Vol. 77, No. 9, September 2004

The 2003 Jobs Creation Act:
Changing Wisconsin's Regulatory Climate

Sidebars:

• Plan to Attend 16th Annual Environmental Law Update

by Robert Fassbender & Paul Kent

he Jobs Creation Act of 2003 (2003 Wis. Act 118) was signed into law by Gov. Doyle on Jan. 22, 2004 and became effective on Feb. 6, 2004. It has been called "the most significant reform of the state regulatory process in decades, perhaps ever."¹ The new law is sweeping, ambitious, and controversial. While the regulatory reform bills as introduced contained a broad range of business initiatives, ultimately the expansive legislation was trimmed to address air and water permitting and the procedures for developing administrative rules.

Rulemaking Procedures, Chapter 227

There is a maxim in the lobbying profession that while bad bills may be killed, bad rules can only be delayed. Since 1979, Wisconsin agencies have submitted more than 5,000 draft rules to the Legislative Council Rules Clearinghouse.² Over the past few years, the Department of Natural Resources (DNR) was far and away the top rule generator, drafting about 25 percent of the rules submitted by more than 20 state agencies and boards. A key objective of the Act is requiring agencies to justify the regulatory burdens associated with these mandates, particularly when they create costs that put Wisconsin businesses at a competitive disadvantage. The Act thus requires agencies to more thoroughly document the reasoning behind their regulatory proposals.

Chapter 227 of the Wisconsin Statutes sets forth the procedural requirements all agencies must follow when promulgating rules. Agencies are required to explain and support their regulatory initiatives at three stages in the rule-making process: 1) the scoping statement prior to initiating the rule- making process; 2) the record created for the formal public hearing and comment period; and 3) the final draft rule submitted for legislative review. Act 118 strengthens the agencies' obligations during each stage. Many of the new agency record requirements are patterned after the federal Administrative Procedures Act and related federal case law.

Scoping Statements. Chapter 227 prohibits any agency activity on a regulatory proposal until the agency head approves and the agency publishes a statement of the proposed rule's scope.³ This scoping statement provides elected officials, the regulatory community, and agency management with an important "heads-up" before agency staff commits to any particular regulatory scheme.

The Act does not change the basic information required in the scoping statement: the objective of the rule, relevant policies and policy alternatives, statutory authority, and the amount of time that state employees expect to spend on the rule. Instead, the Act adds the requirement for a "summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule."⁴ This provision is consistent with an overarching policy objective of the Act to avoid layering state regulatory programs over existing federal programs that address the same problem.

Draft Rules for Public Hearings. Chapter 227 requires an agency to prepare an analysis of each proposed rule.⁵ This analysis is included in the public hearing notice and forms the basis for public comments. Prior to the Act this analysis only needed to include a reference to relevant statutory authorities and a brief summary of the proposed rule. The Act substantially strengthens the draft rule analysis requirements by adding the following components:

• an explanation of the agency's authority to promulgate the proposed rule;
• a comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule;
• a comparison of similar rules in adjacent states;
• a summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen; and
• any documentation relating to reports required under other provisions in chapter 227, such as a small businesses analysis or economic impact report.

The rationale for these added components, as noted in the legislative drafting instructions, was that "an agency notice must be sufficient to fairly apprise interested parties of the issues involved, so that they may present responsive data or argument relating thereto."

Fiscal Estimate for Private Sector. Chapter 227 requires an agency to prepare, as part of the agency record that goes out for public hearing, a fiscal estimate of every proposed rule's impact on local and state government.⁶ The Act added that fiscal estimates are to include anticipated costs the private sector would incur complying with the rule, addressing a key concern by industry that agencies fail to properly assess or consider the economic implications of their proposals.

Final Draft Rule for Legislative Review. Chapter 227 sets forth detailed procedures relating to legislative review of proposed rules prior to final promulgation.⁷ After the public review and comment, the agency is to submit to the legislature the proposed rule in final draft form, which entails a report containing the agency's record to date, including the draft rule analysis and the fiscal estimate. The report also is to include a final draft rule analysis.⁸ The Act expands this analysis to include:

• a copy of any economic impact report and any related report prepared by the Department of Administration (DOA);
• a detailed statement explaining the proposed rule's "basis and purpose," and a statement how the proposed rule advances relevant statutory goals or purposes;
• a summary of public comments to the proposed rule and the agency's response to those comments, and an explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing; and
• any changes to the initial draft rule analysis or the fiscal estimate.

