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Analysis of Senate Substitute Amendment 1 to 2011 Senate Bill 326

(formerly Special Session SB/AB 24)By Toni Herkert, Policy Director

As with Special Session SB/AB 24, Senate Bill 326 and the substitute amendment relate primarily to

regulations affecting navigable waters including changes to the water body itself, the construction orplacement of structures in or adjacent to a navigable water, withdrawals of water from the water body

and navigability. The bill also includes provisions relating to various environmental protection

programs.

SB 326, originally introduced into the regular legislative session due to the adjournment of the

Governors special session, was exactly the same as Special Session Senate Bill 24. Based on hearingcomments and contacts from the public, however, the authors quickly introduced a substitute

amendment which makes significant positive changes to the original bill. The substitute amendment:

Allows the DNR to deny an application for an individual permit on the basis that it isincomplete.

Removes the allowance that a riparian owner could place fill or a structure on a portion of a bedof a navigable water within an established bulkhead line without obtaining a permit or approval

from the DNR. Eliminates the bills original exemptions for the removal of material from lake beds and the

removal of plant or animal deposits from a stream, inland lake or outlying water. Eliminates automatic approval of high capacity well permits, metallic mineral prospecting

permits and oil or gas production licenses.

Requires the DNR to give notice on its Internet website AND publish the notice as a Class 1notice under ch. 985, Stats.

Even with these improvements Wisconsin Lakes must still stand in strong opposition of the bill.

Wisconsins lakes and rivers are public resources, owned in common by all Wisconsin citizens underthe state's Public Trust Doctrine. Based on the state constitution, this doctrine has been further defined

by case law and statute. It declares that all navigable waters are "common highways and forever free",

and held in trust by the Department of Natural Resources for all citizens of the state. Wisconsin lawrecognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights related to

the water next to their property.

Wisconsin Lakes is a statewide nonprofit organization with over 1,000 members and contributors including individuals,

businesses, and lake associations or districts representing more than 80,000 citizens. For over 20 years, Wisconsin Lakes

has been a powerful bipartisan advocate for the conservation, protection and restoration of Wisconsin's lake resources.

WISCONSIN LAKESWe Speak For Lakes!

4513 Vernon Blvd., Suite 101, Madison WI 53705608.661.4313 ~ 608.661.4314 fax

[email protected]


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These riparian rights include the use of the shoreline, reasonable use of the water, and a right to accessthe water. However, the Wisconsin State Supreme Court has ruled that when conflicts occur between

the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's

secondary(*). Several of the provisions remaining in SB 326 put the rights of permit applicants andtheir requests to modify a navigable water above the publics rights. Wisconsin Lakes believes this is

the wrong way to do business in Wisconsin.

Senate Substitute Amendment 1 to Senate Bill 326

Provisions within SB 326 relate to the types of permits allowed under Chapter 30 of the state statutes.

In general, subchapter II of Ch. 30, Wis. Stats. relates to navigable waters and navigation. DNR issuestwo types of permits under these statutes General permits and Individual permits. General permits

should be viewed as umbrella criteria that many projects fit underneath. An actual permit is not

issued for these activities, but instead the department verifies that projects fit within the criteria for the

general permit. General permit activities are deemed by administrative rule appropriate to receive lessscrutiny, less review, or may have less impact on navigable waters. Individual permits are issued for a

specific activity in a specific area that has a greater degree of complexity, required analysis andpotential impacts.

Wisconsin Lakes strongly objects to the following provision of SB 326:

Turning Individual Permits to General Permits

The substitute amendment establishes new procedures for issuing general permits and no longerrequires this to be done through the standard administrative rule making procedure. As a result, there

will be less stringent review on the creation of general permits and any activity that is currently treated

as an individual permit could be a candidate for a new general permit category. The amended billcontinues to require DNR to provide notice of its intent to issue a new general permit and allow a 30

day comment period, but the department does not have to hold a public hearing, even if requested,

unless it finds that there is significant public interest in holding the public hearing.

While Wisconsin Lakes understands the time commitment and expenditure of staff resources in issuing

general permits through the rule making process, we believe there needs to be a level of review beyond

the Governor appointed department Secretary to ensure that the new general permit category is a need

across the state. Wisconsin Lakes proposes requiring approval by the the Natural Resources Board

(DNRs policy making body) for the creation of any new general permit and that the Board should not

be allowed to delegate this decision making to the agency or any other body. Since the Natural

Resources Board meets almost every month (except July and December) the timeframe to seekapproval should not be as arduous as the rule making procedure but will still provide review by a

statewide policy body and a layer of insulation from the Governor.

Default Permitting

Another provision of the bill, largely retained intact from the initial draft, requires the department tomake a decision to approve or deny an individual permit within 30 days. If the department fails to do

so, SB 326 and the substitute amendment consider the application approved as requested by the

applicant, thus penalizing the resource for the departments missing a deadline. This default (or

Source:

* Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1.


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presumptive) approval is especially troubling when combined with the fact that the department may beissuing more general permits for increasingly complex activities. It is also troubling because the

department already operates under this default or automatic approval if a 30 day time limit is missed

for general permits. This legislation is taking the default permitting the next step and applying it toindividual permits which are more complex, site specific and require more time to permit.

