16., (2) (b), (3) (a) (intro.), 1., 6., 7., and 8., and (4) (b) (intro.), 150.30 (1) (g), (2) (b), (3) (c) 3., and (d), and 150.35; and to create NR 150.02 (Note), 150.03 (5m), (12m), (16m), (17m) and (Note), and (23m), 150.20 (1m) ( ge ), (gm), ( gs ), ( jg ), ( jr ), (m), (n), (nm), (o), (p), ( pe ), (pm), ( ps ), (q), ( qm ), (r), (s), ( sb ), (sf), ( sk ), ( sp ), ( ss ), ( sw ), ( sy ), (t), (u) and (Note) , ( ug ), ( ur ), (v), and (w), (2) (a) 2r., 3c., 3g., 3n., 7e., 7m., 7s., 18m., 19m., 20., 21., 22., and (3) (a) 9. and 10., and 150.30 (3) (d) (Note) relating to the department's environmental analysis and review procedures under the Wisconsin Environmental Policy Act .

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Analysis Prepared by the Department of Natural Resources

1. Statute interpreted: Section 1.11 , Stats.

2. Statutory authority: Sections 1.11 and 227.11 , Stats.

3. 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.

4. Related statute or rule: Wisconsin Environmental Policy Act (WEPA) c ompliance is a requirement for all state agencies and department programs. As a result, many statutes and codes are WEPA and ch. NR 150 -related.

Statute chapters: chs . 16 , 23 , 30 , 33 , 160 , 196 , 227 , 285 , 289 , 291 , 292 and 293 , Stats .

Administrative Code chapters : chs. NR : 1, 2, 19, 44, 48, 52, 60, 103, 107, 108, 110, 113, 126, 128, 131, 132, 133, 134, 162, 166, 182, 191, 200, 243, 299, 300, 305, 310, 327, 345, 347, 406, 410, 489, 512, 670, 700-754, 820, and 852.

5. Plain language analysis:

Ch apter NR 150 was revised and went into effect April 1, 2014. An emergency rule was approved by the Natural Resources Board in August 2014 and expire d May 27, 2015. A revised scope statement was approved by the Governor on December 11, 2014 and approved by the Natural R es o urces Bo a rd on Febr uary 25, 2015. A second emergency rule consistent with the new scope statement was approved Natural Resources Board in May 201 5. Public comments on the prop o s ed permanent rule occurred in May and June, with a p ublic hearing held in Madis o n on June 2.

Th e purpose of the proposed permanent rule is to clarify the procedures for the review and analysis of new administrative rules in order to assure that the intent of the ch. NR 150 revision is being met and potential procedural questions do not invalidate the years of work and public engagement on new rules packages, and for additional housekeeping changes to ensure that the intent of the recent ch. NR 150 rewrite is being met all in a manner that is consistent with past WEPA compliance approaches that have been upheld by the courts.

The proposed rule c larif ies that emergency rules are “minor actions”, requiring no environmental analysis, and that the process for developing permanent rules is an “ integrated analysis action , ” requiring no separate environmental analysis process. The April 2014 revision of the rule was not perfectly clear to this point.

Procedures for WEPA compliance determinations and publication requirements have been clarified.

Th is proposed permanent rule includes clarification changes regarding strategic analysis requirements. Consistent with the intent of the current rule, the rule clarifies that a strategic analysis is required for review of significant policies, but for other policies or issues the strategic analysis may be used as a discretionary tool.

The list of minor actions, not requiring environmental analysis, has been expanded to include actions that originally were intended to be outlined in program guidance. The April 2014 version relied on reference to “routine and small-scale” permits or approvals as a catch-all category for minor actions that would be listed in guidance and reviewed by the public through the guidance review process. The revision in th is proposed permanent rule clarifies by rule the list of activities that are minor actions .

 

The terminology of “ equivalent analysis actions, ” for which a detailed environmental analysis and public disclosure are already conducted as part of department programmatic procedure s , has been changed to “integrated analysis actions” and the definition has been clarified to explain that no separate environmental analysis process is required. The list for this category has been expanded and amended to provide additional clarity on actions covered under this subsection .

