Sewer Service Area Plan and Plan Amendment Approval

• What Degree of Water Quality Protection Does Sewer Service Area Planning Authorize?
• "208 Conformance Reviews"
• When is Conditional Sewer Service Area Plan Approval Appropriate?
• Can Development Occur in Environmentally Sensitive Areas?
• What Sewer Service Area Amendment Requests Are Allowed?
• What are the Sewer Service Area Amendment Procedures?
• What Are the Amendment Review Criteria?
• SSA Plan Updates
• What if There is Opposition to a Proposed Amendment?
• What is the Decision Appeal Procedure?
• How Will The Plan Be Implemented?
• What are the Water quality planning agency responsibilities

What Degree of Water Quality Protection Does Sewer Service Area Planning Authorize?

The legal authority for sewer service area planning is derived from federal and state water pollution control legislation. The best assurance for the State of Wisconsin meeting these water quality goals is to prevent our groundwater and surface water from becoming polluted in the first place. Sewer service area planning helps preserve clean water by preventing sewered development in environmentally sensitive areas where it would cause adverse impacts to the waters of the state. The decision to approve or disapprove a sewer service area plan or amendment needs to be based on whether environmentally sensitive areas in the planning boundary are accurately delineated and protected against adverse water quality impacts.

There is good scientific data and a regulatory history to support floodplain, shoreland and wetland zoning prohibition on most development in those environmentally sensitive areas. There are also a number of of sewer service area plans that include steep slopes of generally greater than 12% and highly erodible soils in the environmentally sensitive areas designation, especially where they may adjoin shoreland corridors or wetlands.

Additional considerations for water quality protection include providing a buffer for environmentally sensitive features, which specifies the land area between the sensitive feature and potential development that may take place. Providing a buffer helps ensure that water quality impacts will not occur from future development - not notably sewerline construction and construction site erosion.

The Department can withdraw past sewer service area plan approvals for an area when new information indicates that sewered development will have significant adverse impacts on water quality. However, addressing the cumulative adverse impact that ongoing development has on effective stormwater management, for example, is an area that challenges the limits of our legal authority. The WDNR may develop water quality protection guidelines based on a water quality framework specifically adapted for a particular stream classification (See below: When Is Conditional Approval Appropriate? ). At the very least, the WDNR must note when ongoing water quality issues exist in a sewer service area, such as wetland mitigation projects, nonpoint source projects or lake protection grant projects.

• properly identifying environmentally sensitive areas
• identifying and delineating locally defined buffers for those areas
• clearly defining the plan's growth strategy
• establishing the sewer service area boundary
• establishing procedures for documenting potential impacts of amendments on water quality
• implementing the plan with a high level of coordination and cooperation among environmental, development and planning agencies and interests.

"208 Conformance Reviews"

Often the delegated or contractual planning agency in nondesignated areas and the designated planning agency in designated areas provides a review of local sewer extension plans and specifications to determine if the plans are in accordance with the goals and objectives of the area's "208 plan", or in nondesignated areas, the areawide water quality management plan or basin plan. Note that the basin includes the actual plan and any amendments, including nonpoint source priority watershed plans, remedial action plans, other sewer service area plans, stormwater or erosion control plans recommended by the basin plans and co-funded by the state, as well as other plans recommended by the basin plan and funded by the state. These plans, cumulatively, should provide the parameters through which conformance reviews should be conducted.

More specifically, if a sewer line is planned to cross valuable wetlands in an area funded for priority watershed project implementation and one of the goals of the priority watershed project is to maintain and restore wetlands in the watershed, the conformance review should involve an assessment of what the sewerline's impact on that goal will be. The conformance review process may recommended changes to the initial plans and specifications to avoid crossing wetlands in these sensitive areas. This type of pro-active evaluation at the local level will help avoid costly reviews and delays at the state-level.

When is Conditional Sewer Service Area Plan Approval Appropriate?

