WisBusiness: DNR Board adopts waterway development rules

By Joanne Haas

Meeting by teleconference, the Natural Resources Board on Tuesday unanimously adopted a package of waterway development emergency rules linked to the recently enacted "Jobs Creation Act.” That legislation, which took effect in early February, put in place regulatory reform measures easing and speeding the process to secure environmental permits for construction. 

Environmentalists charged the new law sounded the death knell for many of the state’s waterways and wildlife habitats in the name of creating employment. The Doyle administration along with Republican legislative leaders insisted the law would not harm the environment. And the set of emergency rules approved today is intended to keep that promise.

The package of rules, first before the board at its March 24 meeting, originally was supported by several conservation and wildlife groups. But the board agreed to delay any action until yesterday to allow for more review by stakeholders — including legislators — who expressed concerns. Todd Ambs, administrator of the DNR’s Division of Water, detailed several changes he stressed all were aimed at clarifying intent and answering concerns raised in March.
"This rule package is essential to maintain our public trust responsibility and to protect the public waters of our state" as required by the Constitution and the legislative intent, Ambs said.

The new law exempts certain activities from the DNR’s site review process. The rules are designed to specify how exemptions are awarded, as well as what is needed for the more general permits. As of April 2, Ambs said, the agency had received 89 requests to be exempt from an environmental permit under the new law. Of that total, 43 were determined to be exempt, 36 were for activities outside the statutory exemptions, three requested a permit in lieu of exemptions, and seven had not been determined.

One of the changes offered by Ambs Tuesday removes grading entirely from the package. Ambs said the DNR will work with the builders and conservation groups to craft a compromise and proposed specifications for general permits. Ambs said the goal is to have that package ready for the board’s regular April meeting. If that is impossible, Ambs said the next goal would be to have that agreed-upon package ready by the May meeting.

Regarding exemptions for the placement of piers and other similar structures, Ambs said the rule seeks to ask property owners to ask themselves a few self-permitting questions before placing such a structure in the water. Questions in this so-called public rights features include asking whether the structure would rest in the center of a fish spawning area or a native aquatic habitat.
Board member Christine Thomas wondered who would be policing that self-permitting process, as well as making sure people understand the questions and how to recognize such precious areas.

Ambs said the DNR will be doing its best, but has never looked at every pier in the state. "My expectation is that if we’ve got somebody that puts a new pier in the middle of a fish spawning habitat… we’re going to get a call from a neighbor who is going to say, ‘Whoa, I don’t like this. … That realistically is how many of these things are going to be brought to our attention."

Thomas said she interpreted Ambs’ statement about one of the proposed changes as meaning "instead of us (DNR) proactively working with people to makes sure that they do the right thing from the beginning, we’re now going to be reactively trying to correct things that got done improperly from the beginning."

Thomas’ concerns also were those of George Meyer, the former DNR secretary who now works with the Wisconsin Wildlife Federation. "Eventually what they (DNR) will have to do is map every lake in the state," he said, adding only 134 of the state’s 15,000 or so lakes have been mapped. Mapping will assist citizens in learning what is happening in those waters.

While Meyer said the emergency rules, which will expire in 150 days, "will be fairly effective at protecting fish and wildlife habitats" on a temporary basis, the issue will be around for a long time.

"I believe they will find many projects will be exempt," he said. "Most citizens won’t know a fish spawning area because they aren’t trained fish biologists… This will erode and damage fish spawning in the state."

The board also supported an amendment from member Jonathan Ela to require a report from DNR staff about the rules’ effects within 75 to 90 days.