The list of prior compliance actions, for which one or more environmental analysis documents exist for similar prior actions, has been expanded to provide additional clarity on actions covered under this subsection.

6. Summary of, and comparison with, existing or proposed federal statutes and regulation s :

The 1970 Wisconsin Environmental Policy Act (W EPA) and s. 1.11 , St ats., 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 and these clarifying provisions are based in part upon the federal CEQ guidelines. This proposed revision of ch. NR 150 will remain substantially consistent with the CEQ guidelines as required under s. 1.11 (2)(c) , Stats.

7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota) :

Neighboring states have significant differences in their related laws, so the opportunity to gain from their experience is limited. For example, Minnesota requires th at counties also follow WEPA-l ike 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.

8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen : Department of Natural Resources staff obtained the input of an internal team of staff from several department programs, building on the prior review of relevant WEPA case law and federal CEQ regulations .

9. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact report: Chapter NR 150 is an administrative process rule that applies internally to the department, so impacts to businesses are minimal.

1 0 . Effect on small business (initial regulatory flexibility analysis) :

There will be no impact to small business as a result of this rule revision. This proposed permanent rule will benefit small businesses to the extent that they clarify any ambiguity of the intent of the rule, as presented to the public and approved by the NRB.

11 . Agency contact person:

Jim Pardee

Phone: [phone]

SECTION 1. NR 150.02 ( N ote) is creat ed to read:

NR 150.02 (Note) There are several statutory exemptions from s. 1.11 , Stats., including the following: s. 30 .025 , Stats. (construction of certain high voltage transmission lines); ss. 160.23 and 160.25 , Stats. (responses to groundwater standards exceedances ); s. 283.93 , Stats. (WPDES permit actions, except for WPDES pe rmit actions for new sources); s. 285.60(2g)(b) and (3)(b) , Stats. (air registration permits and general permits); and ss. 295.44 , 295.45 , 295.65 , and 295.645 , Stats. (ferrous mining exploration licenses, bulk sampling approvals , successor operators, and responses to groundwater standards exceedances ). T he d epartment may have previously conducted environmental analyses under s. 1.11 Stats., for actions that are exempt under s. 283.93 , Stats., even though the d epartment was not statutorily required to do so.

SECTION 2. NR 150.03 (5m) and (12m) are created to read:

NR 150.03 (5m) “Department facility” means department infrastructure, including dams, buildings, roads , and trails for resource management, public use , or other purposes.

(1 2m ) " Integrated analysis action " means a department action for which department programmatic procedures provide for public disclosure and include an environmental analysis that provides sufficient information to establish that an environmental impact statement is not required .

SECTION 3. NR 150.03 (1) is amended to read:

NR 150.03 (1) “ Action” means any final decision by the department to exercise the department’s statutory or administrative rule authority that affects the quality of the human environment including actions under s. NR 150.20 (1m) to (4) , but not includ ing policies as defined in sub. (19) .

SECTION 4 . NR 150.03 (10) and (1 1 ) are repealed.

SECTION 5 . NR 150.03 (1 5 ) (intro.) is amended to read:

NR 150.03 (15 ) (intro.) “Minor action” means a department action that is not subject to s. 1.11 (2) (c) , Stats., because it is not in conflict with local, state or federal environmental policies and is not likely to do any of the following:

SECTION 6 . NR 150.03 (16m) and (17m) and (Note) are created to read:

NR 150.03 (16m) “ Natural resource management, timber management , or environmental restoration” includes all actions associated with the management, economic production, protection , and restoration of native and non-native fish, game, plants, trees and timber, habitat protection, habitat management, habitat restoration, silvicultural practices, forest inventory, chemical and mechanical site preparation, timber harvesting, timber sales, timber transporting, tree planting, direct seeding, forest type conversions, invasive species control, timber stand improvement activities, forest nursery operations, prescribed burning, fire prevention, fire detection, fire suppression , rehabilitation of fire burned areas, environmental remediation, fish hatchery operations, state game farm operations, pesticide or herbicide applications , and field surveys for environmental protection.

