Rule-Making Notices
Notice of Hearings
Justice Assistance
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.964 (16) (b) and
227.11 (2) (a), Stats., the Office of Justice Assistance (OJA) will hold public hearings at the times and places indicated below to consider the creation of Chapter
OJA 1, relating to
the collection and analysis of motor vehicle traffic stop information.
Hearing Information
Date and Time Location
April 26, 2010 Room 142 C (Student Lounge)
4:00 PM Madison Area Technical College
3550 Anderson Street
Madison, Wisconsin
April 28, 2010 Room 250, Zelazo Center
4:00 PM University of Wisconsin — Milwaukee
2419 East Kenwood Boulevard
Milwaukee, Wisconsin
The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at a hearing, please call (608) 261-7005 at least 10 days prior to the hearing date. Accommodations will be made available to the fullest extent possible.
Copies of Proposed Rule
Copies of this proposed rule are available on the Office of Justice Assistance website at
http://oja.state.wi.us/ under “Current News" or at the state administrative rules website at
http://adminrules.wisconsin.gov (search under “traffic stop"). Copies may also be obtained at no charge by making a request to Dennis Schuh, Program Director, Office of Justice Assistance, 1 S. Pinckney Street, Suite 615 Madison, WI 53703, Phone: (608) 266-7682. Email: Dennis.Schuh@ wisconsin.gov.
Appearances at the Hearing and Submission of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation, but are urged to submit facts, opinions and argument in writing as well. Comments may also be submitted using the Wisconsin Admin. Rules Website at http://adminrules. wisconsin.gov or submitted by mail addressed to the agency contact person listed above. The deadline for submitting comments to the Office of Justice Assistance is 4:30 p.m. on April 30, 2010.
Analysis Prepared by the Office of Justice Assistance
Statutes interpreted
Statutory authority
Explanation of agency authority
(11y) RULE-MAKING RELATED TO TRAFFIC STOP INFORMATION COLLECTION AND ANALYSIS. The office of justice assistance in the department of administration shall submit in proposed form the rules required under section
16.964 (16) (b) of the statutes, as created by this act, to the legislative council staff under section
227.15 (1) of the statutes no later than February 1, 2010.
Under the provisions of s.
16.964 (16) (b), Stats. as created by
2009 Wisconsin Act 28, “(t)he office shall promulgate rules relating to . . ." (traffic stop data collection, submittal, analyses and reports). “Office" is defined to mean “the office of justice assistance." s.
16.964 (1) (g), Stats.
Related statute or rule
Under
s.
349.027, Stats., the person in charge of a law enforcement agency shall “cause to be obtained" information required by the OJA rules relating to each traffic stop made on or after January 1, 2011. The person in charge of a law enforcement agency is also required to submit the information to the OJA using the process and format prescribed by OJA rules.
Plain language analysis
These rules fulfill a statutory mandate that OJA adopt rules relating to the collection of information on traffic stops by law enforcement agencies (agencies) and analysis of the collected information by OJA. By statute, the rules are to relate to:
•
The types of information that agencies must collect and the circumstances under which it must be collected;
•
The process and format that agencies must use to submit the collected information to the OJA;
•
The types of analyses that OJA will perform; and,
•
Requirements for making reports to the legislature.
Proposed ch.
OJA 1, in s.
OJA 1.03, includes definitions of terms used in the statute and rule, including “law enforcement agency," “law enforcement officer," “person in charge of a law enforcement agency employing the law enforcement officer" “race or ethnicity" and “traffic stop."
No later than June 30, 2010, the Department of Transportation and the OJA are to enter into a memorandum of understanding covering traffic stop data collection procedures, forms, procedures, costs, staffing and training. Among other things, the terms of the agreement are to minimize impact on the time and expense of law enforcement agencies. Section
OJA 1.04.
In section
OJA 1.05, the rules describe the type of information that police officers must collect relating to traffic stops, categorized as operator, occupant, event and search data. The process that law enforcement agencies must use to submit traffic stop data to the Office of Justice Assistance is set out in s.
OJA 1.06.
The types of data analysis that OJA will perform is described in s.
OJA 1.07. The analysis will be completed by the Statistical Analysis Center in OJA. The Center will analyze the traffic stop data under the tests identified in s.
16.964 (16) (a), Stats., specifically, to determine:
(a) Whether the number of traffic stops involving motor vehicles operated or occupied by members of a racial minority is disproportionate to the number of traffic stops involving motor vehicles operated or occupied solely by persons who are not members of a racial minority.
(b) Whether the number of searches involving motor vehicles operated or occupied by members of a racial minority is disproportionate to the number of searches involving motor vehicles operated or occupied solely by persons who are not members of a racial minority.
Under the rule, the analysis may also evaluate correlations between the race and ethnicity of vehicle occupants and traffic stop events such as search requests and stop duration. OJA may also note whether other factors, such as specific law enforcement strategies, may contribute to identified disproportionalities. OJA is required to identify benchmarks and other analytical tools used in preparing its reports.
All of the OJA traffic stop reports shall be filed as required by statute and published on the agency's website. Section
OJA 1.08.
Under section
OJA 1.10, a law enforcement agency that does not submit traffic stop data will be identified in OJA reports.
Comparison with federal regulations
There is no known federal law requiring the collection and analysis of data about the racial or ethnic characteristics of individuals involved in traffic stops. However, the Federal Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 23 USC s. 1906 provides guidance on local legislation. Section 1906 provides incentive funding for states to enact a law that prohibits the use of racial profiling in highway law enforcement and to allow public inspection of statistical information for each motor vehicle stop regarding the race and ethnicity of the driver and passengers.
Comparison with rules in adjacent states
Minnesota:
In 2001, Minn. Stats. §
626.951, provided for a statewide racial profiling study with voluntary participation by law enforcement agencies. Sixty-five jurisdictions participated, reporting 194,189 total stops. The 2003 report from this study analyzed one year of data collected from the sixty-five jurisdictions. The complete report is available at
http://archive.leg.state.mn.us/docs/2004/mandated/040200.pdf. According to the Minnesota study,
Law enforcement officers stopped Black, Latino, and American Indian drivers at greater rates than White drivers, searched Blacks, Latinos, and American Indians at greater rates than White drivers, and found contraband as a result of searches of Blacks, Latinos, and American Indians at lower rates than in searches of White drivers. . . . (2001 Report, p. 1)
The report includes the conclusion that the patterns of disparate treatment “. . . suggest a strong likelihood that racial/ethnic bias plays a role in traffic stop policies and practices in Minnesota."
Minnesota does not currently have a statewide law requiring law enforcement officers to collect data and prepare reports on the race of persons who are stopped or searched in a traffic stop. However, Minnesota does have a law that defines “racial profiling" and requires the chief law enforcement officer of every state and local law enforcement agency to enforce a written anti-racial profiling policy governing the conduct of officers engaged in stops of citizens. Minn. Stat. §
626.8471.
Iowa:
Iowa does not currently have a law requiring the police to collect traffic stop data that includes the race or ethnicity of vehicle operators or passengers. Between October 1, 2000 and March 3, 2002, the Iowa State Patrol collected traffic stop data from over 260,000 traffic stops. A report was prepared in April 2003, by the Iowa state Patrol and the Iowa Division of Criminal and Juvenile Justice Planning.
The 2003 Report, available at http://publications. iowa.gov/7228/1/Stop_Data.pdf, concluded, among other things, that,
Can we say whether or not ISP troopers are stopping, ticketing, searching or arresting people differently because of their race? The data in this report do not conclusively answer this question. They do give us an indication that Iowans are not more or less likely to be stopped by ISP troopers because of their race. . . .