Economic Impact Reports. A new requirement under the Act provides for economic impact reports for rules proposed by the departments of Agriculture, Trade, and Consumer Protection (DATCP), Commerce, Natural Resources (DNR), Transportation (DOT), and Workforce Development (DWD).⁹ A municipality, five or more persons, or an association that represents a farm, labor, business, or professional group may petition the secretary of the DOA to direct one of the above five agencies to prepare an economic impact report. The secretary must direct the agency to prepare the report if the petition is timely, and if the proposed rule meets one of the following economic impact thresholds:

• The proposed rule would cost affected persons $20 million or more during each of the first five years after the rule's implementation; or
• The rule would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

The report is akin to a cost-benefit analysis, although there is no specific requirement that the benefits of the rule outweigh its costs. In addition, if the economic impact report is prepared, the DOA must prepare a report that verifies the agency's statutory authority and factual underpinnings for the rule.¹⁰ Notably, the agency may not advance the rule until the issues the DOA raises are adequately addressed.

Judicial Review of the Record. Chapter 227 directs that a court must declare a rule invalid if the court finds that the rule violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rulemaking procedures.¹¹ Other than that, the legislature provided the courts with little guidance for reviewing agency rules. Case law is clear, however, that courts must make a substantial inquiry into the agency record when reviewing rules. The Wisconsin Supreme Court has held that "the court must engage in a 'substantial inquiry' into the facts of record supporting the rule, one that is 'searching and careful.'"¹² The purpose of such inquiry is to assure the court "that the agency rule is based, not on emotion or intuition, but rather on reasonable and reliable evidence."¹³

Generally, the agency record that will undergo court scrutiny is the documentation required under chapter 227 that the Act considerably reinforced. Thus, in addition to helping the regulated community assess the agency reasoning, the Act should substantially increase agency accountability in the courts. The court in Liberty Homes concluded that "the imposition of these [prior] requirements manifests the intent of the legislature to increase agency accountability."¹⁴ Considering that the Act substantially increases these requirements, the courts likewise should increase their demands that agency records reflect reasoned decisions. Any agency that attempts to advance rules without adequately documenting such reasoned decision-making in the rulemaking record would appear to do so at its peril. The plausible result - fewer but better rules - may make these chapter 227 revisions the Act's primary legacy.

Contested Case Provisions. The Act contains several provisions relating to contested case hearings. One such provision requires the administrator of the Division of Hearings and Appeals to establish a system to ensure, to the extent practicable, that hearing examiners are assigned to different subjects on a rotating basis.¹⁵ Another provision allows hearing examiners to award costs relating to frivolous claims.¹⁶ Finally, the Act allows nonresident petitioners to proceed in the county in which the affected property is located, rather than in Dane County.¹⁷

Navigable Waters, Chapter 30

Chapter 30 of the Wisconsin Statutes requires permits for many activities in and near navigable waters, including the placement of structures such as piers, bridges, and culverts; the creation of ponds; dredging; and grading on the banks of navigable waters. Portions of this law date to the late 1800s when the Railroad Commission granted permits for bridges and dams on navigable waters. In 1965 this program was transferred to the DNR, in recognition of the fact that recreation and water quality factors had become the key issues in whether to grant such permits. The DNR now processes nearly 5,000 chapter 30 permits per year.¹⁸ In addition, unlike most other modern environmental programs that it oversees, the DNR had promulgated few administrative rules to implement this program. This omission was particularly problematic because the statutory standards for granting permits rested on general concepts of public interest. The absence of rules meant that the notice, accountability, and consistency provided by the rulemaking process was largely absent from this program. The large volume of permits combined with antiquated hearing procedures and few implementing regulations led to pressure for an updated and streamlined permitting process.

The challenge was to streamline the permitting process while protecting considerations required under the public trust doctrine. Those interests include navigation, recreation, fishing, swimming, natural scenic beauty, and the water quality and habitat necessary to allow those activities to occur.¹⁹ Finding the balance between an efficient permitting process and a process that protects the public trust interest is difficult to reach and almost inherently controversial.

Overview. The Act uses a three-tier system for activities within the DNR's chapter 30 jurisdiction: 1) exemptions for limited activities with minimal impacts; 2) general permits for routine activities governed by standard conditions; and 3) individual permits for the remaining activities. The three-tier permit system is modeled after other more recent permit programs and is intended to focus limited agency resources on projects that require individual attention. Prior law allowed "short form" permits.²⁰ These individual permits did not require public notice, and the conditions for granting them often were governed by internal guidance documents. Under the Act, short form permits are replaced by exemptions or general permits.

