September 4, 2014Client Alert

Emergency Rule Clarifies WDNR Environmental Review Procedure

Emergency Rule Clarifies WDNR Environmental Review Procedure

On August 31, 2014, the Wisconsin Department of Natural Resources (WDNR or Department) published an emergency rule to clarify the environmental review procedures in Wis. Admin. Code ch. NR 150. Chapter NR 150 establishes the procedures WDNR follows to comply with the Wisconsin Environmental Policy Act (WEPA), set forth in Wis. Stat. § 1.11, which requires each state agency to implement an environmental review process, such as an Environmental Impact Statement (EIS), to evaluate potential impacts of agency decisions.

Why You Should Care

The proposed emergency rule clarifies the level of environmental review required for a handful of common tasks at WDNR, such as issuing minor source air construction permits, approval and modification of nutrient management plans for WPDES-regulated farms, and approval of plans and specifications for various facilities. If your business is regulated by WDNR, or requires a permit or other determination to be issued by WDNR, the emergency rule may provide guidance as to the level of environmental review that will be required prior to WDNR issuing a permit or determination. Knowing the required level of environmental review can help businesses more accurately plan the timing and cost of a given project.

What Is An Emergency Rule?

Normally, state agencies may only make administrative rules through a process that involves a notice, hearing, legislative review, and publication. Emergency rules are different in that no notice, hearing, or legislative review is required before the rule goes into effect. Instead, emergency rules are subject to notice and public hearing after they are adopted as rules.

The emergency rule process is used if the “preservation of the public peace, health, safety, or welfare necessitates placing a rule into effect” before the agency could adopt the rule through standard rulemaking procedures. To become effective, an emergency rule must be proposed by an administrative agency and signed by the governor. The governor must also approve, in writing, the stated emergency situation that warrants an emergency rule. Once signed by the governor, an emergency rule goes into effect when it is published in the state newspaper and it stays in effect for 150 days. In this case, WDNR has stated it will use the 150-day emergency rule period to begin the standard rulemaking procedure to create a permanent rule. A public hearing must be held within 45 days of the adoption of the emergency rule.

Chapter NR 150

Chapter NR 150 was recently revised in its entirety, and the revised version became effective on April 1, 2014. Currently, NR 150 creates four categories of Departmental actions that warrant varying levels of environmental review. The four categories of actions are:

1.    Minor actions – would not require environmental analysis because there would be no potential for environmental impact (e.g., pursuit or settlement of WDNR enforcement actions);

2.    Equivalent analysis actions – would not require additional environmental analysis under NR 150 because WDNR has already established environmental review elsewhere in the decision-making process (e.g., individual wetland permits);

3.    Prior compliance actions – would not require additional environmental analysis for the project at hand because environmental analysis has been performed on a similar proposal (e.g., reissuance of a WPDES permit); and

4.    EIS actions – either would not fall into the other categories or the project would involve multiple Department actions such that a cumulative impact to the environment may result that would be undetectable by piecemeal environmental review.  EIS actions would require an EIS that would be scaled to the project.

Chapter NR 150 lists some examples of WDNR actions that fall within each category. However, the April 1, 2014 rule did not specifically reference a number of very common agency actions, so neither the agency nor the regulated community could be sure which category certain common actions fell within. As a result, the regulated community could not accurately plan the time or cost horizon for what should be fairly straightforward approvals.

Emergency Rule Changes to Chapter NR 150

Generally, the emergency rule makes three changes to NR 150 that directly affect the interests of businesses that are regulated by WDNR.

First, the emergency rule expands the existing list of “minor actions” that do not require an environmental analysis under NR 150. The expansion of the list provides clarity for businesses that require routine approvals from WDNR for the stated actions. A few notable additions to the list are:  approvals and modifications of nutrient management plans and new land application sites, approvals of plans and specifications for industrial facilities as well as CAFOs, and the issuance of minor source construction permits.

Second, the proposed emergency rule provides more specific examples of actions that meet the requirements of an equivalency analysis under WEPA and therefore do not require further environmental review. For these examples, WDNR has determined its review process incorporates sufficient environmental review so no further WEPA review, such as an EIS, is necessary. The following are a few actions that meet the equivalency analysis according to the emergency rule:  issuance of liability clarification letters, approval of a variance to a water quality standard, and development of total maximum daily loads.

Finally, the emergency rule clarifies that, in cases where an equivalent analysis action or a prior compliance action is not specifically listed in NR 150, a WEPA compliance determination is not required when a separate statutory deadline precludes compliance with WEPA procedure. The pre-2014 NR 150 contained a similar limitation on WEPA requirements when separate statutory deadlines precluded procedural compliance. The addition of this language in the emergency rule, found at NR 150.35, clarifies ambiguities that arose when the new NR 150 took effect on April 1, 2014.

Together, these changes clarify the environmental review process for businesses that are regulated by WDNR. The emergency rule includes other changes to NR 150 that impact internal WDNR procedure but not businesses that are regulated by the Department. More information on those changes is available in the referenced link below.

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