The data in this report also do not definitively answer the question of whether or not the ISP troopers are influenced by a person's race or ethnicity when deciding whether to conduct a search or issue a warning vs. a formal sanction. The data do seem to indicate that race or ethnicity may have sometimes influenced decisions in these areas. However, such observations are only indications because a substantial number of cases had missing data and because the impact of numerous other variables that should affect such decisions is unknown (e.g. existence of outstanding warrants, severity of alleged traffic violations, visible contraband, incriminating driver or passenger behavior). (2003 Report p. 8)
Illinois:
Illinois began collecting traffic stop data and issuing annual reports on January 1, 2004. The Illinois law was substantially amended in 2008. A Racial Profiling Prevention and Data Oversight Board (Board) was created to oversee plans and strategies to eliminate racial profiling in Illinois.
The recent 2008 Illinois report based on data reported from 2,518,825 traffic stops, sought to answer two questions.
•
To what extent, if any, does race influence an officer's decision to stop a vehicle?
•
To what extent, if any, does race influence the disposition of the stop? Was a citation issued? Was the vehicle subject to a consent search?
The ratio of minority drivers stopped to the minority driving population has improved each year. That is, the percentage of minority divers stopped by the police is getting closer to the estimated driving population.
Law enforcement agencies continue to pay careful attention to this issue and many have introduced policies and procedures to correct deficiencies.
Our newest measures of post-stop performance — duration of stop — suggests that traffic stops of minority drivers consume about the same time as those for Caucasian drivers.
The number of consent searches in Illinois continues to decline, but minority drivers are still more likely to be consent searched than Caucasian drivers. Differential refusal rates do not appear to contribute to this difference.
Police officers conducting consent searches are far more likely to find contraband in a vehicle driven by a Caucasian driver than by a minority driver. While there has been a significant amount of attention devoted to this issue, there is little evidence at this point of substantial improvement. (2008 Report, p. 13)
The Illinois Act sunsets on July 1, 2010. The Illinois Board must recommend whether to continue the Illinois racial profiling study beyond July 1, 2010.
Michigan:
Michigan does not have a statewide law currently in effect requiring traffic stop data collection and analysis, although some local studies have been conducted in Michigan.
Summary of factual data and analytical methodologies
OJA utilized an advisory committee and public listening sessions in developing proposed ch.
OJA 1.
OJA appointed a 17-member Traffic Stop Data collection Advisory Committee to advise the agency with respect to this rulemaking. The committee included representatives of law enforcement (police chiefs, county sheriff, the state patrol) a police association, legislators, community representatives, the Department of Transportation, the Department of Natural Resources, the Office of the Public Defender and a civil liberties organization. The advisory committee met on September 28, 2009, October 14, 2009, November 18, 2009, December 17, 2009 and January 14, 2010. Presentations made to the committee include:
•
The Illinois Traffic Stop Study: Alexander Weiss, Ph.D. University of Illinois at Chicago Center for Research in Law and Justice.
•
Data Elements — Jerry Jansen, Criminal Justice Consultant, OJA.
•
Technology — Erin Egan, Citations & Withdrawals Section, Badger TraCS Program Manager, DOT, Division of Motor Vehicles.
•
Funding – Kathy Cushman, Citations and Withdrawals Section, DOT Division of Motor Vehicles.
•
Milwaukee Police Department Traffic Enforcement Policy and Data Analysis — Milwaukee Chief of Police Ed. Flynn.
•
Fundamental Questions and Benchmarks and a Draft Data Analysis Report Outline — Kristi Waits, Program Director, OJA Strategic Analysis Center.
•
Monitoring Stops for Biased Policing in Washington State — John R. Batiste, Chief of the Washington State Patrol.
•
Data Collection and Community Partnerships — Noble Wray, Chief of Police, Madison Police Department.
•
Local Law Enforcement Data Assessment (LLEDA), UW Report to BOTS — Joni Graves, Program Director, UW-Madison Transportation Information Center.
•
Analysis Software for Local Analysis — Greg Ridgeway, Ph.D. Director, RAND Corporation.
•
Benchmarks — Lorie Fridell, Ph.D., University of South Florida, Department of Criminology.
Listening Sessions were held by the Advisory Committee and OJA from 4 and 7 PM on November 11, 2009 (La Crosse), November 12, 2009 (Green Bay), November 18 (Milwaukee), December 1, 2009 (Rice Lake, Superior, Crandon and Keshena), and December 12, 2009 (Kenosha/Racine). At the sessions the committee and OJA heard from citizens who commented about the issue of racial profiling and traffic stops and about the traffic stop data collection project mandated by
2009 Wisconsin Act 28.
Small Business Impact
This rule does not have a significant effect on small business.
Fiscal Estimate
State fiscal effect
Increase costs, program revenue.
Local government fiscal effect
No fiscal effect.
Private sector fiscal effect
No fiscal effect.
A copy of the full fiscal estimate may be obtained from the agency contact person listed below, upon request.
Agency Contact Person
Dennis Schuh, Program Director
Office of Justice Assistance
1 S. Pinckney Street, Suite 615
Madison, WI 53703
Phone: (608) 266-7682
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs. NR 1—
Hearing Information
The hearing will be held on:
Video conference participation will be available at:
April 14, 2010 The Pyle Center
Wednesday 702 Langdon St.
at 10:00 a.m. Madison
Room 211
Communication Art Center (CAC)
UW-Stevens Point, 1101 Reserve St.
Stevens Point
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Kathy Nelson (608) 266-3545 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Submission of Written Comments
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Nelson.
Written comments on the proposed rule may be submitted via U.S. mail to Ms. Kathy Nelson FR/4 Bureau of Forest Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until April 30, 2010.
Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Sections
77.06 (2) and
77.91 (1), Wis. Stats. directs the department to establish stumpage rates on an annual basis for use in determining the severance and yield taxes assessed when timber is harvested from lands designated as forest crop land and managed forest land. New rates shall take effect on November 1 each year. Section
77.82 gives implicit authority to the department to create rules for processing petitions.
Summary of proposed rule
The proposed rule:
1.
Revises the annual stumpage rates for the period between November 1, 2010 and October 31, 2011 as required in ss.
77.06(2) and
77.91(1), Stats. The average change from the current rate is a 3% decrease in sawtimber, a 4% decrease for pulpwood, a 3% decrease for mixed products, and a 1% increase in piece products.
2. Creates an exemption for payment to f forest crop law termination taxes if land ownership changes have occurred after the original landowner received notification of forest crop law expiration and new landowner certifies intent to enter into the managed forest law program.
3. Clarifies the requirements for additions to existing managed forest law lands.
4. Amends the certified plan writer reporting requirements for plan preparation costs and requirements for making an offer to landowners for management plan writing services. Amend the department billing requirements when invoicing landowner for plan preparation fees.
5. Amends the stocking requirements for management of plantations.
Annual Stumpage Rate Adjustment:
For purposes of the Forest Crop Law (FCL) and the Managed Forest Law (MFL), this rule repeals NR 46.30(2)(a) to (g) and recreates NR 46.30(2)(a) to (h) to revise annual stumpage values used to calculate severance and yield taxes due on timber cut during the period from November 1, 2010 through October 31, 2011. One new stumpage table is created to represent stumpage values used to calculate severance and yield taxes on timber if the timber sold by weight (tons) includes both pulpwood and fine woody material. Thirteen separate zones reflect varying stumpage values for different species and products across the state.
