Current through November 25, 2024
(1) The department
shall notify the applicant, the federal permitting or licensing agency, and the
regional administrator within 120 calendar days of receipt of the complete
application of its determination to deny the certification, grant or
conditionally grant the certification, or waive the certification.
(2) The department's determination shall be
in writing and shall explain the reasons for granting, granting conditionally,
denying or waiving certification.
(3) The department's decision concerning a
certification shall include the following:
(a) The name and address of the
applicant;
(b) A statement that the
department has made its decision about compliance with related state water
quality standards enumerated in s.
NR 299.04(1) and denies, grants, grants
conditionally or waives certification consistent with that decision.
(c) A waiver of certification shall include:
1. A statement explaining the determination
that no discharge will result from the activity or that the activity does not
fall within the purview of the department's authority; and
2. A statement advising the licensing or
permitting agency and the applicant if the activity proposed requires
authorization under requirements of state law administered by the department
which are not related to water quality; and, where applicable,
3. Specific recommendations to the federal
permitting authority and the applicant for avoidance of waters of the state.
When all reasonable alternatives necessarily result in adverse impacts on
waters of the state, a waiver may recommend specific project locations, and
design and construction techniques which minimize adverse impacts on waters of
the state and which minimize overall environmental impacts.
(d) A grant or conditional grant
of certification shall include:
1. A statement
that there is a reasonable assurance the activity will be conducted in a manner
which will comply with the standards enumerated in s.
NR 299.04 and, if appropriate,
2. A statement of conditions which the
department deems necessary with respect to the discharge including necessary
monitoring requirements. Monitoring requirements shall include, but not be
limited to, provisions that:
a. At least 5
business days prior to the beginning of the discharge, the applicant shall
notify the department of its intent to commence the discharge;
b. Within 5 business days after the
completion of the discharge, the applicant shall notify the department of the
completion of the discharge;
c. The
applicant shall allow the department reasonable entry and access to the
discharge site in order to inspect the discharge for compliance with the
certification and applicable laws.
3. A statement advising the licensing or
permitting agency and the applicant if the activity proposed may require
additional authorization under requirements of state law administered by the
department which are not related to water quality.
(e) A denial of certification shall include,
a statement explaining why the department does not have reasonable assurance
that the discharge will comply with the standards enumerated in s.
NR 299.04, and detailing the standards of
concern.
(f) All denials or
revocations of certification shall include a statement that unless a written
request for a hearing is filed with the department within 30 days after mailing
of the decision, the department's decision will become final without public
hearing at the end of the 30-day period.
(fm) All grants or conditional grants of
certification shall include a statement that unless a written request for
hearing is filed with the department within 30 days after publication of the
decision, the department's decision will become final without public hearing at
the end of the 30-day period.
(g)
All such decisions may also include other information which the department
determines to be appropriate.
(4) Except for applications under chs. 30 and
31, Stats., the department shall, in the case of a grant or conditional grant
of certification:
(a) Notify the applicant,
the licensing or permitting agency and known interested persons of its
decision.
(b) Cause notice of its
decision to be published by the applicant as a class I notice under ch. 985,
Stats. Notice under this subsection shall identify the applicant and his or her
address, describe the activity and its location, state the department's
determination, and apprise the public of the opportunity to request a hearing
under this chapter.
(5)
Any person whose substantial interests may be affected by the department's
determination may, within 30 days after publication of the notice, request in
writing a contested case hearing on the matter under ch. 227, Stats. A request
for a contested case hearing shall include a written statement giving specific
reasons why the proposed activity violates the standards under s.
NR 299.04(1) (b) and provide specific
information explaining why the petitioner's interests are adversely affected by
the department's determination. The request for hearing shall also include a
written statement specifying that the petitioner will appear and present
information supporting the petitioner's objections in a contested case hearing.
The department may request additional information from the petitioner to
support the allegations in the petition prior to granting or denying a hearing
request. In any case where a class 1 notice on the application is otherwise
required by law or where a contested case hearing on an application for water
quality certification will be held under some other specific provision of law,
the notice and hearings shall be combined.
(6) Hearings requested under this section
shall be contested case hearings, shall be in accordance with the procedures
outlined in ch. 227, Stats. The hearing shall be a de novo hearing on the issue
of whether the department should grant, grant with conditions, deny or waive
water quality certification. No hearing may be granted under this section on
issues relating to water quality certification for a specific project if the
same issues were, or could have been, adjudicated in another proceeding in
which the petitioner or persons privy to the petitioner was named or admitted
as a party.
(7)
(a) The department's determination shall
become final:
1. Upon issuance of the
department's decision where no public notice is required, or
2. Upon the expiration of the 30-day period
provided under sub. (5) if no person has requested a hearing under that
section, or
3. Upon the issuance of
the department's decision denying the request for hearing under sub. (5),
or
4. Upon issuance of the
department's decision after hearing.
(b) If a hearing is held under sub. (6), the
hearing examiner shall make findings of fact, conclusions of law and a
decision, which shall become final when issued in accordance with the
procedures in ch. 227, Stats., and this section.
(c) The final decision of the department
under par. (a) shall be judicially reviewable as provided under ch. 227, Stats.