"Major areas unsuitable for the installation of waste treatment systems because of physical or environmental constraints are to be excluded from the service area. Areas to be considered for exclusion from the sewer service area because of the potential for adverse impacts on the quality of the waters of the state from both point and nonpoint sources of pollution include but are not limited to wetlands, shorelands, floodways and floodplains, steep slopes, highly erodible soils and other limiting soil types, groundwater recharge areas, and other such physical constraints."

NR 121.05(1)(g)2.c. If a site evaluation should find environmentally sensitive areas that, though not delineated, are determined to fit the NR 121definition above, then conditions to protect water quality could be added to the department sewer service area plan decision letter. The condition needs to be the difference between whether or not the area is suitable for development. Please note, the code makes no indication that the size of the water resource feature is critical to its qualification for water quality protection.

Can Development Occur in Environmentally Sensitive Areas?

A sewer service area plan regulates only sewered development. Its authority does not prohibit unsewered development from occurring in environmentally sensitive areas (though these areas may be regulated by the U.S. Army Corps of Engineers or other agencies). From time-to-time, however, sewer service area plans or amendments are proposed that would remove land from the environmentally sensitive areas designation, possibly allowing sewered development with potential adverse water quality impact. Development in certain areas may require a Clean Water Act Section 404 permit or a Wis. State Stats. Chapter 30 permit and an accompanying 'water quality certification' that the proposed action complies with NR103.

Lands removed from an environmentally sensitive areas designation should not include any areas with development constraints that would adversely impact ground water or surface water quality. For example, an amendment that removes wetlands from an environmentally sensitive area will not be approved unless it is shown that fill for development of the proposed site has received a valid federal permit and wetland water quality certification.

Sewer service area amendments must be approved by the department before the water quality planning agency can write a sewer service area plan conformance letter for a sewer extension in the area.

Environmentally sensitive area delineations sometimes include features that are not water quality related, so not every environmentally sensitive area development proposal will require a permit. The department has approved amendments to remove land not associated with water from the environmentally sensitive area designation, such as some parks and historic sites. Removal of any area from the environmentally sensitive area designation should go through the Department review process; however, areas that do not involve a water quality concern will generally be processed faster than those which require a permit.

Although a proposal to develop in an environmentally sensitive area is most likely to arise within the context of an amendment, a new plan or plan update could subtley achieve the same result by excluding certain environmentally sensitive lands from the designation. Policies developed for delineating environmentally sensitive areas and policies for the amendment review process (ie., minor versus major amendments) can have separate administrative decisions. For example, a sewer service area plan or plan update can be approved for the land area separate from the administrative decision for the associated policies. WDNR can promulgate an administrative decision on the plan's policies at a later time, after the amendment has been processed, to affect all areas not yet platted in the sewer service area boundary.

Under the provisions of NR 121, environmentally sensitive areas are delineated to protect lands where sewered development would adversely affect water quality. And as mentioned above, environmentally sensitive area designations may protect additional features as well. Environmentally sensitive areas are determined with the aid of the following sources:

• Wisconsin Wetlands Inventory photo maps
• County soil surveys
• Natural Resources Conservation Service (NRCS) soils maps, alias SCS
• Topography maps
• Shoreland zones or navigable water corridors
• Floodplains and/or floodway maps
• Field inspections
• Literature on buffers for water quality protection

Since the environmentally sensitive areas review is completed as part of the initial sewer service area plan, a separate review is not generally performed again for amendments. However, the accuracy of new sensitive areas delineations should be consistent with, or have finer-scale accuracy over, the initial plan. Environmentally sensitive areas that may be affected by development proposals should be reviewed through field inspections when actual development and/or amendments arise.

Coordinate with the Bureau of Watershed Management's Rivers and Regulations staff for environmentally sensitive area development proposals to fill, dredge, or modify lands within the wetland/shoreland zone. The water quality certification process applies to both Section 404 Clean Water Act and Wis. State Stats. Ch. 30 permit applications. Check also with the Wastewater Management Progam for coordination with possible facility planning in progress. Through good communication, and by providing the opportunity for public input, the local water quality planning agency and the department may be in agreement on the recommendation and the decision for each sewer service area plan, updated and amendment.