Timber prices have steadily fallen throughout the past year, although overall prices did not fall as significantly as what was observed one year earlier. The average statewide prices for sawlogs decreased 3%, with a range of a 13% increase to a 34% decrease. The average statewide prices for pulpwood decreased 4%, with a range of a 16% increase to a 20% decrease. Prices for mixed products (mixture of sawlogs and pulpwood for red pine, white pine and spruce) have dropped 3%, with a range of a 32% increase and a 21% decrease. Piece products (posts, poles and Christmas trees) had a 1% increase in prices, with some market zones having an increase in prices of 4% to a 1% decrease.
While the statewide stumpage rates largely decreased, there are fluctuations between market zones and individual prices. Of all total 630 prices calculated, 149 (24%) increased, 198 (31%) decreased and 283 (45%) stayed the same.
The severance and yield tax collected in CY 2009 was $1,284,934. This value is 26% lower than it was in CY 2008. Timber harvest volumes are down since CY 2008 by the following amounts:
Timber Product
|
% Change
|
Cordwood
|
Down 17%
|
Fuelwood
|
Up 97%
|
Sawlogs
|
Down 20%
|
Mixed Product
|
Up 106%
|
Piece Products
|
Down 2%
|
If the same amount of timber is harvested in 2011 as was harvested in 2009, local municipalities will receive a decrease in the yield and severance tax payments by an estimated $1,500. Estimates are based on the average change in rates for private land timber sales across species and zone for each product type (cordwood, sawtimber and mixed), the volumes reported and paid for in CY 2009, and the assumption that the volume and the ratio of the cordwood and sawtimber will remain the same. Actual impact for a county and municipality will vary by the number of harvests completed and the actual species and products cut.
Amendments to minimum medium density of plantations in NR 46.02(24m) and NR 46.18(2)(d):
Stocking requirements are established to determine when lands are adequately stocked and capable of fully utilizing the site to grow forest products in a reasonable time frame. Fully stocked stands can be thinned or harvested at regular intervals, providing Wisconsin's forest products industry with valuable raw material and local municipalities with a periodic income through payment of severance and yield taxes.
The minimum medium density for plantations has been established at 600 trees per acre. Current research has shown that plantations have the ability to fully utilize the size at lower densities than was previously determined, as long as the trees are evenly distributed throughout an area. NR 46.02(24m) and NR 46.18(2) will be amended to establish the minimum medium density for a plantation at 400 trees per acre to reflect this new information.
Amendments to the managed forest law petition deadlines and management plans if petitions from owners of land entered as forest crop land are subject to an ownership change within 18 months prior to the end of the forest crop law contract period in NR 46.16(1)(cm) and NR 46.18(5)(c).
Landowners who purchase expiring forest crop law lands within 18 months prior to the expiration of forest crop law contract may be interested in enrolling in the managed forest law program. New landowners, depending upon the date of purchase, may find it difficult to meet the petition deadlines established by statute and administrative code. Forest crop law lands that are not immediately enrolled in the managed forest law are placed on the regular property tax rolls and landowners are assessed a termination tax.
NR 46.16 (1) (cm) is created to allow landowners who purchase expiring forest crop law lands within 18 months prior to the end of the forest crop law expiration the opportunity to apply for the July 1 petition deadline or later for good cause to be considered for designation effective the following January 1.
Management plans would need to be developed by certified plan writers; however management plans would not need to have been previously reviewed by the department by the deadline date of March 1. Department review of the managed forest law petition will be done according to the provisions of NR 46.18 (5).
Amendments to the requirements for additions to existing managed forest land in NR 46.16(7):
Recent changes to NR 46.16(5) required that landowners enroll lands by municipality except when lands on either side of the municipal line do not meet eligibility requirements. Changes to NR 46.16(7) will require that the same eligibility requirements apply to additions as well as new enrollments so that additions across municipal lines are done only in situations where lands cannot qualify for a new entry under NR 46.17 and s.
77.82 (1) (a), Stats.
Amendment to the format that Certified Plan Writers submit plan writing data to the department in NR 46.165(4)(f):
The method in which certified plan writers submit their plan preparation costs for work done in the previous 12 months is being amended to make it easier for certified plan writers to submit the data.
Currently, NR 46.165 (4) (f) requires that certified plan writers submit their plan preparation cost by base rate per plan plus the cost per acre. Many certified plan writers charge clients an hourly rate or a per acre rate. These certified plan writers are not able to easily determine their base rate and cost per acre.
The change to administrative code will eliminate the requirement to submit a base rate per plan.
The department collects this information in order to determine the average cost of plan writing services statewide. This average value is used to charge landowners for plan writing services on plans that the department writes.
Eliminate the requirement that offers for plan writing services must be in writing and guarantee that plans are submitted for the following July 1 deadline in NR 46.18(7)(c):
Management plans that are submitted for the July 1 petition deadline without a management plan or indicating a certified plan writer are placed on a management plan referral list. Certified plan writers are given the opportunity to offer plan writing services to landowners.
NR 46.18 (7) (c) provided that certified plan writers must submit their offers in writing and include the cost for the management plan preparation service and guarantee that an approvable plan will be completed by the following July 1. The department does not require that it receive a copy of the offer, only that a certified plan writer report that an offer has been made within 5 days of the offer under NR 46.18(7)(d).
The managed forest law statutes and administrative codes establish the eligibility and management provisions of the program, but do not establish the business practices of certified plan writers in working with private landowners. Additionally, the cooperating forester agreement (note: certified plan writers must also be a cooperating forester) states that cooperating foresters have sole control over the methods, hours worked, and time and manner of any performance under the agreement other than as expressly required by the Cooperative Agreement.
Because the department has no mechanism to insure that written offers are provided to landowners, and because the department does not direct the business practices of certified plan writers, NR 46.18(7)(c) this provision will be removed from administrative code.
Amendment of the format in which the department charges landowners for plan writing services in NR 46.18(8)(b).
The department must charge landowners a plan preparation fee that includes a base rate and a rate per acre. Changes to NR 46.165 (4) (f) to eliminate the requirement to submit a base rate per plan will require the department's billing procedure to also change. Changes to NR 46.18 (8) (b) will eliminate the base rate per plan.
Comparison of federal regulations
There are no known federal rules which apply to stumpage rates or Managed Forest Law petitions.
Comparison of rules in adjacent states
Checks with the surrounding states of Minnesota, Michigan, Iowa and Illinois indicate that while they offer some type of incentive program to forest landowners, none of the states have similar forestry practice requirements nor do they calculate annual stumpage rates for severance and yield taxes in conjunction with their programs.
Anticipated cost by private sector
For owners of land designated as managed forest law or forest crop law, there is an anticipated decrease in cost associated with the decrease in yield tax on managed forest law lands and severance tax on forest crop law lands based on the average decrease in stumpage rates proposed for both pulpwood (4% decrease) and sawlogs (3% decrease). Actual cost could be an increase or decrease depending on the specific species, product and zone.
For owners who qualify for the exemption of payment of the forest crop law termination tax, an estimated $3,000 will be saved by the owner. The estimated savings of $3,000 is based upon an average termination tax paid by owners in FY 2009. There will likely be one landowner per year who will qualify for this exemption.
Changes associated with submitting and approving management plans prepared by certified plan writers and DNR foresters will have no fiscal effect and allow additional time for plans to be written and approved.
