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  • Wisconsin Lawyer
    August
    01
    2012

    New Law Eases Requirements: Navigable Waterway Permits

    Elizabeth A. Wheeler

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    2011 Wisconsin Act 167 changes the DNR’s permitting authority and requirements for navigable waterway permits. Effective Sept. 1, 2012, the new law eases requirements for private entities seeking to fill navigable waterways by shortening timelines, removing public participation requirements, and creating presumptive approvals. The changes have significant implications for the state’s administration of the public trust doctrine.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 8, August 2012

     

    WaterwayAmid a surge of activity on environmental bills during the 2011-12 legislative session, a bill that makes changes to the Wisconsin Department of Natural Resources' (DNR) permitting authority for navigable waterway permits was passed and signed into law at the last minute with little fanfare. The bill, 2011 Wisconsin Act 167, contains several provisions that significantly alter the DNR's permitting requirements. The changes, effective Sept. 1, 2012, will shorten timelines for approval, reduce the DNR's ability to collect information about specific projects, increase the use of general permits, and create presumptive approval for chapter 30 permits.

    Chapter 30 Requirements

    The waters of Wisconsin are a protected resource, held in trust by the legislature for the benefit of the public.1 The DNR is responsible for ensuring that the waters of the state are maintained in the public interest and are not degraded for private interests or benefit. The public trust doctrine is a longstanding legal doctrine in Wisconsin and is consistently reinforced by the courts.2

    In Wisconsin, before one can legally place a structure or dredge in a lake or river, one must obtain a permit issued by the DNR under Wis. Stat. chapter 30.3 These permits are an important manifestation of the public trust doctrine. Chapter 30 also contains specific restrictions on the size and type of structures that can be placed in navigable waters. Act 167 makes significant changes to chapter 30, including changing the rules governing pier regulations, shortening timelines for the DNR to make chapter 30 permit decisions, expanding the general permit program for navigable-waters permits, and creating presumptive approval for chapter 30 individual permits.

    The most common types of chapter 30 permits are those issued to individuals seeking to build piers, wharves, or other structures on waterfront property they own. However, many other types of activities fall under chapter 30 permitting. Some examples include erecting temporary or permanent waterway crossings for construction sites and new developments, placing offshore wind turbines, and dredging for sand-mine sites. The changes that Act 167 makes to the permitting process in chapter 30 will lessen environmental review for all these types of projects.

    Pier Regulations

    One major target of Act 167 is chapter 30's regulations concerning piers. Under regulations that took effect in 2004, owners of piers built before 2004 were required to register a pier or wharf in order to be "grandfathered" in to the regulations.4 Piers erected in or after 2004 or that were not properly registered were required to conform to certain specifications – the pier or wharf had to be no more than 6 feet wide, extend no further than where the water was 3 feet deep, and have a limited number of boat slips, depending on how much shoreline the property owner had.5 Larger structures could be built, but they required individual permits.6

    Act 167 changes the pier rules to grandfather in all piers constructed before April 2012, unless the DNR has previously stated that the pier or wharf is detrimental to the public interest, or if the pier or wharf interferes with the riparian rights of other riparian owners.7 The practical effect of this change to pier regulations is that, even if a pier or wharf was built between 2004 and April 2012 in violation of the previous law, it will be grandfathered in to the revised regulations unless it has been determined to violate the public interest or rights of other riparian property owners. The new law also contains modified specifications for piers' size, area, and length.8

    Shorter Timelines for DNR Chapter 30 Permit Decisions

    The new law establishes a 60-day time limit (previously 105 days)9 within which the DNR must approve or deny a permit.10 This 60-day time limit may be extended up to 95 days if a public hearing is held, under the revised statutory language (previously 150 days).11 However, the new law also removes common-sense extensions to the default timeline. Prior law allowed the DNR to extend the timeline to accommodate additional information gathering, environmental assessments, or adverse weather conditions. Some examples of conditions for which extensions no longer are allowed include the following:

    • the time needed to prepare an environmental impact statement required under the Wisconsin Environmental Policy Act (WEPA);12
    • the time it took for an applicant to respond to additional information requests made by the DNR; and
    • the time between November 1 – April 1 for applications received after October 1, which require a field investigation.13

