The statement of scope for this rule, SS-028-17, was approved by the Governor on March 7, 2017, published in Register 735 A2 on March 13, 2017 and approved by the Natural Resources Board on June 28, 2017. The Wisconsin Department of Natural Resources proposes an order to repeal NR 46.08, 46.15 (2) (Table), 46.16 (1) (cm), 46.17 (3) (Note) (1), 46.18 (2) (d) (Table) and (4) (a) 2., 46.19 (1) (Note) and (2), 46.21 (2) (b), 46.23 (2), 46.26, 46.30 (1) (a), (e), (f); to renumber and amend NR 46.15 (2) (intro.), 46.18 (2) (d) (intro.), (3) (b) 1., and (4) (a) 3., and 46.23 (2m); to amend NR 46.01, 46.02 (25), 46.09 (Note), 46.15 (16), and (33), 46.16 (1) (intro.), (a), (d), and (e), (2) (h), (2) (Note), (5), and (7), 46.165 (3) (c), 46.17 (1) (b), 46.18 (2) (intro.), (3) (b) 2. a., and 4., (5) (bm), (6) (Note) (1), 46.19 (1), 46.21 (2) (a) and (3) (c), 46.22 (2) and (2) (Note), 46.23 (3), 46.24 (3) (c) and 46.25; to repeal and recreate NR 46.03, 46.15 (1m), 46.17 (3), 46.18 (4) (b), 46.19 (3), 46.20 (1) and (2), 46.21 (1), 46.22 (1), and 46.23 (1); to create NR 46.10, 46.15 (15m), (17g), (17r), (20s), (21m), (26r), (30m), and (32m), 46.16 (7m) and (10), 46.17 (1) (c), (4), and (5), 46.18 (2) (g), (3) (b) 1. b., (4) (a) 3. a. and b. and (4) (a) 6. and (Note), (c), (5) (dm), (9), and (10), 46.185, 46.215, 46.22 (3) and (4), 46.23 (2m) (b) and (c), 46.27, and 46.28, relating to the managed forest law and forest crop law programs.
FR-23-16
Analysis Prepared by the Department of Natural Resources
1. Statutes interpreted:
Subch. I and VI Ch. 77, Stats. 2.Statutory authority:
3.Explanation of agency authority:
The Department is granted general authority to interpret statutory authority by s. 227.11 (2) (a), Wis. Stats. Additional authority is granted to implement and administer the Forest Tax programs in ch. 77, Wis. Stats. 4. Related statutes or rules:
None
5. Plain language analysis:
Minimum Acres and Renewals
2015 Wisconsin Act 358 increases the minimum managed forest land (MFL) forest parcel size requirement for entry into the MFL program from 10 to 20 acres. With this change, a provision was added to allow parcels that are currently enrolled but do not meet the new acreage requirement to be renewed in the program once if certain requirements are met, including all other eligibility criteria. Section NR 46.18(8) provides landowners the flexibility needed for reenrolling in the program, allowing all existing management plans to be updated by a certified plan writer in order to facilitate and streamline the renewal process. For one time renewals of parcels less than 20 acres, those parcels must be identical, as required in s. 77.82 (12) (a) 2., Stats. If such parcels contain an ineligible building or improvement, the landowner may withdraw the building or improvement site using a voluntary withdrawal under s. 77.88 (3j), Stats. To be considered identical, and eligible for renewal, the withdrawal application must be submitted before the department can approve the application for renewal. Buildings and Improvements
2015 Wisconsin Act 358 prohibits the enrollment of a parcel if it contains a building or improvement associated with a building. The definition of “building” in s. NR 46.15 (1m) was clarified to administer this provision, and provides an exception for recreational vehicles (e.g., campers and RVs). For purposes of administration, what it means to be an improvement associated with a building has also been defined in s. NR 46.15 (17r), using guidelines developed to assess improvements for purposes of taxation. With the passage of Act 358, certain exemptions from improvements were outlined, including exemptions for hunting blinds and structures and fixtures needed for sound forestry. Hunting blinds has been defined in s. NR 46.15 (17) (g). Structures and fixtures needed for sound forestry has been defined in s. NR 46.15 (30m). Clarification regarding which building rules apply to which orders, since the change affecting building rules was prospective only, was created in s. NR 46.15 (3) (b). Accessibility
2015 Wisconsin Act 358 provides that the public must be able to access any land designated as open-MFL on foot. Section NR 46.20 states that this requirement can be satisfied if the land designated as open-MFL is (1) contiguous to other public land, (2) contiguous to other land under the same ownership as the open-MFL parcel, or (3) if the landowner secures an easement or agreement that allows the public to cross neighboring lands. Additionally, to be designated as open-MFL landowners must certify that they will inform the department if their access changes and that they are aware their land may need to be closed or withdrawn if they cannot provide public access. Posting standards and map requirements in s. NR 46.21 were also updated to reflect this requirement. Additions
2015 Wisconsin Act 358 allows all MFL entries to have land added to them if certain criteria are met. Section NR 46.16 (7), interprets and clarifies the requirements for additions in s. 77.82 (4), Stats., including that the additional parcel must be at least 3 contiguous acres, must be contiguous to the existing entry, and all eligibility requirements must be met. For eligibility purposes, productivity is evaluated on the parcel as a whole (existing MFL land plus added MFL land), not just the portion being added. Furthermore, in s. NR 46.16 (5), this rule removes the requirement that qualifying contiguous land in a separate municipality to be on a separate order, now all lands eligible to be an addition can be added to an existing order. Yield and Severance Tax
