May Regulatory Update: Natural Resources Board Actions

June 5, 2020

The Wisconsin Natural Resource Board (NRB) held a virtual meeting on May 27th and took action on a number of regulatory matters.  The NRB authorized preliminary public hearings and comment periods on two scope statements.  A scope statement is a public notice that an agency intends to begin the development of a rule.  Preliminary public hearings on scope statements are required if directed by the Legislative Joint Committee for Review of Administrative Rules.  Preliminary hearings were authorized on scope statements relating to firefighting foam and the management of whitefish in Lake Michigan.  These items are described below.

Firefighting Foam:  Wisconsin enacted a law in 2020 that prohibited the use or discharge of firefighting foams containing per- and polyfluoroalkyl substances (PFAS), subject to exemptions for the use of certain PFAS containing foams as part of an emergency firefighting or fire prevention operation, and for use for certain testing purposes.  PFAS is commonly referred to as the “forever chemicals” due to their resistance to degradation.  They have been detected in Wisconsin’s drinking water, groundwater, surface water, soil, air, fish, and wildlife.  This rulemaking effort is the result of legislation also requiring DNR to adopt rules to implement the law.

Lake Michigan Whitefish Management:  This proposal would establish a quota and other harvest management requirements for whitefish in Lake Michigan and would standardize commercial harvesting reporting for Lake Michigan and Lake Superior.

If a preliminary public hearing on a scope statement was held or not required, the NRB may approve the scope statement and hearing notices for the proposed rules. DNR approved scope statements and hearing notices for the following rules relating to wastewater discharges to municipal wastewater treatment plants, and aquatic plant management.

Wastewater Discharges from Dental Offices and Requirements for Industrial Users with Facility-Specific Pretreatment Requirements:  This rulemaking effort is intended to regulate metal dental fillings from dental offices prior to discharge to municipal wastewater treatment plants, consistent with an existing EPA federal rule.  While treatment plants with variances from mercury limits have been required to implement a plan to minimize mercury, this would regulate dental offices in municipalities without minimization plans.

This rulemaking may also impact some entities that have facility-specific requirements to treat wastewater prior to discharging to municipal wastewater treatment plants.  This proposal is intended to meet EPA requirements for these facilities that discharge to municipal wastewater treatment plants that do not have approved pretreatment programs.  In these instances, this proposal specifies that DNR may issue permits implementing the facility-specific pretreatment requirements.

Aquatic Plant Management, Aquatic Habitat Protection, and Surface Water Grants.  The purpose of this rulemaking is to align the state’s aquatic plant management program with current state and federal law requirements, and with recent science regarding the control of invasive species and nuisance-causing species.  Moreover, the rule is intended to protect native aquatic plants, aquatic habitats, water quality, and public health.

The rulemaking is also consolidating three separate administrative rule chapters into one chapter.  Furthermore, this effort is intended to streamline the permitting process and incorporate integrated pest management principles, which emphasize the strategic use of multiple tools in management.

After approval of the scope statement, the proposed rule is drafted, and economic impact analysis for the rule is created (for permanent rules).  Hearings are held on the proposed rule and economic analysis.  The rule may then be taken up by the NRB for adoption.  The NRB adopted one rule, which is described below.

Air Rules Intended to Simplify Air Permitting Processes.  The NRB originally adopted this rule package in September of 2019.  The rule package contained a variety of provisions, such as an exemption from permitting to allow for law enforcement to incinerate drugs, and revisions to permit exemptions for external combustion furnaces.  The rule also allows, for example, the use of electronic signatures and electronic submission of materials in lieu of paper copies and ink signatures.

During legislative review of the rule, however, there were concerns raised during a hearing on the proposal that some of the provisions went beyond what was authorized in the scope statement.  The Assembly Committee on Jobs and the Economy requested a number of modifications to the rule.  In response, DNR eliminated four proposed changes in the rule to address those concerns.

Financial Requirements for Engineering Controls and Voluntary Liability Exemption for Projects with Contaminated Sediments.  This rule package was scheduled for adoption by the NRB, but was removed from the agenda.

Who Serves on Natural Resources Board?

The NRB is an important body in Wisconsin because it establishes policy for the DNR.  The NRB has broad authority over hunting, fishing, forestry, environmental protection, and thousands of acres of public land in the state, including state parks.

Who is on the Natural Resources Board?  DNR’s website explains:

“Chapter 15 of the Wisconsin Statutes establishes the 7-member Natural Resources Board and describes its duties.  Board members are nominated by the Governor with the advice and consent of the Senate for 6-year terms. Under the law, 3 members are appointed from the territory north of a line running east and west through the south limits of Stevens Point, 3 members from the territory south of the line and 1 member from the state at large.”

“2011 Wisconsin Act 149 states that beginning May 1, 2017, at least 1 Board member must have an agricultural background and at least 3 Board members must have held a hunting, fishing, or trapping license in at least 7 of the 10 years before the year of nomination except if an individual served on active duty in the U.S. armed forces or national guard during the 10 years previous to the year in which the individual is nominated, the number of years in which the individual is required to have held an annual hunting, fishing, or trapping license equals 7 minus the number of years of active duty served during those 10 years. Terms expire on May 1.”

Thus, Board member terms are longer than gubernatorial terms, which provides for the potential to serve under different governors.  In addition, the NRB is designed so its members come from different geographical parts of the state.  State law also effectively requires that some members be hunters, fishers, or trappers, and at least one member have an agricultural background.

The current NRB includes both Governor Walker and Governor Evers appointees.  For biographies of the NRB members, go to:

Patrick Stevens
Patrick Stevens