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 afterthey 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.

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