In addition to developing these categories as an organizing concept for chapter 30 activities, the Act provides for a new set of permit procedures and timetables for individual permits. The Act also contains several definition changes and clarifications including a redefinition of activities requiring grading permits. Finally, the Act encourages or requires the DNR to adopt rules, rather than rely on internal guidance documents.

Importantly, this law does not change other DNR water regulations. For example, shoreland zoning requirements are not changed,²¹ although those rules are currently under review as part of a separate DNR process. Act 118 also does not change wetland regulations, stormwater regulations, or other local zoning requirements.

In response to Act 118, the DNR promulgated 12 new chapters of emergency rules within three months. Final rules are expected to be in place before spring 2005. It is critical to consult those rules before undertaking any activity that could fall within chapter 30 jurisdiction.

Exemptions. While chapter 30 has always exempted certain activities from permit requirements,²² the Act establishes a more comprehensive list of exempt activities. The concept under the Act is that persons seeking to undertake minor activities with minimal impacts should not be required to obtain a permit and consume agency resources in the process. A summary of exempt activities is shown in Figure 1. However, important limitations on the use of these exemptions were included to ensure protection of public trust interests. First, only a defined set of activities is exempt. For example, the replacement of culverts is exempt but only if the culvert was previously permitted or is less than 24 inches in diameter. DNR rules define in more detail the scope of each exempt activity.

Second, the exemptions do not apply to areas of special natural resource interest. Areas of special natural resource interest are defined by statute to include outstanding or exceptional resource waters, trout streams, state natural areas, and areas of significant scientific value as designated by the DNR. The waters of scientific value are defined by rule and have been the subject of particular controversy during the emergency rule period.²³ All of the waters designated as areas of special natural resource interest are (or will be) listed on the DNR Web site.²⁴

Third, the DNR has adopted rules relating to installation procedures, construction and design requirements, and location of exempt activities. For example, replacement culverts are subject to 11 specific conditions.²⁵ One condition of particular note is that exempt piers, seasonal structures, culverts, and dredging cannot occur in areas with "public rights features."²⁶ Public rights features include fish and wildlife habitats, physical features that protect water quality, areas of natural appearance, and navigational thoroughfares. Eventually, these areas will be designated through a formal process including public hearings and Natural Resources Board approval. The emergency rule has an interim list (also on the DNR Web site), but leaves open the potential for applying the concept of public rights features to any waterway. As a practical matter, it is prudent to consult with the DNR before undertaking exempt activities subject to the public rights features condition.

Fourth, Act 118 sets forth various notification and "recapture" provisions. For exempt activities, a person is not required to notify the DNR before undertaking the activity but is encouraged to do so. If a person notifies the DNR, the DNR has 15 days to review the project. The DNR can then recapture the activity and require a general or an individual permit if it conducts a site inspection and determines that site specific conditions warrant additional restrictions on the activity to protect public interests. If the DNR does not object within 15 days, the person can proceed, and the DNR may not later require an individual or general permit. If a person does not notify the DNR, this safe harbor is lost and the DNR may later require a permit and impose additional conditions on the project.²⁷

General Permits. A general permit is a standard set of conditions that apply to certain routine activities. Typically, an application for a general permit must demonstrate that an activity is eligible for such a permit. If the activity is eligible, the applicant can proceed in accordance with those standard conditions without further review. Although the DNR previously had the authority to promulgate general permits to cover certain classes of chapter 30 activities, this provision was seldom used.²⁸ Act 118 requires that the DNR issue general permits for specified activities within specified time periods. The DNR also has the authority to issue additional general permits and it has already proposed several such permits in addition to those required by statute. Significantly, the standards for granting general permits must be issued by rule.²⁹ The availability of a significant number of general permits defined by rule is probably one of the most important chapter 30 reforms under the Act.

A listing of the required general permits is shown in Figure 2. Until general permits are in effect, a person seeking to undertake an activity listed in Figure 2 must use the individual permit procedures. However, general permits for most of these activities (and others) have been issued by emergency rule.

As with the exemptions, several important limitations exist. First, like the exemptions, only certain activities fall within the scope of the general permit. The exact scope of each general permit is defined by rule. Second, the general permit rules establish terms and conditions under which general permits can be used. The general permits prescribe construction and design requirements and location restrictions to protect public trust interests.