Summary of factual data and analytical methodologies
Stumpage rate data is collected from Department Foresters and Cooperating Foresters annually. This data is used to calculate a three year weighted average for each species and product by zone. Only data obtained from private timber sales was used in the stumpage rate calculation.
wtd avg
current year minus 3
stumpage value
|
wtd avg
current year minus 2
stumpage value
|
wtd avg
current year minus 1
stumpage value
|
wtd avg
current year minus 1
stumpage value
|
_________________________________________________________________________________
# of years wtd avg stumpage values
|
____________________________________________________________________ = Stumpage Rate
2
|
(if there is a wtd avg current year minus 1 stumpage value, otherwise it's 1)
|
The current rates in NR 46.30 were compared to the proposed rates to determine the average change in rates by product.
Analysis and documentation used to determine effect on small business
A review of the law shows the impact on small business. The actual impact is dependant on the amount of timber (if any) is scheduled to be harvested on their specific land during this stumpage rate year and on the expected number of additions.
Small Business Impact
This rule will impact small businesses (i.e., farmers, landowners) that have land designated as managed forest land or forest crop land. Those involved in this voluntary program pay a reduced tax in place of the regular property tax in exchange for sound forest management on the land. When timber is harvested they pay a 5% yield tax or 10% severance tax, which is calculated using the stumpage rates established in NR 46.30. At the time of entry into these programs the owner pays for the preparation of a management plan, which includes sound forest management practices that must be completed during the order period to ensure and maintain a healthy stand of timber.
Initial regulatory flexibility analysis
Pursuant to s.
227.114, Stats., the proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:
a. Types of small businesses affected:
Any business with land enrolled in either the Managed Forest Law or the Forest Crop Law or wishing to enroll land under the Managed Forest Law.
b. Description of reporting or bookkeeping procedures required:
No procedures not already required.
c. Description of professional skills required:
No new skills are required.
Small business regulatory coordinator
The Department's Small Business Regulatory Coordinator for this rule may be contacted at quinn.williams@ wisconsin.gov or by calling (608) 266-1318.
Environmental Analysis
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
This proposed rule change addresses the annual stumpage rate changes used in the calculation of severance and yield tax collections under Forest Cop Law (FCL) and Managed Forest Law (MFL) when timber is harvested from the private lands enrolled in the programs.
Revenues to local municipalities will decrease due to a decrease in the average stumpage value for sawlogs, pulpwood, mixed products and piece products. Timber prices have steadily fallen throughout the past year, although overall prices did not fall as significantly as what was observed a year earlier. The average statewide prices for sawlogs have decreased 3%, with a range of a 13% increase to a 34% decrease. The average statewide prices for pulpwood have decreased 4%, with a range of a 16% increase to a 20% decrease. The average statewide prices for mixed products (mixture of sawlogs and pulpwood for red pine, white pine and spruce) have decreased 3%, with a range of a 32% increase to a 21% decrease. Lastly, the average statewide prices for piece products (posts, poles, and Christmas trees) have increased 1%, with a range of a 4% increase to a 1% decrease.
While the statewide stumpage rates decreased slightly, there are fluctuations between market zones and individual prices. Of the total 630 prices calculated, 149 (24%) increased, 198 (31%) decreased, and 283 (45%) stayed the same.
The severance and yield taxes collected in CY 2009 were $1,284,934. This is 26% less than the severance and yield taxes collected in CY 2008. Timber harvest volumes have also changed since CY 2008 in the following manner: pulpwood volumes decreased 17%, fuelwood volumes increased 97%, sawlog volumes decreased 20%, mixed products volumes increased 106%, and piece products volumes decreased 2%.
To estimate the fiscal impact of stumpage rate changes, the Department assumes that overall timber harvest volumes remain the same in CY 2011 as they were in CY 2009. Because of offsetting increases and decreases in timber sale revenues based on differences in market zone, wood classification, harvest volume and timber prices, the Department estimates that a net total of $1,500 less in yield and severance taxes will be collected as a result of the rate changes, which equates to a net decrease of less than 1% of revenues for local municipalities.
Amendments to the minimum medium density of plantations will have no state or local fiscal effect. The change will relieve some landowners of replanting plantations if the survival rate is 400 well-spaced tree seedlings per acre.
Procedure and process clarifications for additions of land to existing managed forest law, the provisions for certified plan writers to submit management plan preparation fee data, the removal the conditions of a written offer, and the Department's billing process will have no state or local fiscal impact.
State fiscal effect
Decrease existing revenues.
Local government fiscal effect
Mandatory decrease in revenues.
Types of local governmental units affected
Towns, Villages, Cities, Counties.
Fund sources affected
SEG.
Agency Contact Person
Kathryn J. Nelson, Forest Tax Policy Chief
Phone: (608) 266-3545
Notice of Hearings
Natural Resources
Environmental Protection — General, Chs. NR 100—
Environmental Protection — WPDES, Chs. NR 200—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.11 (2) (a),
281.15,
283.001 (2),
283.13 (5),
283.15,
283.31,
283.35 and
283.37, Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters
NR 102 and
217, Wis. Adm. Code, relating to phosphorus water quality standards criteria and limitations and effluent standards.
Hearing Information
The hearings will be held on:
April 15, 2010
at 1:00 p.m.
|
Quality Inn
668 W. Kemp Street
Rhinelander
|
April 20, 2010
at 1:00 p.m.
|
Green Bay City Hall
Council Chambers, Room 203
100 N. Jefferson Street
Green Bay
|
April 21, 2010
at 1:00 p.m.
|
Olympia Resort and Conf. Center
Crown Room
1350 Royale Mile Road
Oconomowoc
|
April 27, 2010
at 1:00 p.m.
|
Ramada Inn, Lower Ballroom
205 S. Barstow Street
Eau Claire
|
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided to qualified individuals with disabilities upon request. Please call Jim Baumann at (608) 266-9277 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Submission of Written Comments
The proposed rule revisions and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following internet site:
https://health.wisconsin.gov/admrules/public/ Home.
Written comments on the proposed rules may be submitted via U. S. mail to Jim Baumann, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to
james.baumann@wisconsin.gov. Comments may be submitted until
April 30, 2010. Written comments whether submitted electronically or by U. S. mail will have the same weight and effect as oral statements presented at the public hearings. If you do not have internet access, a personal copy of the proposed rules and supporting documents, including the fiscal estimate may be obtained from Jim Baumann, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921, or by calling (608) 266-9277.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Related statute or rule
Plain language analysis of the rule
The proposed rule has two parts. The first is a set of phosphorus water quality standards criteria for rivers, streams, various types of lakes, reservoirs and Great Lakes. The second is procedures for determining and incorporating phosphorus water quality based effluent limitations into Wisconsin Discharge Pollutant Elimination System (WPDES) permits under chapter 283, Stats. Pursuant to
40 CFR 131.11, states are required to adopt water quality standards criteria that are protective of the designated uses of surface waters. Pursuant to section 303(c)(4) of the Clean Water Act, EPA may step in and promulgate the criteria for the state, if the state does not. Development of point source permit procedures is required as part of the state's point source permit delegation agreement. EPA approval of state water quality criteria is required under
40 CFR ss. 131.5,
131.6 and
131.21.
Phosphorus Water Quality Standards Criteria
The proposed rule establishes phosphorus water quality criteria of 100 ug/l (parts per billion) for rivers specifically identified in the rule and of 75 ug/l for smaller streams and rivers. No criteria are proposed at this time for ephemeral streams or streams identified in ch.
NR 104, Wis. Adm. Code as limited aquatic life waters. Both of the criteria are intended to prevent in-stream algae and other plant growth to the extent that is detrimental to fish and aquatic life. For example, extensive algae or macrophyte (large plants growing on the beds of streams) consume oxygen during the night to the extent that may leave too little oxygen for certain fish species and for certain aquatic insects. About half of Wisconsin's rivers and streams meet the proposed criteria.