    MORE INFORMATION – FROM PINNACLE®

    Programs Help You Stay Ahead of Changes in Environmental Law

    Join your colleagues at the Annual Environmental Law Update on Sept. 13 and find out more about what has happened in the environmental law arena this year. Get updates on: Air, Water (surface and ground), Litigation (includes PCB remediation on Fox River), Ethics, the Environmental Protection Agency. The State Bar Environmental Law Section will also present two mock real estate development project scenarios, in which you’ll walk through all of the various environmental and land use issues you and your client should consider prior to construction of a new facility. The Annual Environmental Law Update is the best place to go for coverage on federal developments and hot-button issues for water, air, and land contamination – all in one succinct program. 

    The live webcast of "Annual Environmental Law Update" will be Sept. 13, 2012. Tuition is $249 (member) and $279 (nonmember); 7.5 CLE credits, 1.0 EPR credits. For other dates and formats and to register, please call Customer Service at (800) 728-7788 and mention program CA1836W.

    Join author Elizabeth Wheeler for a webcast update on Chapter 30 Navigable Waterway Permitting After Act 167, Monday, Sept. 24, 2012, from 12 – 1 p.m. Tuition is $79 (member) and $99 (nonmember); 1.0 CLE credit, 0 EPR credits. Please call Customer Service at (800) 728-7788 to register for program CA1855W

    Allowing the approval timeline to toll during these periods gave the DNR flexibility to verify information provided by an applicant, conduct necessary studies or fieldwork, and ensure that applications complied with the requisite legal requirements of the WEPA or chapter 30.

    The new law also limits the DNR's ability to request from an applicant additional information that may be necessary to process a permit. The DNR is now limited to making one request for additional information.14

    The impact of shortening timelines for chapter 30 permit approval is yet to be seen, but it could have the opposite of its intended effect, because there may be many challenges to permits that are issued hastily or without complete information. Pressure to issue or deny permits within the shortened period, because of presumptive approvals (discussed below), may also result in more permit denials.

    General Permits versus Individual Permits

    The DNR issues two types of permits under chapter 30: general permits and individual permits. General permits are statewide permits that cover certain categories of activities. These permits generally cover a type or scale of activity that has been determined to have a minimal impact on the environment and therefore does not require individual review. Some examples of activities to which general permits apply are the following:15

    • Placing a layer of sand or similar material on the bed of a lake adjacent to the owner's property to improve recreational use;
    • Repairing or replacing existing riprap;
    • Building a boat landing adjacent to an owner's property;
    • Building a permanent boat shelter adjacent to an owner's property; and
    • Building a pier or wharf.

    To engage in an activity that is covered by a general permit, one must submit an application to the DNR for coverage under the permit. Applications for coverage under a general permit are not subject to the same notice and hearing provisions as individual permits. If the DNR does not inform the applicant within 30 days that additional information is needed or an individual permit will be required, coverage is presumed to be granted, and the applicant may proceed with the activity.

    Under previous law, the DNR had very little discretion in creating general permits. Wisconsin Statutes section 30.206 set forth specific activities that fell under general permits but did not confer any discretionary authority on the DNR to create new categories of general permits. Furthermore, all general permits were subject to the rulemaking process to ensure that the permits met the legislative intent set forth in creating them.

    Act 167 drastically expands the general permitting authority of the DNR under chapter 30. First, it authorizes the DNR to "issue a general permit authorizing an activity for which an individual permit is issued, or a contract is entered into, under [chapter 30]."16 In addition, general permits are no longer subject to the rulemaking process. Instead, the appropriate Senate and Assembly committees are authorized to suspend and repeal permits through the legislative process.17 This provides a retrospective check on the DNR's authority but does not provide the same type of thorough vetting that these permits of statewide effect previously received. With the enactment of 2011 Wisconsin Act 21, rulemaking in Wisconsin has become much more burdensome for agencies, making it impractical to create general permits through a rulemaking process. However, the combination of drastic expansion in the DNR's authority for creating new general permits and the loss of legislative oversight over new general permits could result in an unintended overuse of general permitting, resulting in less opportunity for individuals to provide input on projects that may affect them and less individual review of environmental impacts for projects across the board.

