101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
Notice of Hearings
Natural Resources
Fish, Game, etc., Chs.
NR 1—
(DNR # ER-10-10)
NOTICE IS HEREBY GIVEN that pursuant to ss.
23.27 (3) (b) and
227.11 (2) (a), Stats., the Department of Natural Resources will hold public hearings on revisions to Chapter
NR 29, Wis. Adm. Code, relating to fees for providing endangered resources information to those who request it for specific authorized purposes.
The Department proposes to update fees for providing Natural Heritage Inventory (NHI) information and data to the public, establish a new expedited endangered resources review service; require education, training, experience, and an exam for requesters of detailed NHI data; establish a pilot certification program; and charge fees for training, exams, and certification to cover Department costs.
Hearing Information
The hearings will be held on:
July 13, 2010 Glaciers Edge and Gathering Waters Rms.
Tuesday DNR South Central Region Headquarters
at 11:00 a.m. 3911 Fish Hatchery Road
Fitchburg
July 14, 2010 Room 163, DNR Service Center
Wednesday 141 NW Barstow
at 11:00 a.m. Waukesha
July 16, 2010 DNR/DMV Conference Room
Friday DNR Service Center
at 11:00 a.m. 5301 Rib Mountain Drive
Wausau
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Sarah Carter at (608) 264-8968 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Fiscal Estimate and Submittal 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. Carter at the address listed below.
Comments may also be submitted via an online form at:
http://dnr.wi.gov/org/land/er/review/NR29form.asp Written comments on the proposed rule may be submitted via U.S. mail to Ms. Sarah Carter, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to
sarah.carter@wisconsin.gov. Comments may be submitted until
July 16, 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
In promulgating this rule, s.
227.11 (2) (a), Stats., has been interpreted as allowing the department the authority to develop rules to implement a program to provide natural heritage inventory information to the public. Section
23.27 (3) (b), Stats., has been interpreted as directing the department to share natural heritage inventory information and data with those who request it for specific authorized purposes.
Statutory authority
The state statutes that authorize the promulgation of this rule include section
23.27 (3) (b), Stats., and section
227.11, Stats.
Explanation of agency authority
These sections grant rule-making authority and fee establishment to the department and direct the department to make natural heritage inventory information and data available to those who request it.
Plain language analysis
Ch.
NR 29, Wis. Adm. Code, outlines mechanisms and fees for sharing Natural Heritage Inventory (NHI) information on rare species and high-quality natural communities with the public. The proposed changes to Ch.
NR 29, Wis. Admin. Code, represent recommendations made by stakeholders during a comprehensive program review conducted in 2008-2009.
Fees in Ch.
NR 29, Wis. Adm. Code, have not been updated in 20 years. The proposed rule updates fees for one-time NHI information requests (commonly referred to as Endangered Resources (ER) Reviews) from $20/hour to $75/hour, and reduces the minimum charge from three hours of staff time (currently $60) to one hour of staff time ($75). Wisconsin's proposed $75 minimum fee is low to average when compared to fees charged by other states both nationally and in the Midwest. Fees for providing access to the detailed NHI data via a formal NHI Data License are updated from a minimum of $500 to a minimum of $850, and from a maximum of $1000 to a maximum of $1500. The range in fees allows the Department to provide flexibility in costs for users depending on the format and geographic extent of the data requested.
The rule also creates a new expedited endangered resources review service to meet the needs of customers faced with very short deadlines for commencing project activities. The product is provided in a guaranteed, short timeframe (7 working days) for a higher fee: $140/hour with a minimum charge of three hours ($420). The ER Review Program has been piloting this service for the last six months. The pilot was accomplished via contract for a similar but slightly lower fee ($100/hour, $360 minimum). Based on the success of the initial pilot and consistent requests from stakeholders for this service, the Department is now proposing this change to allow Department staff to provide this service on a regular basis.