(17m) “New source” has the meaning given in s. 283.01(8) , Stats.

Note: Section 283.01(8) , Stats., defines “new source” to mean any point source the construction of which commenced after the effective date of applicable effluent limitations or standards of performance.

SECTION 7 . NR 150.03 (19) is amended to read:

NR 150.03 (19) " Policy” means a written plan or set of guiding principles, priorities, or protocols to guide department action that has been enacted as a statute, promulgated as an administrative rule, issued as a department manual code, or approved in writing by the natural resources board or the department secretary , but does not include actions as defined in sub. (1) .

SECTION 8 . NR 150.03 (23m) is created to read:

NR 150.03 (23m) “Publicly announce ” or “ public announcement” means publication on the department’s internet web site, or other reasonable m ethods to provide public notice .

SECTION 9 . NR 150.03 (25) and (26) are amended to read:

NR 150.03 (25) “Strategic analysis” means an environmental and alternatives analysi s o f an y an issu e o r polic y whic h involve s unresolved conflicts concerning alternative uses of available resources, within the meaning of s. 1. 1 1 (2) (e) , Stats .

(26) “Unresolved conflicts concerning alternative uses of available resources ” mean s a n unsettle d disagreemen t between experts, policymakers of local, state, or tribal governments, or citizen interest groups in Wisconsin concerning a departmen t polic y a f fecting the utilization of a substantial natural resources, between experts, policymakers of local, state, or tribal governments, or citizen interest groups in W isconsin or physical resource where the utilization would be of sufficient magnitude that , on a statewide or regional basis , it would have a considerable and important impact to the natural resources of the state . To be considered an unresolved conflict concerning alternative uses of available resources, the disagreeing parties must have identified a technically and economically feasible alternative use of the contested physical or natural resource, or both, and have the ability to reasonably implement that alternative .

SECTION 10 . NR 150.10 (1) and (1m) (a) are amended to read:

NR 150.10 (1) GENERAL REQUIRE MEN T PURPOSE . Pursuan t t o Th is section establishes the procedures to fulfill the requirements of s . 1. 1 1 (2 ) (e) and (h) , Stats. , th e departmen t shal l stud y , develop, and describe alternatives for natural resource issues or policies which involve unresolved conflicts concerning alternative uses of available resources.

(1m) (a) Administrative rules and manual codes Policies . The department shall conduct a strategic analysis for all new or revised administrative rules and manual codes policies if both of the following apply:

1. Th e rul e o r manua l cod e policy involve s unresolve d conflict s con cerning alternative uses of available resources.

2. The department has substantial discretion in formulating important provisions of the rule or manual code policy .

SECTION 1 1 . NR 150.10 (1m) (b) is repealed.

SECTION 1 2 . NR 150.10 (1m) (c) (intro.) and (2) (a) are amended to read:

NR 150.10 (1m) (c) Other issues or policies. (intro.) The Although not required under this section, the department may conduct a use the strategic analysis processes in subs. (2) to (4) for any of the following issues or policies :

(2) (a) Genera l r equi r ement. Th e departmen t shall determine the scope of important issues to be analyzed the analysis , potential alternative approaches , potentiall y a f fecte d natura l resources , and likely e f fects of the alternatives on those resources. The department shall also identify incomplete or unavailable information that is relevant to a reasoned choice among alternatives .

SECTION 1 3 . NR 150.20 (1) and (1m) (a) , ( b ) , and ( d ) are amended to read:

NR 150. 20 (1) PROCEDURES ES T ABLISHED PURPOSE . Thi s sectio n establishes appropriate procedures fo r th e environmenta l analysi s tha t WE P A requires for all department actions except those specifically exempted by statute. Notwithstanding subs. (1m) to (3 ) , the department ma y determin e t o follo w th e EI S procedure s i n s . NR 150.30 for any action the procedures to fulfill the requirements of s. 1.11(2)(c) , Stats .