Third, the procedures for using general permits are significantly different from those for exemptions. For a general permit, notification to the DNR and consent to access is mandatory. The DNR has 30 days to review the request for coverage. Within that 30-day period, if the DNR conducts a site inspection and determines that site-specific conditions warrant additional restrictions on the activity to protect public interests, the DNR can recapture the activity and require an individual permit. If the DNR does not require an individual permit within that period, the applicant can then proceed with the activity.³⁰ Following completion of the activity, the applicant must certify that the general permit's terms and conditions were satisfied and provide to the DNR photographic documentation of the project's completion.

New Definition for Grading. The Act makes several changes concerning the scope of activities that require individual permits. The most significant change concerns grading permits. Under prior law, the DNR required a permit for grading more than 10,000 square feet on the bank of a navigable water. The term "bank" encompassed any point where water would drain without interruption into the body of water. This could be hundreds or even thousands of feet away from navigable water that might be no more significant than a roadside ditch. Under the new law, the term "bank" is limited to 75 feet from the ordinary high water mark or that point where the slope is less than 12 percent, whichever is greater. For priority navigable waters, the term "bank" is limited to 300 feet from the ordinary high water mark or that point where the slope is less than 10 percent.³¹ Priority navigable waters include those in designated areas of special natural resource interest, areas with public rights features, and lakes smaller than 50 acres.³² DNR rules detail how the new definitions will be applied.³³

For areas covered under the new definition of "bank," general permits are available. The terms of the general permit also are set forth by rule.³⁴ However, individual grading permits still may be required under shoreland zoning rules, local building codes, or state storm water regulations.

Individual Permits. No changes were made to the standards for granting individual permits. However, significant changes were made to the individual permit procedures. Under prior law, public notice was only required for a limited number of individual permits. If a hearing was requested, the only option available was a formal contested case hearing before the permit was issued.³⁵ This was a lengthy, expensive, and formal process.

Act 118 uses a process common to other individual permits issued by the DNR. Under the new law, time periods are specified for every step of the permitting process and public notice is required for all individual permits. After an application has been filed, the DNR has 30 days to determine the completeness of the application. The opportunity for a contested case hearing before issuance of the permit has been eliminated and replaced with the opportunity for a public informational hearing. When an application is complete, a public notice is required to allow for comment and the opportunity to request a public hearing. If a hearing is requested by any member of the public, a public notice of the hearing is issued. Public hearings must be held within 30 days from the notice.³⁶ The applicant can shorten this process by requesting a hearing when submitting the application. The DNR must issue a final decision within 30 days of the hearing or, if there is no hearing, within 30 days after the comment period.³⁷ This is a significant change from the existing law, because it provides for a DNR decision before the opportunity for a contested case hearing.

After a permit is issued, challenges may be made to the permit in two ways: 1) an administrative review in a contested case hearing; or 2) a petition for judicial review. Under the Act, the time frames for a contested case hearing are specified by statute. The hearing must be completed within 90 days after the matter is referred from the DNR to the Division of Hearings and Appeals unless the parties agree to an extension. The party seeking a hearing may request a stay of the permit pending completion of the hearing.³⁸ Judicial review procedures remain unchanged from prior law.

Bob Fassbender, Univ. San Diego 1983, is a lawyer/lobbyist with The Hamilton Consulting Group, a Madison-based government relations firm. He represented several organizations on 2003 Wis. Act 118, including Wisconsin Manufacturers & Commerce, and played a leading role in developing and negotiating provisions relating to the DNR's air program (ch. 285) and agency rulemaking procedures (ch. 227).

Paul Kent, U.W. 1981, is an attorney with the Madison law firm of Anderson & Kent S.C., where his practice focuses on water law and other environmental law issues for individuals, developers, and municipalities. He represented the Wisconsin Builders Association and others in developing and negotiating provisions of Act 118 relating to the DNR's water program (ch. 30) and in the subsequent development of DNR rules implementing the Act.

Air Quality Programs, Chapter 285

Act 118 clarifies and expands limitations on the DNR's rulemaking authority for certain air programs, such as those relating to air toxics and ozone. The uneasy truce reflected in the Act for these programs was intended to provide the DNR with continued authority to establish Wisconsin-specific standards in the absence of federal standards, in situations in which the DNR clearly established a need.