The proposed rule clarifies that users with access to detailed NHI data may be required to take training and/or an exam to ensure that they have the knowledge and skills to correctly access, interpret, apply and ensure the security of these sensitive data, and establishes that the Department may charge fees for training and exams to cover Department costs. The rule also directs the Department to establish a pilot certification program to allow external individuals with a documented biological background who demonstrate specific skills and knowledge be authorized to conduct preliminary evaluations of potential impacts of proposed projects on endangered resources. These changes are a response to training needs that have been identified consistently by both customers and Department staff, and were reiterated by stakeholders in the recent program review. Those requesting direct access to the NHI data are currently required to take online training and an exam before being provided access to the data. However, there is a need to create better and more comprehensive training to allow users to better understand, interpret, and apply these data to their specific projects and uses. There is also a need to continue to ensure that this information has been effectively conveyed and understood through completion of an exam. In anticipation of this proposed rule change, the ER Review Program has been working with two groups of stakeholders since Fall 2009 to develop the certification program. The exam, training, and certification program will all be guided by the recommendations of these two groups. More information about this initiative is available online at
http://dnr.wi.gov/ org/land/er/review/proposedChanges.asp.
Related statute or rules and plain language analysis
Section
23.27 (3) (b), Wis. Stats., requires the Department to share Natural Heritage Inventory (NHI) information with those who request it for research, educational, environmental, land management or similar authorized purposes. Ch.
NR 29, Wis. Admin. Code, outlines mechanisms and fees for sharing this information. The proposed changes to Ch.
NR 29, Wis. Admin. Code, will update fees for providing NHI information to customers to reflect the actual cost of collecting, storing, managing, compiling and providing this information and data as required by s.
23.27(3)(b), Stats. The rule will also create a new expedited endangered resources review service and establish a pilot certification program.
Fees in Ch.
NR 29, Wis. Adm. Code, have not been updated in 20 years. The proposed rule updates fees for one-time NHI information requests (commonly referred to as ER Reviews) from $20/hour to $75/hour, and reduces the minimum charge from three hours of staff time (currently $60) to one hour of staff time ($75).
It should be noted that generalized NHI information is available for free to the public on our website at
http://dnr.wi.gov/org/land/er/review/ under `Free, Online Resources'. The data are available in several formats, including printouts by township. These data are used frequently by consultants, students, land use planners, landowners, non-profit organizations, local units of government, educators, and others for a variety of purposes including research, pre-screening projects for regulatory purposes, gathering information for community/land use planning initiatives, and informing conservation and restoration efforts.
Comparison with federal regulations
The proposed rules are related to provision of information on rare species (including those classified as endangered and threatened at the state and federal levels) and high-quality natural communities. These rules do not relieve individuals from any restrictions, requirements or conditions of federal statutes or regulations related to endangered species. In fact, providing this information to the public facilitates compliance by the regulated community with existing state and federal endangered species laws.
All projects that the Department conducts, funds or approves must also be in compliance with federal and state endangered species laws. Examples include land acquisition, land and water planning and development projects, sustainable forestry certification, Managed Forest Law plan development, NEPA compliance for receipt of federal aid, and Department permit review. Because federal compliance is required for receipt of federal grants (federal Sport Fish Restoration and Pittman-Robertson funds granted to the Department totaled nearly $23 million last year), the ER Review Program has worked with the U.S. Fish and Wildlife Service to develop procedures for screening proposed projects for potential impacts to endangered resources. The foundation of the screening procedure is the NHI database. The provision of timely and accurate NHI data through the NHI Portal along with the technical support and services provided by the ER Review Program help ensure that federal grants are not held up by the US Fish and Wildlife Service for noncompliance, that all Department programs comply with state and federal endangered species laws, and that Department permits are issued in a timely manner.