What Sewer Service Area Amendment Requests Are Allowed?

Amendment procedures - Every plan needs an amendment procedure section to addresses the different types of plan amendments that will be considered. Possible amendment requests include:

1. Sewer service area "swaps" add and delete equal areas of land in the sewer service area boundary for no net increase in the sewer service areaacreage.
2. Documented "population projection adjustments" are a response to unanticipated growth, or other changes, in the 20-year sewered development plan.
3. A change to the locally approved population density standard.
4. The "unique" amendment procedure allows for sewer to the occasional unanticipated public park rest room, or new factory just outside of town.
5. "Existing development" areas (and particularly those that suffer from failing onsite septic systems), can be added to the sewer service area plan if it's shown to be the cost-effective wastewater treatment alternative.
6. Redesignation of "environmental corridor" boundaries may be allowed if all applicable environmental permits are granted and it's determined that no significant adverse water quality impact is created.

Some planning agencies have proposed the use of 'Minor' versus 'Major' Amendments. The use of minor amendments is appropriate if the subject of the minor amendment involves a previously approved action by the Department, such as a revision to floodplain maps (FEMA) or Wisconsin Wetland Inventory Maps. Use of a minor amendment is also appropriate for instances in which a stream crossing is involved in installation of necessary utilities. However, use of the minor amendment process, which often involves only the local planning agency and little or no notification of the change to the WDNR, is inappropriate for changes to environmentally sensitive area designations other than for those reasons mentioned above. The Dane County Regional Planning Department has developed a document that outlines the minor versus major amendment process for envionmentally sensitive areas; WDNR supports the set of definitions Dane County has developed.

What are the Sewer Service Area Amendment Procedures?

A sewer service area plan amendment should be sponsored or initiated by either the area water quality planning agency, the local DMA that serves the area, or an entity seeking DMA status (e.g., a previously unsewered sanitary district). Amendments requested by private parties should be channeled through the appropriate local agency. A letter to the water quality planning agency with all the accompanying information necessary to determine the amendment's impact on water quality will start the procedure. It should include the following documentation:

1. Geographical location of the area, including the section, township and range, community, and county.
2. A map of the proposed amendment area (and area to be deleted if it's a "swap amendment"), showing its relationship to the existing sewer service area boundary, or location of lands designated as environmentally sensitive areas that will be excluded from sewered development. Environmentally sensitive areas should include wetlands, shorelands, floodplains or floodways, steep slopes and other areas as determined by the sewer service area plan. Maps should have adequate detail to precisely identify boundaries.
3. Description of existing and proposed land uses, population, wastewater generation and means of collection from the area. The applicant should include information indicating how the proposal relates to any adopted community land use plan(s), DOA accepted population projections, and wastewater treatment plant capabilities. Wastewater treatment alternatives and analysis of their capital and operating costs should also be discussed.
4. A stormwater management plan for the area may be required when the development's impact would create an adverse water quality impact - either a local impact or contributions to a cumulative impact.
5. Documentation that all property owners in areas proposed to be deleted (swapped) from the sewer service areawere notified of this request.
6. A copy of the public meeting announcement and a brief summary of the views expressed at the meeting(s).
7. A copy of the resolution adopted by the water quality planning agency, recommending approval of the plan amendment to the WDNR.
8. Other sewer service area plan amendment requirements as negotiated between the Department and the local water quality management agency.

The water quality planning agency may request additional information from the applicant or consult with others to obtain information related to the need and impacts of the proposed change as necessary to conduct a complete analysis of the amendment request. Following a public meeting, the local agency, usually the regional planning commission, makes a decision to approve, approve with conditions, or deny the amendment request, utilizing their local review criterion (see Amendment Review Criteria below), and they forward their decision to the WDNR.