Air Toxics Program. At the time Act 118 was winding through the legislature, the DNR was advancing significant revisions to its air toxics rules.³⁹ In addition to other sweeping changes, many of them supported by industry, the DNR proposed adding 144 new substances which would increase to 577 the number of hazardous air contaminants regulated in Wisconsin. (The federal air toxics program regulates 188 substances.) In addition, the DNR was proposing to regulate emissions of mercury, also considered a hazardous air contaminant under Wisconsin law and the subject of a pending federal rule. The DNR's authority for both rules was section 285.27(2)(b) of the Wisconsin Statutes, which provides that in the absence of a federal standard, "the department may promulgate an emission standard for the hazardous air contaminant if the department finds the standard is needed to provide adequate protection for public health and welfare."

Some industry representatives successfully argued that the legislature should provide specific factors to be considered by the DNR when expanding the state's air toxics program beyond the federal code. The Act left untouched the underlying requirement that a finding of need be made but added provisions requiring that such a finding be supported by a detailed and substance-specific health risk assessment.⁴⁰ This assessment must show that members of population groups are or will be subjected to levels of the hazardous air contaminant that exceed recognized environmental health standards. In addition, the DNR must evaluate its regulatory options by considering risks, costs, economic impacts, feasibility, energy, safety, and other relevant factors, and include a finding that the chosen compliance alternative reduces risks in the most cost-effective manner practicable.

Although the pending air toxics and mercury proposals weighed heavily in the underlying policy discussions, the new requirements for a health risk assessment were prospective only, making them inapplicable to either pending rule. However, the new requirements may make it exceedingly difficult for the DNR to add substances en masse to its air toxics program.

If a federal hazardous air standard did exist, prior law required the DNR to promulgate a "similar" standard, which "may not be more restrictive in terms of emission limitations than the federal standard."⁴¹ In recognition that emission limitations are only one, albeit an important, component of an air regulation, the Act added a requirement that the DNR also promulgate "administrative" requirements that are consistent with those found in the federal program.

The Act also contains a provision that exempts from the state program any hazardous air contaminant that is controlled as a result of a federal standard, even if the contaminant is not directly targeted by the federal rule.⁴² For example, if the federal standard controls federal substance XYZ for a source, but such regulation also necessarily controls Wisconsin substance ABC from the same source, then ABC is not to be regulated under the state program for that source.

Ambient Air Quality Standards. As with hazardous air contaminants, the DNR is provided authority to promulgate an ambient air quality standard if a federal standard is absent and if the DNR finds that a state standard is needed to protect public health or welfare. Existing federal air quality standards include those for ozone and particulate matter. Under the Act, provisions similar to those for hazardous air contaminants require the DNR to develop a health risk assessment to support such a finding.⁴³ Although the DNR has not yet exercised its authority to develop a state ambient air quality standard, environmental groups recently petitioned to have the DNR develop such a standard for carbon dioxide, a greenhouse gas. (That petition was rejected by the Natural Resources Board.)

Ozone Nonattainment Designation and Related State Plans. Since passage of the Clean Air Act Amendments of 1990, the DNR's development of ozone state implementation plans (SIPs) has been one of the most controversial environmental policy events in Wisconsin. A SIP is a plan required by the Clean Air Act that sets forth how the state will bring areas not meeting national air quality standards into "attainment." A related issue is how the state makes its recommendations to the Environmental Protection Agency (EPA) as to which areas are to be designated nonattainment areas. These issues also were debated when developing Act 118 in light of pending developments, namely, the EPA's designation of Wisconsin nonattainment areas for the new eight-hour ozone standard. (These final designations were made on April 15, 2004.)

The ozone nonattainment area recommendations and proposals provided by the state to the EPA result in substantial additional regulatory requirements and related economic development disincentives for southeast Wisconsin ozone nonattainment areas. While scores of regulatory requirements follow these DNR actions, neither the recommendation for nonattainment areas nor a SIP is considered a rule that would trigger the legislative and public review and comment requirements found in chapter 227.

Rather than merely defining these regulatory actions as rules, which would subject them to the full chapter 227 requirements, the Act sets forth more streamlined "light-of-day" requirements. For example, the DNR must submit its nonattainment designation recommendations and draft SIPs, along with related documents, to the legislature 60 days before they are due to the EPA, and the DNR must then respond to any legislative comments. The DNR also must provide a public notice that these documents are available for public review.⁴⁴

The Act also clarifies that Wisconsin may recommend ozone nonattainment designation only for a county that violates the federal standard, unless otherwise required by the Clean Air Act.⁴⁵ Previously, the law required an "area" to be in violation of the standard, allowing the DNR to recently propose coupling counties meeting the standard with counties violating the standard, to form a broad "area" in violation.

