Overview of the WPDES wastewater permit process
The basic steps involved in issuing an individual (specific) non-controversial wastewater permit involve:
- Submission of permit application;
- Preparation of draft permit and supporting documents;
- Public noticing the permit; and
- Issuing the final permit following the public comment period.
These steps and other aspects of the permit issuance process are summarized below.
The issuance process for a general permit varies from the above. Visit General Permits for more information.
The DNR has separate wastewater permit applications for each type of wastewater permit. In order to receive a permit to discharge wastewater in Wisconsin, a wastewater permit application must be completed and returned to the DNR. The due date for submission of the completed application is at least 180 days in advance of the planned start of discharge.
Draft permit documents
Department staff consider different factors in preparing draft wastewater permit documents, examples of which include the following:
- Do categorical or water quality based effluent limits apply?
- Are there biomonitoring concerns?
- Are any new or more stringent limits needed (based on change in stream classification or effluent characteristics)?
- What toxics monitoring should be requested either as part of the permit or with this application?
- Are there any antidegradation concerns?
- Is an environmental review needed?
- For reissuances, is the facility in substantial compliance with its current wastewater permit?
As part of the permit drafting process a meeting may be held with DNR staff and the permittee to review the requirements of the proposed permit. Copies of the proposed permits may also be forwarded to the EPA for review.
Public notices are required by law to alert interested members of the public of the DNR's intention to authorize a discharge to a water of the state. Notices are published once in the legal notices section of a newspaper within the vicinity of the facility and are posted on the WPDES public notices web page. The public has at least 30 days from the date of public notice to submit comments to the department. These responses can include verbal or written comments, or requests for informational meetings or public hearings.
Public informational hearings
Pursuant to s. 283.49, Wis. Stats, the DNR may hold a public informational hearing on a wastewater permit action. Any person or unit of government may request a public informational hearing. Requests for public hearings should contain at least five signatures. In some cases, the DNR will hold a hearing without waiting for a request because of known local controversy or opposition to a wastewater permit action.
Parties requesting a hearing will be contacted to inform them that the DNR has received the request and will be scheduling a hearing time and place for the purpose of giving all interested persons an opportunity to make a statement with respect to a permit application or issuance and to have such statements considered in the final decision. Comments on a wastewater permit and its limitations and conditions can be made by attending the public hearing or by submitting any comments or objections in writing to the DNR, usually within seven days of the hearing date. Comments as received will be made part of the hearing file.
Final permit issuance
All comments received from the public, the permitted facility and the DNR must be taken into account in preparing the final wastewater permit. After reviewing all of the comments received, the DNR prepares a Notice of Final Determination, which summarizes what action the DNR took in response to public comments. If no comments are received on the proposed permit from anyone, including the EPA, the permit will be issued as proposed. The final wastewater permit and cover letter are signed by the appropriate DNR designee and sent to the permittee.
When the DNR issues, reissues or modifies a permit to include a water quality based effluent limitation, the permittee may apply to the department for a variance from the water quality standard used to derive the limitation. This application must be made within 30 days after permit issuance. The permittee must demonstrate that attaining a water quality standard is not feasible. The DNR secretary may approve, deny or partially approve a requested variance. Authority for variances to wastewater permits may be found in s. 283.15, Wis. Stats, "Variances to a water quality standard."
An adjudicatory hearing can be requested for any final department action on a wastewater permit. In order for an adjudicatory hearing to be held, a verified petition must be submitted to the secretary of the DNR by the permit applicant, the permittee, any state affected or to be affected by the discharge, or by five or more persons. The petition must be submitted within 60 days after notice that the action has been issued by the DNR. The form of the verified petition is specific and must contain all the information detailed in Section NR 203.17, Wis. Adm. Code.
After the matter has been set for hearing, an examiner from the Department of Justice Division of Hearings and Appeals discusses with the opposing parties the possibility of holding a prehearing conference. The purpose of such a conference is to determine what, if any, points of agreement exist between the parties and attempt to specify points of conflict or discussion. Holding a prehearing conference may lead to a modification, withdrawal or confirmation of the petition. The adjudicatory process may proceed as follows:
- Adjudicatory Public Notices — The public notice for a prehearing conference or adjudicatory hearing is prepared by the Division of Hearings and Appeals and published in a newspaper within the vicinity of the facility. Copies of the notice are distributed to the permittee and petitioners.