(1m) (a) A real estate action, including property boundary establishment or modification, purchase, sale, easement, lease, or designation , redesignation , or dedication .

(b) Facility development Development or construction of new department facilities that follows protocols.

(d) The operation, repair, maintenance, remova l, or in-kind replacement of existing department facilities that follows protocols .

SECTION 1 4 . NR 150.20 (1m) ( ge ), ( gm), and ( gs ) are created to read:

NR 150.20 (1m) ( ge ) Educational activities.

(gm) Model ordinances developed to assist municipalities in the creation of ordinances.

( gs ) Consultation offered to third parties.

SECTION 1 5 . NR 150.20 (1m) (j) is amended to read:

NR 150.20 (1m) (j) Reissuance , modification, revocation , and reissuance, or issuance of a routine or small−scale permit approval or action .

SECTION 1 6 . NR 150.20 (1m) ( jg ) and ( jr ) are created to read:

NR 150.20 (1m) ( jg ) Routine variances from department rule requirements.

( jr ) Denial, termination, revocation, or suspension of a grant, permit, license, approval, variance, land application site, or of any proposed activity.

SECTION 1 7 . NR 150.20 (1m) (k) is amended to read:

NR 150.20 (1m) (k) Issuance of a A routine or small−scale approval or action, or an approval or action associated with a permit.

SECTION 1 8 . NR 150.20 (1m) (m), (n), (nm), (o), (p), ( pe ), (pm), ( ps ), (q), ( qm ), (r), (s), ( s b ), (sf), ( sk ), ( sp ), ( ss ), ( sw ), ( s y ), (t), (u), (Note) , (ug), (ur), (v), and (w) are created to read:

NR 150.20 (1m) (m ) Promulgation of emergency administrative rules under ch. 227 , Stats.

( n ) Any enforcement action.

( nm ) Any emergency action that protects public health, safety , or welfare.

( o ) Issuance of a minor source construction permit under ch. NR 406 or an operation permit renewal or revision under ss. 285.6 0 , an d 285.6 2 , Stats . , for air emission sources.

( p ) Issuance of licenses for servicing septage and approvals of county programs to regulate the disposal of septage under s. 281.48 , Stats.

( p e ) Issuance of operator certifications under s. 281.17 (3) , Stats., and licenses or registrations for well drillers and pump installers.

(pm) Approvals of geothermal heat exchange projects.

( ps ) Approvals of additives to wastewater or cooling water.

( q ) Issuance of general permits established by administrative code under ch. 30 , Stats.

( q m ) Issuance of aquatic plant management permits under ch. NR 109 .

( r ) Listing and delisting of an impaired water as defined in s. NR 151.002 (16m) .

(s) Review and approval of municipal ordinances or approval of changes to municipal floodplain or shoreland-wetland maps.

( sc ) Temporary drawdowns of dams under s. 31.02 , Stats.

(s g ) Reconstruction and r epairs of dams under s s. 31.1 2 , 31.18 , or 31.185 , Stats.

( s l ) Transfer of dam ownership under s. 31.14 , Stats.

( s p ) Dam inspections under s. 31.19 , Stats.

( s t ) Plan approvals for dams under s. 31.33 , Stats., and approvals of emergency action plans, inspection plans, operation and maintenance plans, dam failure analysis plans, or stability analysis plans under ch. NR 333 .

( sx ) Review and approval of hydrologic and hydraulic studies for floodplain mapping under s. NR 116.07 .

( t ) Approval of construction plans and specifications under s. 281.41 , Stats., for municipal and industrial pretreatment wastewater facilities, public water systems , and CAFO reviewable structures.

(u ) Decisions related to evaluations of existing reviewable facilities and systems for concentrated animal feeding operations under ch. NR 243 .

Note: This subsection does not include the c oncentrated a nimal f eeding o perations permit actions identified as integrated analysis actions pursuant to s. NR 150.20(2) (a) 3w .