For lakes and reservoirs, the proposed rule has a suite of criteria for five different types of lake ranging from 15 ug/l for lakes supporting a coldwater fishery, such as lake trout or cisco in its bottom waters, to 40 ug/l for shallow drainage lakes and reservoirs. The criteria are intended to prevent or minimize nuisance algal blooms; prevent shifts in plant species in shallow lakes; maintain adequate dissolved oxygen in the bottom of “two-story" lakes with a warmwater fishery in top waters and coldwater fisheries in bottom waters; and to maintain fisheries. “Toxic" algae concerns may also be addressed. For millponds and similar impoundments, the upstream river or stream criteria would apply. More than half of Wisconsin's lakes meet the proposed criteria with the percent varying by lake type. No criteria are proposed at this time for marsh lakes and other wetlands since they will be part of future wetlands nutrient criteria adoption.
For the Great Lakes, phosphorus criteria are proposed for the open waters of Lake Superior (5 ug/l), the open waters of Lake Michigan (7 ug/l) and the nearshore waters of Lake Michigan (7 ug/l). Presently, for the open waters both Lake Michigan and Lake Superior are meeting the criteria. For the nearshore waters of Lake Michigan, the zone from the beaches to a depth of 10 meters, where there are concerns with the Cladophora algal mats forming on beaches, the criteria may be exceeded in some locations.
Below is a table showing the proposed phosphorus water quality standards criteria by type of water body. The specific water body types are defined in the proposed rules, and there are some exclusions based on size or flow conditions.
Proposed Phosphorus Criteria by Type of Water Body
|
Total Phosphorus in ug/l
|
Listed rivers
|
100
|
All other streams
|
75
|
Stratified reservoirs
|
30
|
Non-stratified reservoirs
|
40
|
Stratified “two-story" fishery lakes
|
15
|
Stratified drainage lakes
|
30
|
Non-stratified (shallow)
drainage lakes
|
40
|
Stratified seepage lakes
|
20
|
Non-stratified (shallow) lakes
|
40
|
Impoundments
|
Same as inflowing river or stream
|
Lake Michigan open and
nearshore waters
|
7
|
Lake Superior open and
nearshore waters
|
5
|
WPDES Effluent Standards and Limitations
The current regulations for phosphorus establish specific procedures for including technology based limitations and standards in WPDES permits (existing chapter NR 217). There is also an existing rule (s.
NR 102.06) that generally states the department may establish water quality based limits for phosphorus in permits on a case-by-case basis using an evaluation of phosphorus sources in a watershed, but this rule is being repealed and replaced with a proposed new subchapter in chapter NR 217 that includes detailed procedures for establishing water quality effluent limitations for phosphorus.
Specifically, there are provisions for determining when a water quality based effluent limitation is needed in a WPDES permit; equations and procedures for calculating effluent limits based on different types of waters and stream flow assumptions; and provisions for expressing permit compliance averaging periods, such as a monthly average. The rule requires concentration limits, as commonly used in permits. However, it also specifies where and how mass limits are required, such as for discharges to impaired waters, where there is a downstream lake and where there is a downstream outstanding or exceptional resource water. The rule also addresses the relationship and procedures for including a various types of phosphorus limits in permits such as a phosphorus limit based on a total maximum daily load, a technology based phosphorus limit and a water quality based phosphorus limit calculated under the new procedures in chapter NR 217.
The proposed rule allows the department to include compliance schedules in permits. The compliance schedule provisions specify factors the department may consider when establishing the length of a compliance schedule. One of the options for a compliance schedule provision for discharges to nonpoint source dominated waters includes an adaptive management option where interim limits may be phased in, if phosphorus concentrations improve in the receiving water.
There are also provisions for a streamlined approach for processing variances for stabilization pond and lagoon systems that mimic the procedures for ammonia variances in ch.
NR 106. These special provisions are based on the knowledge that presently there are few means to control phosphorus being discharged from these systems and that the construction of a mechanical plant is not affordable for smaller municipalities. The inclusion of streamlined procedures for stabilization pond and lagoon systems should not be interpreted to mean that these are the only systems that may obtain a variance, where appropriate. There are standard procedures for variances in statutory language and other administrative codes.
Comparison with federal regulations
The proposed phosphorus criteria for streams of 75 ug/l and rivers of 100 ug/l are similar to EPA's guidance values for the southern half of Wisconsin. EPA recommended 70 ug/l of phosphorus for both rivers and streams in the southwestern driftless area of the state and 80 ug/l of phosphorus for both rivers and streams in the remainder of the southern half of the state. EPA, did however, recommend a criterion of 29 ug/l for a band or area stretching west to east though the middle of the state and 10 ug/l for the forested northern part of the state. All of the EPA guidance numbers are based on the 25th percentile of available data from a number of states and do not represent a cause-effect situation. We could not find concentrations as low at 10 ug/l even for pristine conditions in most of the forested northern portion of Wisconsin.
For lakes, the proposed criteria that range from 15 to 40 ug/l based on the type of lake are different than EPA's guidance values that range from 9.7 ug/l for northern lakes to 36 ug/l for driftless area lakes. EPA's guidance values are based on data from multiple states and represent the 25th percentile of available data. They do not differentiate based on the type of lake.
The proposed criteria for Lake Michigan and Lake Superior are the same as the values derived for the federal Great Lakes Water Quality Agreement.
The proposed WPDES permit procedures, including water quality based effluent limitations, are based on general EPA regulations and guidelines.
Comparison with rules in adjacent states
All states, including adjacent states, are required by EPA to promulgate nutrient water quality standards criteria under EPA's Clean Water Act authority. In addition, all states delegated National Pollutant Discharge Elimination System permit authority by EPA, including all adjacent states, are required to issue point source permits that will meet water quality standards.
To date, Minnesota has promulgated phosphorus criteria for lakes which are very similar to what is proposed in this rule. Minnesota is now in the process of developing proposed criteria for rivers and streams. Illinois has had phosphorus criteria for lakes and Lake Michigan in its water quality standards for some years, but is in the process of developing phosphorus criteria for streams and rivers. Michigan and Iowa are developing criteria, but to date have not publicly proposed criteria. None of the adjacent states or Wisconsin has proposed criteria for nitrogen, except for ammonia.
All adjacent states have provisions for developing water quality based effluent limits, but none to date have proposed rules that specifically deal with the issues uniquely related to phosphorus.
Summary of factual data and analytical methodologies
The proposed water quality standards phosphorus criteria for streams and rivers are based on results of a number of Wisconsin studies aimed at determining when biotic effects occur and how these effects relate to protection of designated uses. The primary studies were jointly conducted by department and USGS staff and their results are reported in “Nutrient Concentrations and Their Relations to the Biotic Integrity of Wadeable Streams in Wisconsin", USGS Professional Paper 1722, by Robertson, Graczyk, Garrison, Wang, LaLiberte and Bannerman, 2006; and “Nutrient Concentrations and Their Relations to the Biotic Integrity of Nonwadeable Rivers in Wisconsin", USGS Professional Paper 1754, by Robertson, Weigel and Graczyk, 2008. These studies identified a suite of breakpoints or thresholds for effects of phosphorus on algae, aquatic insects and fish. Based on discussions involving a number of experts in the scientific field, the department used an averaging method of the suite of breakpoints to derive the proposed criteria. These proposed criteria were compared to Department studies of trout streams in southwestern Wisconsin, the early 1980's Department study of phosphorus in streams and studies cited in EPA's “Nutrient Criteria Technical Guidance Manual: Rivers and Streams", EPA-822-B-00-002, 2000.
