(1) The department
shall develop and revise technical standards to implement the performance
standards in subchs. III and IV through a process outlined as follows:
(a) The department may decide that a new or
revised technical standard is necessary to implement a performance
standard.
(b) Any person may
request the department to develop or revise a technical standard designed to
meet a performance standard. The request shall be made in writing to the
director of the department's bureau of watershed management and shall include
the performance standard for which technical standard development or revision
may be needed, and an explanation why a new or revised technical standard is
requested.
(c) The department shall
evaluate a request submitted pursuant to par. (b), to determine if it is
necessary to develop or revise a technical standard to implement a performance
standard. If the department determines that a new or revised technical standard
is not necessary to implement a performance standard, it shall reply to the
requester in writing as to the reasons that a technical standard does not need
to be developed or revised.
(d) If
the department determines that a new or revised technical standard is necessary
to implement a performance standard, it shall:
1. Determine the state agency responsible for
the technical standard.
2. If the
responsible state agency is not the department, request the responsible state
agency to develop or revise a technical standard.
3. If the responsible agency denies the
request to develop or revise a technical standard, the department may initiate
conflict resolution procedures outlined under any existing memorandum of
understanding or agreement between the department and the responsible agency.
If no conflict resolution procedures exist, the department may attempt to
resolve the disagreement through stepped negotiations between increasing higher
levels of management.
(e) The department shall use the following
procedures when it acts to develop or revise technical standards to implement
the performance standards in subchs. III and IV.
1. Convene a work group to develop or revise
the technical standard that includes agencies and persons with technical
expertise and direct policy interest. The work group shall include at least one
representative from the agency or person that made an initial request to
develop or revise the technical standard.
2. The work group shall publish a class 1
public notice and consider public comments received on the technical standard
prior to providing recommendations to the department under subd. 3.
3. The work group shall provide a recommended
technical standard to the department within 18 months of its formation unless
the director of the bureau of watershed management grants an extension to this
deadline.
(f)
1. Notwithstanding other provisions of this
section, and acting jointly with the department of transportation and in
consultation with other appropriate stakeholders, the department shall:
a. Develop a technical standard that, by
design, meets the performance standard established in s.
NR 151.23(4) and (4m). This technical
standard shall address slope erosion and channel erosion and identify BMPs that
may be used given a variety of site conditions.
b. Annually review this technical
standard.
2. For
transportation facility construction sites, the technical standard developed
under this paragraph shall also indicate any conditions under which it may not
be used to implement the performance standard established in s.
NR 151.23(4) and (4m).
3. This technical standard and future
revisions become effective upon signatures from both secretaries of the
department and the department of transportation, or their designees.
(2)
(a) Upon receipt of a proposed technical
standard or technical standard revision, either developed by the department or
a responsible state agency, the department shall determine if the technical
standard will effectively achieve or contribute to achievement of the
performance standards in subchs. III and IV. The department shall provide its
determination in writing to the responsible state agency that prepared the
proposed technical standard.
(b) If
the department determines that a proposed technical standard will not
adequately or effectively implement a performance standard in subchs. III and
IV, the proposed technical standard may not be used to implement a performance
standard in whole or in part.
(c)
If the department determines that a proposed technical standard will adequately
and effectively implement a performance standard in subchs. III and IV in whole
or in part, the new or revised technical standard shall be used in lieu of any
existing standards to implement the performance standard beginning with plans
developed after the date of this determination.
(d) The department may determine a portion of
a technical standard is adequate and effective to implement the performance
standards under subch. III or IV.
(3) The department shall accept technical
standards and best management practices developed by the department, the
department of safety and professional services, the department of
transportation or other appropriate state agencies, existing on October 1,
2002, unless the department identifies a technical standard as not adequate or
effective to implement a performance standard in subchs. III and IV in whole or
in part, and informs the responsible state agency of this determination and the
basis for it.
(4) Until the
processes under subs. (1) and (2) are completed, an existing technical standard
identified by the department under sub. (3), or previously accepted by the
department as adequate and effective to implement a performance standard under
subch. III or IV shall be recognized as appropriate for use under this chapter.
(5) The department may identify
technical standards that exist or are developed by qualified groups or
organizations as adequate and effective to implement the performance standards
under subch. III or IV.
(6) Except
as provided in s.
NR 151.26, if a technical standard that the department
determines is not adequate or effective to implement a performance standard in
whole or in part is used to implement a performance standard under subch. III
or IV, the department may initiate enforcement proceedings for failure to meet
the performance standard under s.
281.98,
Stats.