The Department is also critically understaffed in the Water Management Specialist position, those fieldstaff who are responsible for chapter 30 permitting. Last summer the program had a 40% vacancy rate

and the department could not fill positions. Now the program is understaffed by 30% after approval to

fill some positions was received. But after talking to DNR staff, it is clear that the percentage does not

tell the whole story. Over the last year DNR has lost an unprecedented amount of veteran watermanagement program staff to other department positions due to job stress, the regulatory nature of the

job or political pressure on projects. The 30% staffing vacancies are large, but losing the wealth of

knowledge that veteran staff possess is even more of a hardship. Also, keep in mind that this numberdoes not include what the water division will have to absorb due to budget shortfalls this biennium and

forced lapses to the General Purpose Revenue (GPR) account. The water division is expected to hold

23 additional vacancies due to lapses and unless water management specialists are prioritized, the

staffing levels could decrease even more.

In addition, this is a classic solution to a non-existent problem. Currently, DNR approves 97% ofpermits within 26 days, and generally strives to meet a thirty day timeframe for an individual permit

decision. From discussions with DNR staff, it appears that most of the remaining 3% of permits not

decided upon within 30 days are the result of staff attempting to work with the applicant to modify the

application to allow the project to be approved. While there may certainly be instances where theagency simply dragged its feet, DNR is trying its best to find ways to approve permits. If given a hard

deadline of 30 days or face default approval, it is likely DNR will simply begin to DENY those permits- probably not the result being pursued by the drafters of this legislation.

A final set of problems with the default approval deal with implementation. The legislation allows thedepartment to place conditions on a permit even if it was issued by default because the department

missed a deadline. If DNR is going to condition a permit that they missed a deadline on, they are not

going to have the conditions in the applicants hand on the 31st

day when the backhoe is at the lake. Itis likely that the applicant will not find out about permit conditions until after work has begun on the

default approved project. This after-the-fact methodology will not work to the benefit of applicants,

but rather slow their projects, cause additional conflict and lead to more confusion. In addition,adjacent property owners are always given the opportunity to appeal a department decision, but the

department is not deciding anything in default permitting a time limit simply expired. Therefore, a

project allowed to proceed through default approval strips away the publics right to appeal a project

that could have impacts to their property, property values or lake. Finally, the department does not

have a permit to enforce unless conditions are added to default approvals. Therefore, it is ourestimation that the majority of default approved permits will have conditions placed upon them by the

department so that they have an enforceable document of record. Wisconsin Lakes trusts that the thesepotential impacts were not the intentions of the authors of this legislation, but none-the-less are

practical, on-the-ground implementation effects of default permitting.

Wisconsin Lakes would like to see the automatic approval of permits removed from this bill. We would

like to hold the department accountable by continuing to require a time frame for permit decisions, but

remove the requirement that our states water resource pay the long term price for internal DNR


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staffing or personnel problems and the inability to meet a time limit. Removing this provision would

keep ch. 30 regulations in line with the newly released wetland reform bill which requires time limits

for issuing permits but does not provide for default permitting.

Terms for Individual Permits

The third change Wisconsin Lakes is calling for in the substitute amendment involves the term or

length of individual permits. Under current law, a project conducted under an individual permitgenerally must be completed within three years. The department may extend the time limit for up to

an additional two years for good cause if the applicant makes the request before the permit expires.

The amendment removes the provision that the DNR extend the time limit only for good cause and

actuallyrequires the department to extend the time frame for anadditional five years if a request ismade by the permitee prior to the original permit expiration. The authors of this bill are really

allowing an activity that is currently only granted three to five years an eight year approval. Why

should developers, even potentially bad actors, get more time with no penalties when the department islimited to tight deadlines for increasingly complex activities and if they fail, the resource pays with

potentially long term, irreversible consequences?

Wisconsin Lakes recommends that the individual permit term changes in SB 326 be rejected and theprovision of extension only for good cause contained in current law be retained.

Extension of WPDES Permits

The final provision that Wisconsin Lakes would like revised or removed from the substitute

amendment does not relate to ch. 30 permits but rather WPDES and stormwater management permits.

At the end of 2010 Wisconsin passed new, innovative water quality effluent based standards for allpoint sources which discharge phosphorus to the surface waters of the state. These provisions, even

with innovative management strategies for point and nonpoint discharges through adaptivemanagement and pollutant trading, were the target of the Governor in his biennial budget first with a

suspension of the rule and then with a two year delay. Both concepts were defeated because the public

understands that excess phosphorus is responsible for algae blooms and excess vegetation growth inour states lakes. Even though all attempts thus far to delay or stop implementation of the phosphorus

effluent standards have been defeated, the idea resurfaces in this bill, although cleverly disguised.

Under current law, WPDES and stormwater management permits issued by the department are for

terms no longer than five years. There is nothing in current law about renewal of these permits. The

substitute amendment gives the DNR explicit authority to renew these permits for not more than fiveyears. The practical effect of this provision is that after this bill would become law, a current WPDES

permit holder could request to have their current permit, without phosphorus effluent standards

(because they werent in effect when the original permit was issued), renewed for five additional years.

This paired with the fact that the new phosphorus standards provide one permit cycle of 5 years for the

permit holder to decide how to limit the phosphorus in their effluent, means that the new phosphorusstandards approved in 2010 will not be completely implemented for up to 10 years for many permits.

There are about 500 municipal wastewater dischargers of phosphorus in the state and between 100 and

200 industrial dischargers. Each year about 20 percent are up for renewal. Given that some of the

permits would not have any change in the effluent limits, 20 percent equates to about 80 to 85municipalities per year and 20 to 40 industries per year that could request to continue to use current

permits without phosphorus effluent standards for 5 additional years.


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