Over the years, property owners have complained about the permitting process related to real estate development activities near navigable waterways. Most of these complaints, however, have not focused on the environmental standards that must be met in order to receive a permit. Rather, property owners seem most frustrated by the decision-making process itself, which they claim is plagued by, among other things, indefinite timelines and unlimited requests for additional information.
In response, Representative Jim Steineke (R – Vandenbroek) and Senator Frank Lasee (R – DePere) have introduced legislation (Assembly Bill 177/Senate Bill 133) that seeks to add greater certainty and predictability for Wisconsin’s homeowners and landowners when applying for permits related to activities near navigable waterways.
The Problem
Chapter 30 of the Wisconsin Statutes regulates various activities important to homeowners and other landowners located near navigable waterways by requiring them to obtain individual permits. Some of these activities relate to new development such as:
- Grading permits for land disturbances of more than 10,000 square feet.
- Dredging related to any navigable waterway, including drainage ditches.
- Other activities that disturb land in low-lying areas or wetlands.
In addition, individual permits may be required for common use and property maintenance activities, such as placing or grandfathering larger piers, or installing riprap to prevent erosion.
Currently, Chapter 30 contains various deadlines designed to make the permitting process more predictable, equitable and efficient. However, certain deficiencies in the law have prevented this from happening, such as:
No limits on completeness determinations. While Chapter 30 requires the DNR review and application within 30 days after the DNR determines the application complete, the law does not establish any timelines for determining completeness. Accordingly, a permit applicant may have to wait several months to receive a determination as to whether the application is complete. Furthermore, in determining whether the application is complete, the DNR can make an unlimited number of requests for additional information from the permit applicant. In addition to causing indefinite delays, the unlimited number of requests for additional information can result in added costs that may have been unknown to permit applicants at the time they submitted the application.
No consequences for failing to meet statutory timelines. Currently, if the DNR fails to meet one of the permit processing deadlines, no consequences exist. As a result, the permit applicant cannot be certain that the processing deadlines will be met. Without appropriate consequences, the permit processing deadlines cannot be enforced, and, thus, are meaningless.
The burden of proof in some contested case hearings is misplaced. Under current law, a member of the public may challenge a decision made by the DNR to grant a permit. When a member of the public challenges such a decision, a hearing is held before an administrative law judge to determine whether the DNR acted properly in granting the permit. However, in cases dealing with wetland permits and other de novo proceedings, the permit applicant has the burden to prove that the DNR acted properly in granting the decision. Given that the permit applicant already presented the necessary information in order for the DNR to grant a favorable decision, placing the burden of proof on the permit applicant a second time to prove that the application is worthy of a favorable decision is a form of double jeopardy and is unfair to the permit applicant.
The Proposed Solution
AB 177/SB 133 seeks to make the permitting process more equitable and predictable for homeowners and landowners by addressing the problems discussed above in the following manner:
- Allows the DNR to request additional information from the permit applicant only one time after the application has been submitted. AB 177/SB 133 attempts to expedite the permitting process by limiting the number of requests for additional information. This will require the DNR to provide the permit applicant with more specificity regarding what information is necessary to process the permit.
- Allows presumptive approval of the permit if the DNR cannot find a reason to deny the permit within the specified timelines. To ensure greater compliance with the current permit processing deadlines, AB 177/SB 133 specifies that the permit or contract shall be considered approved if the DNR cannot find a reason to reject the permit or contract within the specified timeframes. Despite claims to the contrary, the bill does not require the DNR to approve the permit application within the specified timeframes, but merely requires the DNR to make a determination.
- Places the burden of proof on the person who challenges the DNR decision. AB 177/SB 133 attempts to make all challenges to DNR decisions consistent by placing the burden of proof on the person who challenges the decision. Currently, the burden of proof is on the person who challenges the decision in all cases EXCEPT wetland permits and de novo proceedings. The bill would make the burden of proof requirement consistent for all DNR decisions.
The Wisconsin REALTORS® Association supports this legislation and will be working with the legislature and the governor’s office to get the bill enacted into law during this legislative session. If you have questions about this legislation, please feel free to contact Tom Larson (tlarson@wra.org) at (608) 240-8254.
Tom Larson is Chief Lobbyist and Director of Legal and Public Affairs for the WRA.