We are not aware of a federal law requiring provision of information on federally protected rare species and habitats to the public. As with Wisconsin, generalized information on rare species locations in Wisconsin is available for free at the US Fish and Wildlife Service website:
http://www.fws. gov/midwest/Endangered/lists/Wisc-cty.html. However, information in this table is generalized much more broadly: species locations are generalized to the county level. In contrast, locational information for species in Wisconsin is available to the township level on the Department website at
http://dnr.wi.gov/org/land/er/review/ under `Free, Online Resources'. In addition, it should be noted that most information US Fish and Wildlife Service provides in their table comes from NHI data that the Department shares with US Fish and Wildlife Service via a formal NHI Data License.
Comparison with rules in adjacent states
Fees for provision of NHI information vary across the Midwest and across the nation. The majority of states use some variety of fee formula, usually based on an hourly rate for time needed to complete the request or a per quadrangle fee. Florida, Rhode Island, and West Virginia all charge $75/hr, with a one-hour minimum. Several other states such as Delaware and New Jersey follow this formula, although the fees range from $20 to $100/hr. Four states plus the Navajo Nation base their fees on the number of quadrangles reviewed, with charges ranging from $20 to $45 per quadrangle. New Mexico, Wyoming, and Colorado utilize a tiered fee structure, charging a base fee and adding additional charges based on variables such as whether the search returned any results, project area, number of species found, etc. All three states have a base fee of around $100; the maximum charge can range up to $25,000 in Wyoming.
Fees for NHI information in the Midwest also vary, as in the country as a whole. Illinois and Iowa both provide free reports upon request. Michigan charges a $100 base fee plus $.607/mi2, while Indiana and Ohio both charge around $50 per half hour. South Dakota charges $30 for a computer search and $30/hr for a manual search. Minnesota uses a tiered system similar to New Mexico's, charging a base fee of $60 plus an additional $30/hr or $25 for queries by species plus $5 per additional species. Wisconsin's $75 minimum fee is low to average when compared to states both nationally and in the Midwest.
Summary of factual data and analytical methodologies
The proposed rules are related to provision of information on rare species (including those classified as endangered and threatened at the state and federal levels) and high-quality natural communities. The proposed rules seek to provide information to the public facilitating compliance by the regulated community with both state and federal endangered species laws. This information is also provided to other Department staff, facilitating Department compliance with state endangered species laws (see above). These rules do not relieve individuals from any restrictions, requirements or conditions of state statutes or regulations related to endangered species.
These rules were developed with the assistance of the Bureau of Endangered Resources, Legal Services and with input from stakeholders of the ER Review Program. A group of ER Review Program stakeholders met several times between Fall 2008 and Spring 2009 to consider and recommend changes to the ER Review Program that would better serve its customers. This proposed rule change represents several changes recommended by the group. Stakeholders included other state and federal agencies, local units of government, developers, private and county forests, utilities, non-profit conservation organizations, private consultants, and others. Specific organizations represented included Alliant Energy, American Transmission Company, Madison Audubon Society, Metropolitan Builders Association, Natural Resources Consulting, Inc., The Nature Conservancy, US Department of Agriculture Natural Resources Conservation Service, We Energies, Wisconsin Department of Agriculture, Trade, and Consumer Protection, Wisconsin Towns Association, and others. Internal stakeholders were also consulted about ways to facilitate coordination across programs and shorten permit turnaround time related to the endangered resources review required for all actions that the Department conducts, funds, or approves. The Division of Forestry, Office of Energy, and Bureaus of Science Services and Watershed were represented on the internal stakeholder group. Another stakeholder meeting is scheduled for April 23, 2010 to share information about the rule process. One more stakeholder meeting will be held after the anticipated July 2010 public hearings to share input received at the public hearings with stakeholders.
Fees for providing access to the detailed NHI data (provided via a formal NHI Data License) are updated from a minimum of $500 to a minimum of $850, and from a maximum of $1000 to a maximum of $1500. Most other states do not provide external customers with direct access to the underlying NHI database (the same database used by the Department for regulatory and conservation purposes). The Department feels this is a critical service, providing trained and knowledgeable users with the detailed data they need to better protect endangered resources, often accomplished by better siting and planning projects which may cover large geographic areas (e.g., utility lines) to take into account endangered resources. The range in fees provided by the updated values allows the Department to provide flexibility in costs for users depending on the format and geographic extent of the data requested.