2015 Wisconsin Act 358 eliminated severance and yield taxes. As a result of this repeal, references to the assessment and collection of these taxes have been repealed from this chapter of administrative code. This rule also repeals s. NR 46.16 (1) (cm) as a result of the statutory repeal of the mechanism to calculate Forest Crop Law termination tax in Wisconsin Act 358. Now that there is no termination tax, there is no reason to provide FLC landowners additional time to apply to the MFL program after a land conveyance occurs. Contracts
2015 Wisconsin Act 358 provides that department orders designating land as MFL are contracts. When a material change occurs in statute or administrative code, the department will contact landowners impacted by the change. Section NR 46.27 (2) provides the process that the department will use to contact landowners and establishes a timeline for landowner response to be eligible for withdrawal from the program without assessment of a withdrawal tax and fee following a material change. To implement the process for contacting landowners after a material change, s. NR 46.31 provides that landowners are responsible for supplying the department with updated contact information if it has changed since the time of entry, and that the department’s attempt to notify the landowner at a supplied address is considered to meet the requirement of contacting a landowner. As a result of all orders designating land as MFL being contracts, s. NR 46.18 (9) was created to clarify amendments to management plans that may need to occur during an order period for the management plan to remain in compliance with the program Department orders
To codify long-standing policy, s. NR 46.27 (1) was added to clarify when the department may issue orders to correct or alter existing MFL entries. Additionally, a long-standing policy whereby orders may be rescinded if a land sale occurs prior to the effective date was clarified in s. NR 46.16 (1) (d). Large Ownerships
2015 Wisconsin Act 358 changed a number of aspects related to MFL entries. Now that orders are considered contracts and land is eligible for withdrawals without tax and fee when certain criteria are met, it is increasingly important that more information is obtained and the program is implemented more consistently across order types. Section NR 46.16 (4) requires large ownerships to have available for department audit, information that more closely aligns to what is required for other entry types. This will allow the department to evaluate when large ownerships are eligible for certain withdrawal types. In addition, now that landowners can sell any description of land, productivity must be evaluated at the time of transfer to determine if land eligible to remain in the program. Opportunities toWithdraw Land
2015 Wisconsin Act 358 provides new voluntary withdrawal options for landowners enrolled in MFL. Section NR 46.22 (3) provides requirements for landowners who choose to voluntarily withdraw land using the construction and small land sale withdrawal type. In using this withdrawal type, landowners are responsible for following zoning requirements and providing the department with information on where the withdrawal will occur. Additionally, this provision allows landowners to use this small acreage withdrawal to rectify enforcement situations. As a result of Act 358, landowners can request to withdraw land with no penalty if the withdrawal is needed for a parcel of managed forest land to resume compliance with the MFL productivity requirements. Section NR 46.22 (4) establishes the requirements that need to be met for a landowner to use this withdrawal type. Productivity Eligibility Criteria
Changes in how productivity is evaluated as an eligibility requirement were made to address potential administrative issues that could arise as a result of the new productivity withdrawals. Specifically, s. NR 46.17 was amended to clarify that if land is part of the 80% productive portion of the entry and the land is capable of producing at the level required, but is not currently meeting the density requirements established in s. NR 46.18 (2) (d) at the time of entry, mandatory practice to address density requirements must be included in the management plan. Such practices are not eligible for a withdrawal without tax or fee based on productivity issues until restoration measures have been sufficiently attempted. The density requirement table, previously called the minimum medium density table was moved and renamed to clarify density requirements of land entered in the program. In addition to clarifications regarding what it means to be capable of producing merchantable timber at the required level, clarification was also made to the method of evaluting productive and non-productive areas within an entry. This change was made s. NR 46.18(3) (b)1., wherein non-productive areas comprising of ½ or more contiguous acres will be used in the calculation of productivity levels. Restoration
As a result of Act 358, landowners may have a period of time in which their land does not meet productivity requirements if they have a restoration plan in place. Section NR 46.215 was added to outline when restoration may be required or offered as a solution when a parcel no longer meets productivity requirements defined in s. 77.82 (1) (a) 2., before land is withdrawn from the program, without tax and fee. If it is possible for the parcel to resume productivity through restoration within a reasonable timeframe and it is an economically feasible solution, restoration practices will be required and the management plan will be amended.