- Hearing Procedure and Conduct — At the hearing, an examiner from the Division of Hearings and Appeals presides. The party requesting the hearing presents testimony first. The opposing party then has an opportunity to defend its position. Only those issues specified prior to the hearing may be discussed. Essentially, this is a trial situation with the examiner acting as judge. Witnesses are sworn in and cross examination is allowed. Witnesses may also be questioned regarding the answers provided for any written questions addressed prior to the hearing. Witnesses may be called, where necessary, by subpoena. After all testimony has been presented, the hearing is closed. The examiner then has 90 days in which to make a decision on the issues raised.
- Final Determination — The final determination, also called "Findings of Fact, Conclusions of Law and Order" for an Adjudicatory Hearing, is distributed. The permit action that was adjudicated is finalized and sent to all appropriate parties.
- Petitions for Rehearing in Contested Cases — Any person adversely affected by a hearing examiner's decision may petition for a rehearing under s. 227.49, Wis. Stats., within 20 days after service of the final order. The filing of a petition for rehearing does not affect the effective date of the order. However, the effective date is suspended if the petition is granted. A petition for rehearing is not a prerequisite for judicial review. However, if the petition for rehearing is filed, the 30-day period for filing a petition for judicial review does not begin until the petition for rehearing has been disposed of pursuant to s. 227.49, Wis. Stats.
- Judicial Review — If a party wishes to appeal a decision issued after an adjudicatory hearing, a request may be made for a judicial review under ss. 227.52 and 227.53, Wis. Stats. This requires, within 30 days of service of the adjudicatory decision, filing a petition with the department and with the clerk of the circuit court in the county where the petitioner resides. The petition shall state the nature of the petitioners interest and the grounds upon which the adjudicatory decision should be reversed or modified. During the review, the scope of discussion shall be confined to evidence or testimony on record, unless the court has granted the petitioner the opportunity to introduce additional information in writing prior to the date of the review. The presiding judge reviews the evidence presented and affirms, reverses or modifies the decision of the hearing examiner. If the court determines that a modification or reversal is in order, it may take such action or remand the matter to the hearing examiner who then must modify or reverse the decision accordingly.
The DNR or a permittee may request that a wastewater permit be revoked if the discharge is to cease, if a wastewater treatment facility is to be abandoned, or because of secondary enforcement, with agreement of the Department of Justice and DNR enforcement specialist. A wastewater permit revocation is needed if the term of the permit has not expired. If the permit is expired but the facility is no longer discharging, a determination of need letter is sent out.
A notice of intent to revoke is public noticed for a 30-day public comment period. If no public informational hearing is requested, a final letter is signed by the DNR and sent to the permittee. The letter contains instructions for appeal, as well as how to reapply if the discharge is ever to resume again.
Revoke and reissue
In special cases, a wastewater permit may be public noticed as a "revoke and reissue." Situations resulting in major revisions in permit terms and conditions (such as changing from groundwater to surface water discharge), may be processed as revoke and reissue. This permit action essentially terminates the existing permit, so a new permit with a five-year term is drafted. A public notice of intent to revoke and reissue is published. The reason for the revocation is stated in the public notice.
Converting an individual permit to a general permit
When an application for reissuance is received and reviewed, sometimes the facility operation has changed or a new general permit has been issued, allowing the discharge to be covered under a general permit. In these cases, DNR staff must agree that the conversion can occur. Then, the existing, specific permit can be terminated by letting it expire, issuing a "No Permit Required" letter, or revoking it to terminate it earlier than the expiration date. After the end of the permit term or finalization of the revocation, the facility can be granted coverage under the appropriate general permit.
Closure of permits no longer required
In cases where a wastewater permit has expired or is about to expire, and no application has been received for reissuance or an application was received but was later withdrawn by the applicant, and information indicates there is no longer a wastewater discharge at the facility and there are no violations of the permit to be resolved, action is taken to close the permit file. A public notice is not required in these cases, because there is no discharge or unresolved issues. The DNR sends a "No Permit Required" letter to the facility to provide notice of the DNR's decision and the facility's obligation to notify the DNR of any changes which would require the facility to obtain a permit in the future.