The proposed water quality standards phosphorus criteria for lakes and reservoirs are based on methods commonly used for decades in lake management in Wisconsin and adjacent states. Specifically, for most types of lakes, the proposed criteria are based on limiting the risk of nuisance algae conditions (20 ug/l chlorophyll a) to no more than 5 percent of the time (e.g. less than one week per year from June though September) using work by Walmsley (Journal of Environmental Quality, 13:97-104, 1988) and Heiskary and Wilson (“Minnesota Lake Water Quality Assessment Report: Developing Nutrient Criteria", Minnesota Pollution Control Agency, September 2005). These concentrations were also determined to be sufficient to protect sport fisheries in lakes again using information from Heiskary and Wilson (“Minnesota Lake Water Quality Assessment Report: Developing Nutrient Criteria", Minnesota Pollution Control Agency, September 2005). For the relatively few lakes that support a cold water fishery in the lower waters, the department's objective was to maintain 6 mg/l for dissolved oxygen in the lower waters. To determine the appropriate phosphorus concentrations, the Department examined sediment cores and current water concentrations to determine undisturbed conditions. The proposed criteria were compared to literature information summarized in EPA's “Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs", EPA-822-B-00-001, 2000.
For development of the water quality based effluent limitation procedures for permits, the department reviewed existing state and federal regulations and guidance for the point source discharge permit programs, consulted with EPA representatives, and received input from a technical advisory committee that met several times in 2008 through 2009. The technical advisory committee was comprised of representatives of municipal and industrial wastewater dischargers, municipal storm water dischargers, agricultural interests, water user groups and environmental groups. Staff from EPA and USGS also attended committee meetings as advisories to the committee and the Department.
Analysis and supporting documents used to determine effect on small business
The Department initially identified cheese and other dairy operations that discharge wastewater containing phosphorus to lakes and streams as small businesses potentially impacted by the proposed rules. With the assistance of the Wisconsin Cheese Makers, 11 businesses were identified for analysis. All 11 are likely to have more than $5 million in annual revenue, but may have less than 25 employees. Of the 11, six apply wastes to the land through a variety of methods. Some may discharge non-contact cooling water without adding additives, which would not come under this rule. The other six discharge their wastes to municipal wastewater treatment plants.
Based on this analysis, the Department concluded that there are few, if any, small businesses that directly discharge of wastewater containing phosphorus to lakes or streams. If there is an effect, it would likely be an indirect affect on those small businesses that discharge their wastes to a municipal wastewater treatment facility. If the municipal wastewater treatment plant is required to further remove phosphorus, it is possible that the service fee may increase or the municipality may require some level of pretreatment.
Small Business Impact
The department has determined the rule will not have a significant impact on small businesses. Most of the fiscal impacts from the proposed rules will affect municipalities and industries (with phosphorus discharges to surface waters) that aren't considered small businesses. The rule may have an effect on a few small businesses, but it is very difficult to estimate. As mentioned above, small cheese factories may be the best example. For those meeting the definition of a small business, many of the facilities land apply all or the majority of their wastewater, and therefore will not be impacted by these rules. If there are any businesses that discharge wastes directly to surface waters that meet the definition of a small business, they may apply for a variance if compliance with water quality based effluent limits for phosphorus would cause significant economic hardship. The proposed rules do not provide for less stringent reporting, longer compliance schedules or completed exemptions for small businesses with phosphorus discharges to surface waters because it would not be allowed under federal regulations or state statutes. There is, however, a variance procedure which is allowed under both state and federal law for all point sources that qualify. Reporting and record keeping requirements are established through permit terms and conditions.
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code.
Fiscal Estimate
State fiscal effect
Increase costs — may be possible to absorb within agency's budget.
This rule package has no impact on state revenues; however, the Department would incur costs associated with WPDES permits to implement the provisions of the rule package. An ongoing workload equivalent to about 2.0 FTE statewide is projected for at least five to ten years. Wastewater engineer positions will develop effluent limitations, including consideration of TMDL wasteload allocations, review of variance requests, development of compliance schedules, etc. The workload estimate is based on 100 permits per year at about 40 hours per permit with five years to complete an initial cycle of permit reissuances. Salary and fringe costs are estimated at $220,000 per year (4,000 hours x $35hour salary + 48.59% fringe+ travel and supplies).
Fund sources affected
GPR.
Affected Ch.
20 appropriations
Local government fiscal impact
Increase costs.
The proposed rule package will result in compliance costs for a number of municipal and other publicly owned wastewater treatment facilities. These costs may be in the form of capital expenditures, increased operation and maintenance costs, or both, and will vary considerably by municipality or sanitary district. For some facilities, no additional costs will be needed since they discharge to streams and rivers and already meet the phosphorus criteria. For up to an estimated 163 facilities, the addition of filtrations processes may be needed and a substantial cost could be incurred. The Department estimates that municipalities and sanitary districts will incur costs of between $300 million and $1.13 billion to comply with the provisions in the rule package. Costs per unit of phosphorus removed are much lower for larger facilities than for smaller facilities. Furthermore, it should be noted that the estimated cost range does not take into account the possibility that some municipalities and sanitary districts may need to acquire land for locating additional wastewater treatment facilities, and thus incur the corresponding land acquisition costs.
There are a number of factors that could push the costs toward the low end of the range, or even lower. These mitigating factors include nonpoint source control that lessen the need for point source control of phosphorus either in general or through implementation of TMDLs. Other factors include economic variances that limit the degree of control to affordable levels, emerging technology that may lower costs, and pollutant trading. The low end of the range may also be overstated to the extent that facilities have already upgraded their treatment plants and/or treatment processes and have thus already incurred some of the costs.
Types of local governmental units affected
Towns, Villages, Cities, Sanitary districts.
Private sector fiscal impact
The proposed rule package will result in compliance costs for a number of industrial wastewater facilities. These costs may be in the form of capital expenditures, increased operation and maintenance costs, or both. The paper industry and the food processing industry would be most affected. The Department estimates that up to 35 facilities could have stringent effluent limitations. Those discharging wastes to municipal wastewater treatment plants may also face increased service fees. Similar to local governmental entities, there is a great degree of variability in the costs that would be incurred. The Department estimates the cost range to be between $80 million and $440 million. The same mitigating factors described above for local governmental entities will push costs toward the lower end of the range for private sector facilities.
Long-range fiscal implications
The fiscal impact on local governments and industries will likely be spread over a 10 to 20 year period with less costly interim limitations being imposed in the initial five to ten years and the more stringent limits being phased in primarily in the 10 to 20 year period.
Agency Contact Person
Jim Baumann
Department of Natural Resources
P. O. Box 7921
Madison, WI 53707-7921
Phone: (608) 266-9277
Notice of Hearing
Natural Resources
Environmental Protection — Water Regulation, Chs. NR 300—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.16 and
227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on emergency rules and proposed permanent rules revising Chapters
NR 335 and
336, relating to implementation of the Municipal Dam Grant Program and the Dam Removal Grant Program.
The proposed revisions relate to providing grants for dam safety projects for municipally owned dams, grants for any dam owner to removal a dam they no longer want to maintain and any person to removal an abandoned dam as provided under s.
31.385, Stats.
