Power Plants: Waterway & Wetland Permitting

Navigable waters are those with a bed and banks that are capable of floating – on a recurring basis - a shallow-draft recreational watercraft. Those streams appearing as perennial or intermittent on U.S.G.S. topographic maps are generally navigable and other unmapped streams can be navigable as well. The jurisdictional status of any stream or pond of sufficient width and depth to float a small canoe or kayak should be determined early in the site planning process.

The DNR has put together a power plant pre-filing checklist [PDF 93KB] to help expedite the permitting process relating to wetlands and navigable waters issues.

Permits affecting navigable waters

Any project that would affect the waters of the state may require a permit under the authority of Ch. 30, Wis. Stats. [exit DNR]. These include crossings and modifications of navigable waters and connected wetlands. This includes intake and discharge structures and pipes, the withdrawal of water from surface waters, and grading along the banks of state waters. Ch. 30 is intended to protect public rights in navigable waters. This permitting program is coordinated with the U.S. Army Corps of Engineers permitting authority under Section 404 of the Clean Water Act (CWA) [exit DNR] and Section 10 of the Rivers and Harbors Act [exit DNR]. The DNR must issue a Water Quality Certification under Section 401 of the CWA for facilities subject to Corps jurisdiction.

Permits for activities that may affect federal and non-federal wetlands will be reviewed under the requirements of ss. 281.36, Wis. Stats., and Ch. NR 103, W.A.C., Water Quality Standards for Wetlands, and Ch. NR 299, W.A.C. This review relates to the issuance of Ch. 30 permits, and to the DNR’s actions under NR 299 W.A.C. (Section 401 Certification) or s. 281.36, Wis. Stats. The standards set in NR 299 and NR 103 require the applicant to demonstrate that they have considered practicable alternatives that avoid and minimize wetland impacts, and that the project will not have significant adverse impacts to wetland functions and values. The rules apply to any permit actions on the power plant site, as well as along pipeline and transmission line routes to serve it.

Wetlands should be identified from Wisconsin Wetland Inventory and NRCS wetland maps as well as soils surveys (generally those characterized as poorly to somewhat poorly drained soils) – and corroborated by site investigation by an experienced wetland ecologist.

Site plans should avoid placement of facilities in waterways and wetlands. If there are practicable alternatives as defined by NR 103 (including alternate sites and facility or site configurations) that avoid and/or minimize wetland fill, then that fill cannot be authorized.

The application and decision process for waterway and wetland permits follows these steps:

1. Site evaluation by the applicant for the presence of public, navigable waters and wetlands
2. Pre-application conference with Water Management Specialist
   Applicant should understand potential jurisdiction, including regulated activities (structures, dredging, etc.), as well as the scope of alternatives to be analyzed and the likelihood that wetland fill can be authorized.
3. Submittal of a complete application
   Detailed lists of application content for various regulated activities are available through waterway and wetland permit program. If the facility cannot be sited or designed to avoid wetland impacts, then data must be submitted to document the cost, logistical or technological barriers that do not allow the applicant to avoid wetland impacts (see especially application form for Wetland Water Quality Certification). For structures in public, navigable waters, documentation of title to riparian land or joint application with the owner of riparian land is required.
4. Determination of completeness
   The Power Plant Siting Law (ss. 196.491 (3), Wis. Stats.) gives DNR 30 days to determine whether an application is complete and request additional information needed to make it complete.
5. Field and data inspection
   DNR staff use information from natural resource inventories, technical literature, site inspections, and consultations with fisheries, wildlife and other specialists, to evaluate the proposal. They will compare existing functions of regulated waters (at the site, and along pipeline and access routes) that are protected as public rights with the likely post-project functions to determine whether the project can be authorized as proposed, with modifications, or not at all. With regard to wetland impacts, if a practicable alternative exists to avoid or minimize the impact, then wetland fill cannot be authorized. Generally, the standards for granting permits for structures or alterations in, or near, navigable waters are:
   1. no material obstruction to navigation
   2. no reduction to the flood flow capacity of a stream, and
   3. no detrimental impact to public rights and interests (fish and wildlife and their habitat, water quality and quantity, natural scenic beauty).

The legal standards for granting permits are found in statutes, administrative rules and case law. References are available at: Waterway and Wetland Permit Program.

6. Public Notice
   Once the application is complete, and the Department determines that it may be able to authorize the activity without major modifications, the applicant must publish a newspaper notice provided by WDNR. Interested persons may submit a written objection to the project on the basis of its impacts to public rights and request a contested case hearing before an independent Administrative Law Judge. Based on the field and data inspection, and on any information received during the public notice period, the department determines whether a permit can be granted for the project as proposed or as modified. WDNR staff will then issue a permit, approval or certification. If a contested case hearing is held, the Administrative Law Judge makes the permit decision. At that point, any persons objecting to the permit must challenge it in circuit court.

For more information on DNR's role in waterway and wetland power plant permitting please contact:
Dave Siebert
(608) 264-6048
or visit the Waterway and Wetland Permitting Program