When the department regional and central offices receive the water quality management agency letter of decision on the amendment, including their staff analysis and the information that had been submitted by the DMA, it is reviewed for conformance with NR 121. The department decision on the sewer service area plan is based on whether or not the amendment presents any significant adverse water quality impacts.

What Are the Amendment Review Criteria?

Water quality protection criteria, such as those that follow, need to be adopted to evaluate future plan amendments. And be sure that the plan itself also meets its own criteria.

Most of the following amendment review criteria are from ECRPC sewer service area plans. Sewer service area amendment approval may include conditions if they are necessary to protect water quality.

1. The amendment should be cost-effective compared to other waste treatment alternatives. This analysis may be required from the applicant.
2. The environmental impacts may be assessed in accordance with the criteria established in the WDNR environmental assessment checklist.
3. The water quality planning agency will provide a water quality impact assessment. Areas unsuitable for development (environmentally sensitive areas), must be identified and excluded from sewered development.
4. The wastewater treatment and collection systems will be evaluated for their capacity and ability to handle and treat projected flows.
5. At the option of the local community, the amendments may require consistency with locally adopted land use/transportation plans.
6. Amendments shall have a common boundary with the current sewer service area and shall not create a void within the service area. Satellite sewer service areas extended to serve an existing development that has failing onsite sewage systems may be an exception to this criteria.
7. Resource managers evaluating a site can use various plans to help them determine whether requiring specific conditions, or prohibiting sewered development, is necessary to protect water quality. Plans to reference can include the areawide water quality management plan, the existing sewer service area plan, stormwater management plans, fisheries plans and nonpoint source priority watershed plans.

SSA Plan Updates

NR 121 calls for sewer service area plan status review and a possible plan update requirement every five years. Frequent sewer service area plan amendments or a community land use plan update are other signals that a plan update is probably in order.

What if There is Opposition to a Proposed Amendment?

If the WDNR receives written opposition to a proposed sewer service area plan or amendment from an affected DMA the department may conduct the following review procedure.

1. After a thorough evaluation of the sewer service area plan or amendment the WDNR will prepare an environmental assessment (EA) of the proposal.
2. A copy of the assessment will be available for public review and comments. A news release will be issued announcing the availability of this assessment.
3. A public informational meeting may also be held to allow public input on the proposed amendment. A decision on the need for a meeting will be made after the department considers all comments, including the comments on the EA.
4. The department will make a final decision on the sewer service areaamendment after reviewing all the comments received through the EA process or the public meeting, if held. Any subsequent conformance reviews will be based on the amended plan.

What is the Decision Appeal Procedure?

The department will accept a DMA appeal of an amendment proposal that has been denied by a water quality planning agency. The department does not accept revisions or personal appeals submitted by developers, individuals or other organizations. Any person aggrieved by a department water quality management plan decision has the right to file a judicial appeal of the decision. Wisconsin Statutes and Administrative Code establish time periods within which requests to review department decisions must be filed. For judicial review of a decision pursuant to s. 227.52 and 227.53, Wisconsin Statutes, a petition for review must be filed within 30 days after service of the decision. The respondent in an action for judicial review is the department.

How Will The Plan Be Implemented?

Who's Involved in Implementation and What Do They Do? The parties involved in developing a sewer service area plan must clearly identify the steps to be taken to implement the plan. After the plan is approved, the day-to-day implementation begins. Implementation responsibilities are carried out by the various local governmental units involved, the water quality planning agency, WDNR and the Department of Commerce. Such a cooperative effort will assure that the recommendations contained within the plan are carried out and that the goals and objectives identified in the plan are not circumvented.

Water quality planning agency responsibilities

The water quality planning agency may be a designated planning agency like SEWRPC or a contractual planning agency like Brown County Planning Commission or the Rock County Planning and Development Agency. The plan should discuss how the agency will review sewer service area plan amendments, sewer extension requests, certain plumbing plans needing state approval for conformance with the water quality management plan, and holding tank septage assignments to the sewer service area wastewater treatment plant.

For more information, contact:Lisa Helmuth.