Hearing Information
Date and Time Location
April 15, 2010 WI DNR Building (GEF 2)
Thursday Room 413
at 1:30 PM 101 S. Webster Street
Madison, WI
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Eileen Trainor in writing at the Department of Natural Resources, Bureau of Community Financial Assistance (CF/2), 101 S Webster, Madison, WI 53707; by E-mail to
eileen.trainor@wisconsin.gov ; or by calling (608) 267-0848. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Copies of the Emergency Rule, Proposed Permanent Rule and Fiscal Estimate
The emergency rule, proposed permanent rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link provided on the Municipal Dam Grant Website at
http://dnr.wi.gov/org/caer/cfa/Grants/dammaint. html. If you do not have Internet access, a printed copy of the emergency rule, proposed permanent rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Eileen Trainor, Department of Natural Resources, Bureau of Community Financial Assistance (CF/2), 101 S. Webster St, Madison, WI, 53703, or by calling 608.267.0848.
Submission of Written Comments
Comments on the proposed rule must be received on or before Friday, April 16, 2010. Written comments may be submitted by U.S. mail, fax, or E-mail and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Meg Galloway
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone: (608) 266-7014
Fax: 608.267.2800
Analysis Prepared by Department of Natural Resources
Statute interpreted
Statutory authority
Explanation of agency authority
Section
227.11 (2) (a), Stats., gives state agencies general rule-making authority. Section
31.385 (1m), Stats., directs the department to promulgate rules to administer a financial assistance program for dam safety projects and s.
31.385 (4), Stats., directs the department to promulgate rules to establish a dam grant inventory and notice and hearing procedure to place dams on the inventory. The rules must provide grants to municipalities and Lake Districts for maintenance, repair, reconstruction, and removal of dams, to private dam owners for the removal of their dams and any person for the removal of abandoned dams.
Related statute or rule
These rules assist the department in achieving the statutory goals of Chapter
31, Stats., which vests the Department with the responsibility to regulate dams and promote safety and protect life and property from unsafe dams. The grant programs provide funding to dam owners to address safety deficiencies at dams. There are no other similar rules that address these issues.
Plain language analysis
The objectives of the revisions to ch.
NR 335 and ch.
NR 336 are to implement changes to enabling legislation. The rule changes can be divided into two broad categories:
•
Incorporate statutory changes into the existing grant codes:
⍽ increases the maximum level of state contribution allowed under the grant programs from $200,000 to $400,000
⍽ varies the state contribution percentage for dam repair and reconstruction projects, depending on the size of the projects
⍽ increases the percentage of state contribution to 100% up to the maximum grant award for dam removal projects
⍽ eliminates statutory definition of “small dam" for dam removal grants
⍽ provides for an inventory of dam safety projects with a notification for dam owners
⍽ changes the definition of large dam to match change in s.
31.19, Stats.
⍽ allows for cost effective, non construction activities that increase the safety of a dam
•
Facilitate investing the $4 million allocation of bonding for the program
⍽ grants greater flexibility for implementation of a grant application cycle
⍽ adjusts code timelines and better defines application requirements to address past implementation difficulties and assure more applications can be deemed complete
⍽ sets additional criteria for ranking applications and allows for adjustment to the ranking procedures outside of Administrative Code process
⍽ allows for the addition of a variance clause which would facilitate the implementation and administration of NR 335
⍽ makes it easier applicants to the Municipal Dam Grant program to pair the grant with other, outside funding sources
⍽ corrects incorrect definitions and statute citations
⍽ clarifies that state agencies may use the grants to remove abandoned dams
⍽ clarifies that an owner can only submit one application at a time per dam for funding under NR 335 and cannot get a grant for the same dam under NR 335 and NR 336 in the same year
Comparison with federal regulations
The U.S. Department of Agriculture, Natural Resource Conservation Service (NRCS) has a cost sharing program for the rehabilitation of dams built under Public Law 566. Funding for this federal program is limited but if a dam owner is successful in obtaining funding from both programs the state grant would help the county pay their 35% local cost share requirement under the federal program. There are also a number of federal programs which fund dam removal and stream restoration, including programs from U.S. Fish and Wildlife Service, NRCS and the National Oceanic and Atmospheric Administration. These programs have been used in conjunction with grants awarded under NR 336 in the past. The programs are complimentary and pairing of the finding sources allows grant funds to go toward more projects.
Comparison with rules in adjacent states
No similar programs in Illinois, Iowa, Michigan and Minnesota.
Summary of factual data and analytical methodologies
None.
Analysis and supporting documents used to determine the effect on small business
No formal analysis was completed as the existing rule does not significantly impact small business, therefore the propose revisions to the rules will have not impact to small business.
Preparation of an economic impact report was not requested.
Small Business Impact
The proposed rule revisions are not expected to have a significant economic impact on small business because no new regulations are imposed on them. If a small business did own a dam the rules provide an opportunity for financial assistance for removing the dam if the business chose to do so.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate
Summary
The proposed changes incorporate recent changes with no fiscal impact to state and local governments, and no anticipated significant fiscal impact to the private sector.
State fiscal effect
No state fiscal effect.
The 2009-2011 Budget Bill,
2009 Wisconsin Act 28, did not provide additional staff or funding for administering the dam grant programs, therefore, the costs associated with handling the additional demand for dam grants will be absorbed with existing staff and within the existing budget. It is assumed that the $4 million in bonding will be allocated as soon as possible. Assuming an 8% annual amortization rate, the allocation of the bonding will result in an annualized costs of $320,000 in bonding repayments. However, these costs will occur regardless of the action on this rule package, so these costs are included in this fiscal note for information purposes only.
Local fiscal effect
Decrease costs; permissive.
The rule package makes it easier for municipalities, lake districts, and persons who own the dam to leverage grant funds and thus provides a greater financial incentive to apply for grants.
Types of local governmental units affected
Towns, Villages, Cities, Counties, Lake Districts, Tribes.
Agency Contact Person
Meg Galloway
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone: (608) 266-7014
Fax: 608.267.2800
Notice of Hearing
Natural Resources
Environmental Protection — Air Pollution Control, Chs. NR 400—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.16 and
227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed amendments to sections
NR 433.05 and
433.06, relating to implementation of best available retrofit technology for the protection of visibility in mandatory class
I federal areas. The proposed amendments relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s.
285.11 (6), Stats., will be revised.
Hearing Information
Date and Time Location
April 26, 2010 WI DNR Building (GEF 2)
Monday Room G09
at 1:30 PM 101 S. Webster Street
Madison, WI
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53703; by E-mail to
Robert.Eckdale@wisconsin.gov; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Copies of the Proposed Rule and Fiscal Estimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at
http://www.dnr.state.wi. us/air/rules/calendar.htm. A printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St, Madison, WI, 53703, or by calling (608) 266-2856.
Submission of Written Comments
Comments on the proposed rule must be received on or before Friday, May 7, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Tom Karman
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone: 608 264-8856
Fax: 608.267.0560
E-mail:
thomas.karman@wisconsin.gov
Analysis Prepared by the Department of Natural Resources
Statute interpreted
Section
285.11 (6), Stats. The State Implementation Plan developed under s.
285.11 (6), Stats., is revised.
Statutory authority
Explanation of agency authority
Section
227.11 (2) (a), Stats., gives state agencies general rulemaking authority. Section
285.11 (1), Stats., authorizes the Department to develop rules consistent with ch.
285, Stats. Section
285.11 (6), Stats., authorizes the Department to develop and revise the State Implementation Plan for prevention, abatement and control of air pollution.
Related statute or rule
None.
Plain language analysis
The proposed rule modifications pertain to ch.
NR 433 which regulates Best Available Retrofit Technology (BART) for the protection of visibility in mandatory class I federal areas. These BART requirements pertain to controlling emissions of particulate (PM), nitrogen oxides (NOx) and sulfur dioxide (SO
2) from certain stationary sources which cause or contribute to impairment of visibility.
