2017 Wisconsin Statutes & Annotations
Chapter 283. Pollution discharge elimination.
283.63 Review of permits, decisions, terms and conditions.
283.63 Review of permits, decisions, terms and conditions.
(1) Any permit applicant, permittee, affected state or 5 or more persons may secure a review by the department of any permit denial, modification, termination, or revocation and reissuance, the reasonableness of or necessity for any term or condition of any issued, reissued or modified permit, any proposed thermal effluent limitation established under s. 283.17 or any water quality based effluent limitation established under s. 283.13 (5). Such review shall be accomplished in the following manner:
(a) A verified petition shall be filed with the secretary setting forth specifically the issue sought to be reviewed by the department. Such petition must be filed within 60 days after notice of any action which is reviewable under this section is issued by the department. The petition shall indicate the interest of the petitioners and the reasons why a hearing is warranted. Upon receipt of such petitions, the department shall provide a notice of public hearing in accordance with the requirements of s. 283.39 (1) at least 10 days prior to holding a public hearing thereon. The public notice shall be considered to be provided on the date specified in s. 283.39 (1m).
(am) After a verified petition for review is filed and until the last day for seeking review of the department's decision or a later date fixed by order of the reviewing court, any term or condition, thermal effluent limitation or water quality based effluent limitation which is the subject of the petition is not effective. All other provisions of the permit continue in effect except those for which an application for a variance has been submitted under s. 283.15 or 283.16. For those provisions for which a petition for review has been submitted under this section, the corresponding or similar provisions of the prior permit continue in effect until the last day for seeking review of the department's final decision or a later date fixed by order of the reviewing court.
(b) The department shall hold a public hearing at the time and place designated in the notice of hearing. At the beginning of each such hearing the petitioner shall present evidence to the department which is in support of the allegation made in the petition. All interested persons or their representative shall be afforded an opportunity to present facts, views or arguments relevant to the issues raised by the petitioners, and cross-examination shall be allowed. The department shall consider anew all matters concerning the permit denial, modification, termination, or revocation and reissuance. No person may be required to appear by attorney at any hearing under this section.
(c) Any duly authorized representative of the department may administer oaths or affirmations, compel the attendance of witnesses and the production of information by subpoena and continue or postpone the hearing to such time and place as the department determines.
(d) The department shall issue its decision on the issues raised by the petitioner within 90 days after the close of the hearing.
(2) The decisions of the department issued under this section shall be subject to judicial review as provided in ss. 227.52 to 227.58.
(3) Subsections (1) and (2) do not apply if a hearing on the permit application is conducted as a part of a hearing under s. 293.43.
(4) Subsections (1) and (2) do not apply to the modification of a permit which implements a decision under s. 283.15 or 283.16 or the denial of a request for a variance under s. 283.15 or 283.16. A proceeding under subs. (1) and (2) shall not be delayed pending completion of the review of a variance request under s. 283.15 or 283.16.
(5) Rules promulgated under s. 281.15 may not be reviewed under this section. The application of rules promulgated under s. 281.15 may be reviewed under this section.
The judicial review procedure under this section, in conjunction with s. 227.05, 1983 stats [now s. 227.40], is exclusive. Sewerage Commission of Milwaukee v. DNR, 102 Wis. 2d 613, 307 N.W.2d 189 (1981).
Timely review under s. 147.20 [now s. 283.63] of a modified permit does not reopen for consideration those unmodified portions of the permit for which the review period has expired. Village of Thiensville v. DNR, 130 Wis. 2d 276, 386 N.W.2d 519 (Ct. App. 1986).
This section does not require DNR to hold a public hearing on a petition for review when the premise of the petition is that the permit fails to comply with basic requirements of the federal Clean Water Act and federal regulations promulgated thereunder. By approving the WPDES permit program and by failing to object to the permit, the EPA effectively determined that the permit complies with federal regulations. Requiring DNR to subsequently determine whether the permit complies with those same federal regulations would be to empower DNR to undercut the EPA's determination. Andersen v. Department of Natural Resources, 2011 WI 19, 332 Wis. 2d 41, 796 N.W.2d 1, 08-3235.
Sewerage Commission of Milwaukee explicitly held that the commission's failure to follow the procedure set forth in this section precluded a later challenge under ch. 227, because this section is the exclusive method of administrative and judicial review of the DNR's action. Because the contested case procedure to challenge a pollution discharge elimination system permit is exclusive, it follows that no other procedure, whether a rule challenge, a declaratory judgment, or as here, a premature judicial review petition, can circumvent it. Clean Water Action Council of Northeast Wisconsin v. Department of Natural Resources, 2014 WI App 61, 354 Wis. 2d 286, 848 N.W.2d 336, 13-2112.