    Presumptive Approvals for Chapter 30 Permits

    Act 167 also created presumptive approval for all chapter 30 permits. If the DNR has not approved or denied a permit within the 60- or 95-day timeline, the permit is considered approved.

    Elizabeth A. WheelerElizabeth A. Wheeler, Pace 2006, represents Clean Wisconsin in administrative and environmental law proceedings, and provides legislative analysis and legal advice on policy issues. Before becoming the staff attorney, she coordinated a network of more than 120 organizations that work on climate change issues in the Midwest.

    She previously interned with the New York Department of Environmental Conservation's wetland division, the Blacksmith Institute (working on international environmental justice), and the Wisconsin Department of Justice environmental protection unit. Contact her at ewheeler@cleanwisconsin.org.

    Presumptive approvals, especially when coupled with shortened timelines and increased use of general permits, significantly hinder the DNR's ability to adequately evaluate whether a project can meet statutory requirements. In addition, it is much more difficult to challenge permits and avoid liability damages in a presumptive-approval process, because a permittee may commence work on a project immediately after the timeline has expired. There is also an interesting logistical challenge with the presumptive approval process provided in Act 167: the DNR can still impose conditions on a permit even if it has already gone into effect via the process. This means that a permittee may not be aware of permit conditions when beginning work on a project. Presumptive approvals could also backfire on applicants. The DNR may deny permits that it previously might have issued had there been a little more time for negotiation between the applicant and the agency. This effect of presumptive approvals could be amplified by the shortened timelines and limited ability for the DNR to gather information also provided by this bill.

    Effect of Easing DNR Oversight of Permitted Activities

    Limiting DNR authority to collect information, shortening timelines for DNR decisions, imposing presumptive approvals, and moving toward increased use of general rather than individual permits are common themes that appeared in other environmental legislation during the 2011-12 legislative session, namely bills to change wetland laws and mining regulations. In isolation, the chapter 30 changes may not significantly alter the way that the DNR does business, but as a trend, these provisions represent a significant break from past practices that have encouraged information gathering and transparent, science-based decision-making. It remains to be seen whether these changes will bring about simplified, more efficient processing of chapter 30 permits, or if they will complicate matters by restricting the DNR's authority to ensure adequate environmental review and protections when processing permits.

    Endnotes

    1 Wis. Const. art. IX, § 1; Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73.

    2 See, e.g., Lake Beulah Mgmt. Dist., 2011 WI 54, ¶¶ 31-35, 335 Wis. 2d 47.

    3 Wis. Stat. § 30.12.

    4 Wis. Stat. § 30.12(1k) (2009).

    5 Wis. Stat. § 30.12(1g)(f) (2009).

    6 Wis. Stat. § 30.12(1) (2009).

    7 Wis. Stat. § 30.12(1k)(b) (as amended by 2011 Wis. Act 167, § 9m).

    8 The revised specifications allow for a loading platform that has an area up to 200 square feet and removes the requirement that the loading platform be located at the end of the pier. Wis. Stat. § 30.12(1g)(f) (2012) (as amended by 2011 Wis. Act 167, § 6).

    9 Wis. Admin. Code § NR 300.04(4)(e).

    10 Wis. Stat. § 30.208(3)(e), (4)(a) (as amended by 2011 Wis. Act 167, § 60).

    11 Wis. Stat. § 30.208(3)(e) (as amended by 2011 Wis. Act 167, § 60).

    12 Wis. Stat. § 1.11.

    13 See Wis. Admin. Code § NR 300.05.

    14 Wis. Stat. § 30.208(2)(b) (as amended by 2011 Wis. Act 167, § 55).

    15 Wis. Stat. § 30.26 (1), (1g) (2009).

    16 Wis. Stat. § 30.206(1)(am) (as amended by 2011 Wis. Act 167, § 42).

    17 Wis. Stat. § 30.206(5m) (as created by 2011 Wis. Act 167, § 50).




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