( u g ) Approvals of land application or nutrient management plans or modifications to the plans.

( u r ) Approvals of land application sites.

( v ) Issuance of natural heritage inventory permits, approvals , or licenses under c h. NR 29 except for permits issued under s. 29.604 (6m) , Stats .

( w ) Issuance of an order or any action relating to the forest croplands or managed forest land programs under subch. I or VI of ch. NR 77 .

SECTION 1 9 . NR 150.20 (2) (a) (intro.) is amended to read:

  NR 150.20 (2) EQUIVALENT INTEGRATED ANALYSIS ACTIONS (a) (intro.) Th e followin g actions require a WE P A compliance determination under s. NR 150.35 but do not require a separate additional environmental analysis process under this chapter becaus e a detaile d environmenta l they are integrated analysi s actions an d publi c dis closure are conducted as part of the department programmatic procedure :

SECTION 20 . NR 150.20 (2) ( a) 2r., 3c., 3g., and 3n. are created to read:

NR 150.20 (2) (a) 2r. Cooperative state trail planning .

3c. Development of total maximum daily loads as defined in s. NR 151.002 (46m) .

3g. Issuance, reissuance, revocation and reissuance, or modification of a WPDES permit that authorizes a new source discharge that is subject to antidegradation review under ch. NR 207 .

3n. Approval of a variance from a water quality standard under ch. 283 , Stats.

SECTION 2 1 . NR 150.20 (2) (a) 4. is amended to read:

NR 150.20 (2) (a) 4. Issuance of a major source construction permit under ch. NR 405 or 408 or an initial operation permit under ss. 285.6 0 , 285.61 , an d 285.6 2 , Stats. , fo r a ne w sourc e o r modifica tion or relocation of an existing air emission source sources .

SECTION 2 2 . NR 150.20 (2) (a) 5. is renumbered NR 150.20 (2) (a) 2g.

SECTION 2 3 . NR 150.20 (2) (a) 7. is amended to read:

  NR 150.20 (2) (a) 7. A solid or hazardous waste feasibility approval or a commercial PCB waste storage or treatment facility feasibility approval under ss. 289.25 and 289.53 , Stats., and chs. NR 157 , 182 , and 512 , and 670 .

SECTION 2 4 . NR 150.20 (2) (a) 7e., 7m., and 7s. are created to read:

NR 150.20 (2) (a) 7e. Funding decisions made pursuant to ch. 292 , Stats., and chs. NR 700 to 754 .

7m. Issuance of regulatory approvals, liability clarification letters, exemptions , and technical assistance under ch. 292 , Stats., and chs. NR 700 to 754 .

7s. Except for facilities specified in s. 291.27 , Stats., the approval of a feasibility and plan of operation report and issuance of a license for either a new or existing hazardous waste treatment, storage, or disposal facility or class 3 modification of an existing hazardous waste treatment, storage, or disposal facility under ch. NR 670 and s. 291.25 , Stats.

SECTION 2 5 . NR 150.20 (2) (a) 8., 10., 11., 12., 13., 14., and 16. are amended to read:

  NR 150.20 (2) (a) 8. Issuance of an individual wetland permit or general permit under s. 281.36 (3m) , Stats.

10. Issuance of findings of public interest under s. 30.11(5) , Stats., for a proposed lease for modification of an existing shoreline under s. 30.11 , Stats of the bed of a lake or lease of rights to fill in a bed of a lake or a navigable stream .

11. Issuanc e o f a n individua l permi t fo r structure s o n th e beds of navigable waters or to construct culverts and bridges across navigable waters under ss . 30.12 (3m) or 30.123 (8) , general permit, certification, or contract under subchapter II of ch. 30 , Stats.

12. Issuance of an individual permit or general permit under s. 30.19 , Stats., including an individual permit permits to construct or alter waterways.

13. Issuance of an individual permit or general permit to change the course of or enclose a navigable stream under s. 30.195 or 30.196 , Stats.