The rule also creates a new expedited service (Expedited ER Reviews) to meet the needs of customers faced with very short deadlines for commencing project activities. The product is provided in a guaranteed, short timeframe (7 working days) for a higher fee: $140/hour with a minimum charge of three hours ($420). Stakeholders, both internal and external, requested this service to help enable projects on very short deadlines (e.g., stimulus projects) to comply with endangered species laws. The program has been piloting this service for the last six months to provide a mechanism for quickly reviewing proposed stimulus projects. The pilot was accomplished via contract for a similar but slightly lower fee ($100/hour, $360 minimum), and quality products were provided on time to customers. Based on the success of the initial pilot and consistent requests from stakeholders for this service, the Department is now proposing this change to allow Department staff to provide this service as a regular function of the ER Review Program.
The proposed rule clarifies that users with access to detailed NHI data may be required to take training and/or an exam to ensure that they have the knowledge and skills to correctly access, interpret, apply and ensure the security of these sensitive data, and establishes that the Department may charge fees for training and exams to cover Department costs. The rule also directs the Department to establish a pilot certification program to allow external individuals with a documented biological background who demonstrate specific skills and knowledge be authorized to conduct preliminary evaluations of potential impacts of proposed projects on endangered resources. These changes are a response to training needs that have been identified consistently by both customers and Department staff, and were reiterated by stakeholders in the recent program review. Those requesting direct access to the NHI data are currently required to take online training (approximately four hours) and an exam before being provided access to the data. However, there is a need to create better and more comprehensive training targeting specific user groups to allow each to better understand, interpret, and apply these data to their specific projects and uses. And, there is a need to continue to ensure that this information has been effectively conveyed and understood through completion of an exam. In anticipation of this proposed rule change, the ER Review Program has been working with two small groups of stakeholders since Fall 2009 to develop a list of competencies, an exam, and a training plan for providing users of these data with the skills, tools, and information that they need to best use the data. One group consists of forestry users, while the second group encompasses other types of users (utilities, agencies, non-profit organizations, private consultants, and others). These groups are expected to finish their work in Fall 2010. The exam, training, and certification program will all be guided by the recommendations of these two working groups. More information about this initiative is available online at
http://dnr.wi.gov/org/land/er/review/proposedChanges.aspsarah.carter@wisconsin.gov.
Small Business Fiscal Impact
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses.
Environmental Impact
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
State fiscal effect
Increase existing revenues.
Increase costs - will not be possible to absorb within agency's budget.
Local government fiscal effect
Indeterminate.
Increase Costs — Permissive.
Types of local governmental units affected
Town, Villages, Cities, Counties.
Fund sources affected
SEG.
Affected Ch.
20 appropriations
Agency Contact Person
Sarah Carter
101 S. Webster Street
P.O. Box 7921
Madison, WI 53707-7921
Phone: (608) 264-8968
Notice of Hearing
Public Instruction
NOTICE IS HEREBY GIVEN That pursuant to ss.
119.23 (2) (a) 6. c. and
227.11 (2) (a), Stats., the Department of Public Instruction will hold a public hearing to consider emergency rules creating section
PI 35.07, relating to establishing a nonrenewable waiver from the requirement that a teacher have a bachelor's degree in order to teach in a private school under the Milwaukee Parental Choice Program.
Hearing Information
The hearing will be held as follows:
Date: July 12, 2010
Time: 1:00 - 2:00 p.m.
Location: Madison
GEF 3 Building
125 South Webster Street
Room 041
The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Robert Soldner, Director, School Management Services, (608) 266-7475 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Emergency Rule and Fiscal Estimate
Lori Slauson, Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