Air Permit Streamlining

The primary economic development aspect of the air permit program arises out of the requirement that a party obtain a construction permit before beginning a project that may result in air emissions. This so-called "construction ban" generally prohibits starting any construction or installation activities, including preparatory work such as grading, until the permit is in hand.⁴⁶ Thus, the inability to obtain a construction permit in a timely manner can delay or kill a project. The need to craft measures to allow for timelier issuance of air permits was the one aspect of the Act that was not controversial. Under the Act, the DNR must continually assess air permit obligations and must implement measures "to allow for timely installation and operation of equipment and processes and the pursuit of related economic activity by lessening those obligations."⁴⁷

One of the basic precepts of the Act's air permit provisions is that all air emission sources should not be treated as equal. Under the existing permitting program, simple or low emission sources generally were required to navigate the same complicated permitting process as was required for complex or high emission sources. The Act provides for exemptions or a streamlined permit process, like those created under chapter 30, for certain air sources as the primary means to avoid the built-in delays associated with negotiated permits. Initially, these tools may best be used for sources with lower emission levels that do not trip federal emission thresholds. These sources generally are insignificant overall contributors of air emissions, and as such, are not subject to the more rigorous Clean Air Act permit requirements.

Permit Exemptions and Waivers. The Act requires the DNR to exempt minor sources from the requirement to obtain permits "if the emissions from the sources do not present a significant hazard to public health, safety, or welfare or to the environment."⁴⁸ The Act allows parties to petition the DNR to develop specific exemptions. (A permit exemption by itself does not affect a source's obligation to meet any applicable emission standard.) Also under the Act, the DNR must promulgate rules for waivers that allow construction to begin before a construction permit is issued, if the applicant shows undue hardship.⁴⁹ Undue hardship may include weather or economic hardship.

Registration and General Permits (15-day Permits). The Act also provides for two types of streamlined air permits - registration and general permits. Registration permits are simple permits for sources of low emissions.⁵⁰ For example, a registration permit may be appropriate for small, natural gas-fired boilers that would include minimal permit conditions. Under the Act, general permits are to be developed for categories of similar sources.⁵¹ General permits may contain more extensive permit terms and conditions than contemplated for registration permits, but since they would apply to numerous sources with similar characteristics, one prior negotiated permit would be appropriate.

The key attribute for both registration and general permits is that the terms and conditions will already be set by the DNR either by rule or in a permit. That is, rather than undergoing a source-specific negotiation over the terms and conditions, the applicant merely requests the DNR to make an "applicability" determination for these off-the-shelf permits. Moreover, the DNR must make such a determination within 15 days of the applicant's request. As with exemptions, parties may petition the DNR to develop registration or general permits.

Source-specific Permits. It will take some time for the DNR to develop and implement these new streamlining mechanisms. In the interim, businesses will have to work with the DNR to develop source-specific permits. The Act contains provisions, however, that should make the negotiated permit process faster.

• Statutory Deadlines. The Act shortens by 30 days the deadline for the DNR to initially act on a major source construction permit application.
• Permit "Completeness Determinations." Under the Act, if the DNR fails to make certain completeness determinations by set deadlines, the application is deemed complete, starting the statutory deadline clock.
• Agency Accountability. The Act requires the DNR to report to the legislature and the public (via "prominent notice" on the DNR Web site) causes and remedies for any missed statutory deadlines. In addition, the DNR is to refund permit application fees if deadlines are missed.
• Monitoring Requirements. The Act allows permit applicants to appeal proposed monitoring requirements to the DNR's Air and Waste Division administrator, and if not satisfied, to the DNR secretary.⁵² A factor relevant to such an appeal includes a comparison to monitoring requirements imposed on similar sources.
• Challenging Part of a Permit. The Act allows permit applicants to challenge part of a permit while unrelated provisions and the underlying permit become effective.⁵³ This allows the applicant to begin construction pending resolution of the disputed provision. However, the permit will be held in abeyance if the challenged provision relates to an emission limitation. Federal law may preclude applying this provision to certain major source permits.
• The clear message from the legislature and the governor's office, embodied in Act 118 directives, is that the DNR must make timely issuance of air permits a top priority. Preliminary indications are that the DNR has heard these assorted messages loud and clear. The changing priorities within the DNR are, in part, reflected in the DNR Air Bureau's restructuring that was effective in October 2003.