14. Issuance of an individual permit , general permit , or contract under s. 30.20 , Stats., to remove material from the bed of a navigable waterway under ch. NR 345 , or for non-metallic mining and reclamation in and near navigable waters under ch. NR 340 .

  16. Issuance of a permit to construct, raise, enla r ge or abandon , order, or approval for water levels or flows, or for the regulation of a dam in navigable or nonnavigable waters under ch. 3 1 , Stats., or establishment of historic or a new level, a flow release or approval of a drawdown of a controlled lake or flowage under s. 31.02 , Stats and ch. NR 333 .

SECTION 2 6 . NR 150.20 (2) (a) 18. is renumbered NR 150.20 (2) (a) 3r. and amended to read:

  NR 150.20 (2) (a) 3r. An approval of a municipal wastewater facilities plan under s. NR 110.08 , and approvals of municipal wastewater projects receiving federal grants or state financial assistance under ss. 281.58 and 281.59 , Stats .

SECTION 2 7 . NR 150.20 (2) (a) 18m. is created to read:

  NR 150.20 (2) (a) 18m. Issuance of a report under s. 13.097 , Stats., that includes the required department findings under s. 13.097(4) , Stats., and conclusions under s. 13.097(6) , Stats., regarding whether legislation that proposes to convey lake bed or amend a prior conveyance of lake bed area is consistent with protecting and enhancing a public trust purpose.

SECTION 2 8 . NR 150.20 (2) (a) 19 . is renumbered NR 150.20 (2) (a) 3w. and amended to read:

  NR 150.20 (2) (a) 3w. Issuance , reissuance, revocation and reissuance, or modification of an individual WPDES permit for an a concentrated animal feeding operation under ch. NR 243 that is a new source .

SECTION 2 9 . NR 150.20 (2) (a) 19m., 20., 21., and 22 . are created to read:

NR 150.20 (2) (a) 19m. Review of existing or proposed uses for an existing lakebed grant, existing lease of the bed of a lake, or existing lease of rights to fill in a bed of a lake or a navigable stream to ensure the existing or proposed uses are consistent with the purposes and uses for which the grant or lease was issued.

2 0 . Issuance of an aquatic plant management permit under s. NR 107.05 that meets the criteria under s. NR 107.04 (3) .

2 1 . Approvals of aquatic plant management plans under s. NR 109.09 and lake management plans under s. NR 191.45 .

2 2 . Promulgation of permanent administrative rules under ch. 227 , Stats.

SECTION 30 . NR 150.20 ( 2 ) ( b ) is amended to read:

NR 150.20 ( 2 ) (b) The department may determine under s. NR 150.35 that there is equivalent analysis for a specific an action not listed in par. (a) does not require a separate environmental analysis process under this chapter becaus e it meets the definition of an integrated analysis action .

SECTION 3 1 . NR 150.20 (3) (a) (intro.) and 1. are amended to read:

NR 150.20 ( 3) PRIOR COMPLIANCE ACTIONS. (a) (intro.) The following actions require a WE P A compliance determination under s. NR 150.35 but do not require additional environmental analysis under this chapter because one or more environmental analysis documents exist for prior actions that are similar to the proposed action in kind, scale , and environmental setting:

1. Facility Department facility development planned under ch. NR 44 .

SECTION 3 2 . NR 150.20 (3) (a) 4. and 5. are repealed.

SECTION 3 3 . NR 150.20 (3) (a) 6. , 7. , and 8. are amended to read:

NR 150.20 ( 3) (a) 6. Approval of an extension of a wastewater collection system and other plan approvals under s. 281.41 , Stats., that is are covered under an area wide water quality management plan under s. 283.83 , Stats., and ch. NR 121 .

7. Issuance or , reissuance , revocation and reissuance , or modification of an individual WPDES permit under s. 283.31 , Stats., f o r a facility that is covered under an area wide water quality management plan under s. 283.83 , Stats., and ch. NR 121 .