The rules for Best Available Retrofit Technology currently require the owner or operator of a source, which has been determined to be subject to BART controls, to have those controls in place and operating "as expeditiously as practicable" but no later than December 31, 2013. The Department is proposing to extend the final allowed compliance date to December 31, 2015. The extended compliance date provides additional time for sources which are undergoing significant installations of control equipment, particularly in the case of a source implementing controls for multiple pollutants or emissions units. Extending the final compliance date to December 31, 2015 does not relax the requirement for controls to be in place as expeditiously as practicable.
The Department also proposes to clarify and to provide additional flexibility to the averaging provisions in the rule. The additional flexibility allows an owner or operator of a BART affected source to submit a proposed emissions averaging plan at any time, not just during the initial BART determination process.
Comparison with federal regulations
The Board initially established ch.
NR 433 in January 2008 to satisfy BART requirements set forth by the US Environmental Protection Agency (EPA) under the regional haze regulation published July 6, 2005 Federal Register (70 FR 39104). In that regulation the US EPA required all states to develop programs to assure reasonable progress toward meeting the national goal of preventing any future, and remedying any existing, impairment of visibility in mandatory Class I Federal Areas resulting from manmade air pollution. The application of Best Available Retrofit Technology (BART) on certain stationary sources is one of the core requirements for the implementation plan for regional haze.
Comparison with similar rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota have adopted the same approach in meeting BART requirements for industrial sources as Wisconsin. These states have identified BART eligible sources and are moving forward with the determination of applicable control requirements according to US EPA criteria.
Summary of factual data and analytical methodologies
The proposed rule modifications are the result of issues identified during the initial implementation of the BART rule requirements in Wisconsin. The Department found that facilities needed extra time to comply with BART requirements, particularly facilities that need multiple control equipment installations and those facilities facing multiple state and federal requirements for the same sources. Additionally, the Department found, during application of the trading requirements, certain provisions to be confusing or needing clarification.
Analysis and supporting documents used to determine the effect on small business
No small business is subject to BART controls under the existing BART rules. Therefore the proposed rule modifications have no direct effect on small business.
Small Business Impact
There is no direct effect on small business.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate
The proposed rules have no fiscal effect on state and local government, and no significant fiscal effect on the private sector. The proposed revisions to ch.
NR 433 do not alter which sources are subject to BART, the required level of emission control, or final compliance requirements under the Wisconsin BART rules. Based on this premise, there is no change anticipated for the fiscal cost of implementing the BART rule.
Agency Contact Person
Tom Karman
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone: 608 264-8856
Fax: 608.267.0560
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.14 (1) (a),
85.16 and
227.11, Stats., the Department of Transportation will hold a public hearing to consider the repeal of sections
Trans 196.04 (1) (d) and
250.04, and the creation of Chapter
Trans 198, Wis. Adm. Code, relating to motor vehicle convenience fees.
Hearing Information
The hearing will be held:
April 21, 2010
at 11:00 a.m.
|
Hill Farms State Transportation Bldg.
Room 144-B
4802 Sheboygan Avenue,
Madison, WI
|
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Carson Frazier at (608) 266-7857 with specific information on your request at least 10 days before the date of the scheduled hearing. Accommodations such as interpreters, English translators, or materials in alternative format will, to the fullest extent possible, be made available upon a request from a person with a disability to accommodate your needs.
Submission of Written Comments
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at (608) 266-7857.
Copies of Proposed Rule
A copy of the rule may be obtained upon request from Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at (608) 266-7857 or via e-mail: carson.frazier@dot. state.wi.us. Copies will also be available at the hearing.
Analysis Prepared by the Department of Transportation
Statutes interpreted
Statutory authority
Explanation of agency authority
The Wisconsin Department of Transportation is authorized to accept payment by credit card, debit card, or any other electronic payment mechanism for a fee for certain motor vehicle products or services and to establish a convenience fee charged for any transaction so paid, pursuant to s.
85.14 (1) (a), Stats.
Related statute or rule
Plain language analysis
Section
85.14, Stats., as amended in
2009 Wis. Act 28, allows the Department to accept payments by credit card, debit card, or any other electronic payment mechanism for fees required to be paid to the Department under chs.
194,
218,
341,
342,
343, or
348, which are motor vehicle statutes.
Section
85.14, Stats., permits the Department to charge a convenience fee in an amount to be established by rule. The convenience fee shall approximate the cost to the Department for providing this service to persons who request it.
The proposed rule establishes the convenience fee. The proposed rule provides that the Department will determine the fee annually or as the Department determines necessary due to changes in fees that the Department may be required to pay the Enterprise Bank. The Department will determine the convenience fee in consultation with the State Controller's Office (which is responsible for managing the State's contract for Enterprise Banking Services). The Department will publish the fee on its internet web site and in relevant communication material with customers eligible to use these payment methods.
The convenience fee is established either as a percentage of the total transaction amount or as a flat fee specified for ranges of transaction amount. The convenience fee will cover the fee that the Department pays the Enterprise Bank or other vendor for processing, merchant fee, and any associated cost to provide the service. The proposed rule provides that the Department may refuse to accept credit cards, debit cards, or other electronic payment mechanisms issued by or offered by certain companies. The proposed rule allows the Department to establish a minimum transaction amount that may be paid by credit or debit card or other electronic payment mechanism.
The proposed rule consolidates treatment of all Division of Motor Vehicles transactions for which credit card, debit card, and other electronic payment methods apply, and the associated convenience fee. Therefore, the proposed rule repeals the provisions that are currently established as ss.
Trans 196.04 (1) (d) and
250.04, and consolidates those convenience fees into the convenience fee structure applicable to all Division of Motor Vehicle products and services.
Comparison with federal regulations
No federal rules apply.
Comparison with rules in adjacent states
Michigan:
Michigan accepts Discover and MasterCard at some DMV offices for in-person transactions, and for some on-line transactions. The customer pays a 2% convenience fee.
Minnesota:
Minnesota does not accept credit or debit cards.
Illinois:
Illinois accepts Discover, MasterCard, and American Express for in-person transactions. For on-line transactions, Illinois accepts VISA also. The customer pays a convenience or “process" fee.
Iowa:
Iowa is currently implementing credit cards at the stations. The customer will pay a convenience fee that may be a flat fee based on average transaction amount, assumed distribution of card types, and assumed number of transactions.
Summary of factual data and analytical methodologies
The Department proposes to establish convenience fees that are as uniform as possible among different types of transactions. The convenience fee amount must approximate the cost to the Department of providing electronic payment option.
The Department's on-line payment process is provided through the Enterprise Banking Services Contract. Agencies are parties to the contract. The Department pays the Enterprise Bank a fee for processing each payment. The fee consists of both payment to the Enterprise Bank and payment to the card-issuing bank. The Department's costs for in-person transactions may vary from on-line transactions, because the Department will require additional equipment, installation and maintenance, to accept in-person card payment. Therefore, the proposed rule allows the Department to establish a different convenience fee amount for in-person transactions and on-line transactions.
Analysis and supporting documentation used to determine effect on small businesses
The Department offers electronic transactions to most businesses using standard Automated Clearinghouse payment procedures. These procedures are currently in place and most businesses already participate. Moreover, businesses as well as individuals may continue to pay Department fees by check or cash; payment by methods that require a convenience fee is voluntary.
Small Business Impact
The Department concludes that there is no effect on small business as a result of this rule.
Fiscal Estimate
The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands.
Anticipated costs incurred by private sector
The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities.
Agency Contact Person
Ms. Carson Frazier
DOT — Bureau of Vehicle Services
Room 253, P. O. Box 7911
Madison, WI 53707-7911
Phone: (608) 266-7857