Conclusion

The Jobs Creation Act has two primary focuses. First, it requires agencies to provide more detailed justification for their regulatory proposals. All agencies must comply with the new rulemaking procedures under chapter 227. The DNR in particular must now administer its water program under defined rules and must clear higher hurdles when establishing certain state air programs that exceed federal standards. Second, the Act provides directives and tools for the DNR to provide more timely approvals of certain navigable waters and air permits. Together - reducing unjustified regulatory burdens and accelerating permit approvals - these changes should help Wisconsin businesses fulfill the Act's intended goal of creating more jobs while still protecting air and water resources.

Endnotes

¹Milw. J. Sentinel, Jan. 17, 2004.

²2003 Annual Report Legislative Council Rules Clearinghouse (Feb. 2004), Wis. Legis. Council.

³Wis. Stat. § 227.135.

⁴Wis. Stat. § 227.135(1)(f).

⁵Wis. Stat. § 227.14(2).

⁶Wis. Stat. § 227.14(4).

⁷Wis. Stat. § 227.19.

⁸Wis. Stat. § 227.19(3).

⁹Wis. Stat. § 227.137.

¹⁰Wis. Stat. § 227.138.

¹¹Wis. Stat. § 227.40(4)(a).

¹²Liberty Homes Inc. v. DIHLR, 136 Wis. 2d 368, 386, 401 N.W.2d 805 (1987).

¹³Id. at 386-87.

¹⁴Id. at 388.

¹⁵Wis. Stat. § 227.43(lg).

¹⁶Wis. Stat. § 227.483.

¹⁷Wis. Stat. § 227.53(1)(a)3.

¹⁸See "In Water We Trust," 2002 Annual Report, Administrative Report No. 65 (2003).

¹⁹The public trust doctrine is found in the Wisconsin Constitution, art. IX, §1. For additional discussion, see J. Quick, The Public Trust Doctrine in Wisconsin, 1 Wis. Envtl. L.J. 105 (1994).

²⁰See, e.g., Wis. Stat. §§ 30.12(3), 30.123(3), 30.19(1)(a), 30.195 (2001-02).

²¹Wis. Admin. Code ch. NR 115.

²²See, e.g., Wis. Stat. § 30.19(1m) (2001-02).

²³Wis. Admin. Code § NR 1.05.

²⁴Wis. Admin Code § NR 1.05(5).

²⁵Wis. Admin. Code § NR 320.08.

²⁶Wis. Admin. Code § NR 1.06.

²⁷Wis. Admin. Code ch. NR 310, subch. II.

²⁸Wis. Stat. § 30.206 (2001-02).

²⁹Wis. Stat. § 30.206(1) (as amended by Act 118).

³⁰Wis. Admin. Code ch. NR 310, subch. III.

³¹Wis. Stat. § 30.19(1b)(b).

³²Wis. Admin. Code § NR 1.07.

³³Wis. Admin. Code ch. NR 341.

³⁴Id.

³⁵Wis. Stat. § 30.02 (2001-02).

³⁶Wis. Stat. § 30.208; Wis. Admin. Code §§ NR 310.15, 310.16.

³⁷Wis. Stat. § 30.208; Wis. Admin. Code § NR 310.17.

³⁸Wis. Stat. § 30.209; Wis. Admin. Code § NR 310.18.

³⁹Wis. Admin. Code chapter NR 445.

⁴⁰Wis. Stat. § 285.27(2)(b).

⁴¹Wis. Stat. § 285.27(2)(a).

⁴²Wis. Stat. § 285.27(2)(d).

⁴³Wis. Stat. § 285.21(1)(b).

⁴⁴Wis. Stat. § 285.23(6).

⁴⁵Wis. Stat. § 285.23(1).

⁴⁶Wis. Stat. § 285.60.

⁴⁷Wis. Stat. § 285.60(10).

⁴⁸Wis. Stat. § 285.60(6)(b).

⁴⁹Wis. Stat. § 285.60(5m).

⁵⁰Wis. Stat. § 285.60(2g).

⁵¹Wis. Stat. § 285.60(3).

⁵²Wis. Stat. § 285.17(2)(b).

⁵³Wis. Stat. § 285.81(1m).

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