NR 150.20(3)(a)8. 8. Issuance or reissuance of an individual or general storm water permit under ch. NR 216 and s. 283.33 , Stats. , and ch. NR 216 .

SECTION 3 4 . NR 150.20 (3) (a) 9. and 10. are created to read:

NR 150.20 ( 3) (a) 9. Reissuance or modification of any general permit.

10. The approval of a feasibility and plan of operation report and issuance of a license for a class 1 or class 2 modification of an existing hazardous waste treatment, storage, or disposal facility under s. 291.25 , Stats. , and ch. NR 670 .

SECTION 3 5 . NR 150.20 (4) (b) (intro.) is amended to read:

NR 150.20 ( 4) ( b) EIS projects. (intro.) The departmen t ma y decide to follo w th e EIS procedures in s. NR 150.30 for projects of such magnitude and complexity that one or more of the following apply :

SECTION 3 6 . NR 150.30 (1) (g) , (2) (b), and (3) (c) 3. and (d) are amended to read:

NR 150.30 (1) (g) Environmental Impact Report (EIR). Pursuant to s. 23.11 (5) , Stats., the department may require an applicant for certain proposed projects to submit an EIR. The department may request any applicant to submit an EIR. The purpose of an EIR is to help the department develop the EIS by having the applicant provide a detailed, comprehensive description of the proposed project, reasonable alternatives to the proposed project, the present environmental conditions in the area potentially affected by the proposed project, and anticipated environmental effects of the proposed project and alternatives. Predictive models, bioassays , and other analysis that can be subject to reasonable scientific verification may be required. The instructions to the applicant may also require that certain laboratory tests be performed by a laboratory certified, registered, or approved under ch. NR 149 .

(2) (b)   A description of the purpose and need of the proposed project.

( 3 ) (c) 3. If a hearing is held under par. (d), the The public comment period shall may be extended for a minimum of 7 days after the date the hearing is held pursuant to par. (d) .

(d) Hearing. If no public hearing is otherwise required on the proposed action, the department may hold one or more public hearings prior to making its WEPA compliance determination under s. NR 150.35 . Pursuant to s. 1.11(2)(d) , Stats., a public hearing shall be held on the draft EIS and proposed action. Holding a public hearing as required by another statute fulfills the hearing requirement. Any hearings hearing held pursuant to this chapter paragraph shall be publicly announced to the public and held noticed in a manner consistent with s. 1.11 (2) (d) , Stats .

SECTION 3 7 . NR 150.30 (3) (d) (Note) is created to read:

NR 150.30 (3) (d) (Note) NR 150.30 (3) (d) ( Note ) Pursuant to s. 1.11(2)(d) , Stats. , “notice of the hearing shall be given by publishing a class 1 notice, under ch. 985 , at least 15 days prior to the hearing in a newspaper covering the affected area. If the proposal has statewide significance, notice shall be published in the official state newspaper.”

SECTION 3 8 . NR 150.35 is amended to read:

NR 150.35 WEPA Compliance determination. (1) Actions under sections s. NR 150.20 (2) to (4) cannot may not be taken until a determinatio n i s published publicly announced or noticed regardin g complianc e wit h this chapte r unless statutory deadlines preclude compliance with the procedural requirements of this chapter . Actions under s. NR 150.20 (1m) are compliant with WEPA and do not require a determination prior to the action being taken .

(1m) For all EISs any EIS under s. NR 150.20 (4) and determinations determination under s. NR 150.20 (2) (b) and (3) (b) , the department shall publish publicly announce findings of fact, conclusions of law and a determination that summarizes the procedures and process steps used to achieve compliance with this chapter.

(2) For actions under s. NR 150.20 (2) (a) and (3) (a) , the department may publish publicly announce the WE P A determination as part of or provide notice in accordance with the public notification requirements for the proposed permit or approval document .

SECTION 3 9 . EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication of the affected Administrative Code Chapters in the Register .

SECTION 40 . BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin

Natural Resources Board on August 12, 2015.