Chapter NR 162

NR 162.15(1) (1) Decision of the department. Except as otherwise provided by law, any dispute arising under subch. II, III, IV, or V prior to the execution of a financial assistance agreement or interest rate subsidy agreement shall be decided in writing by the department. The department shall serve a copy of the decision on the applicant personally or by mail.

NR 162.15(2) (2) Review of the decision. A final decision of the department may be reviewed under subch. III of ch. 227, Stats., and ch. NR 2.

NR 162.15 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.16 NR 162.16 Records and record retention.

NR 162.16(1) (1) Requirements. The recipient shall maintain CWFP project-related books, documents, papers, records, and accounting procedures in accordance with generally accepted accounting principles, governmental accounting standards board requirements, or another method of accounting accepted by the department or required by the federal government and authorized under the financial assistance agreement and ch. Adm 35, and retain them in accordance with subch. II of ch. 19, Stats. The recipient shall require contractors, including contractors for professional services, to maintain CWFP project-related books, documents, papers, and records that are necessary for the recipient’s compliance with this section.

NR 162.16(2) (2) Inspection. The department or its agents may, during normal business hours, inspect and copy the recipient’s CWFP project-related records and the project-related records of its contractors.

NR 162.16(3) (3) Records retention.

NR 162.16(3)(a) (a) The recipient and its contractors shall retain and make all files, books, documents, and records relating to the construction of the scored project available to the department for a minimum of either 3 years from the date the department notifies the recipient that the project closeout is complete or 3 years from final completion of construction, whichever is later.

NR 162.16(3)(b) (b) If a financial assistance agreement is partially or completely terminated, the records relating to the work terminated shall be kept and made available for a period of 3 years from the date of any resulting final termination settlement.

NR 162.16(3)(c) (c) Records that relate to appeals, disputes, or litigation arising out of the performance of the project shall be retained until any appeals, disputes, or litigation have been finally resolved or for a period of 3 years from the date the department notifies the recipient under s. NR 162.13 (4) (b) 8. that the project closeout is complete, whichever is later.

NR 162.16(3)(d) (d) All other files and records relating to the scored project shall be retained so long as the financial assistance agreement for the project remains in effect. As-built plans for the project shall be retained for at least the useful life of the project.

NR 162.16(4) (4) Federal single audit. Recipients of financial assistance provided directly from the federal capitalization grant shall comply with federal single audit requirements established in 31 USC 7501 to 7506, 2 CFR part 200 subpart F, and ch. Adm 35.

NR 162.16 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.17 NR 162.17 Breach of contract.

NR 162.17(1) (1) Upon breach of contract by the recipient, the department may do any of the following:

NR 162.17(1)(a) (a) Declare the unpaid loan balance due and immediately payable.

NR 162.17(1)(b) (b) Increase the interest rate on the unpaid balance of the loan to the market interest rate in effect on the date the financial assistance agreement was executed.

NR 162.17(1)(c) (c) Rescind any grant and convert the grant amount to a loan.

NR 162.17(1)(d) (d) Immediately terminate the financial assistance agreement and disburse no additional funds if the financial assistance has not been fully disbursed.

NR 162.17(1)(e) (e) Seek an injunction or any other equitable or judicial relief from a court of appropriate jurisdiction.

NR 162.17(1)(f) (f) Seek any other appropriate administrative remedy.

NR 162.17(2) (2) DOA’s receipt of any payment after the occurrence of a breach of contract does not constitute the department’s waiver of any rights and remedies under this section.

NR 162.17 Note Note: DOA may under s. 281.59 (11) (b), Stats., seek recovery of some or all financial assistance payments by deducting those amounts from any state payments due to a municipality, or by adding a special charge to the amount of taxes apportioned to and levied upon the county under s. 70.60, Stats.

NR 162.17 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.18 NR 162.18 Noncompliance. Upon failure of the recipient to comply with s. 281.58 or 281.59, Stats., or with provisions of this chapter, the department may do any of the following:

NR 162.18(1) (1) Refuse to enter into a financial assistance agreement.

NR 162.18(2) (2) Seek penalties as provided in s. 281.59 or 281.98, Stats.

NR 162.18(3) (3) Seek any other appropriate remedy, relief, or penalty.

NR 162.18 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.19 NR 162.19 Variances.

NR 162.19(1) (1) General. The department may, on its own initiative or pursuant to a written request from an applicant, approve a variance from a requirement of this chapter when it determines that special circumstances make a variance in the best interest of the state. Any variance approved shall be consistent with the objectives of ss. 281.58 and 281.59, Stats.

NR 162.19(2) (2) Applicability. The department may only approve a variance from a non-statutory requirement of this chapter.

NR 162.19(3) (3) Request for variance. An applicant shall submit a request for a variance in writing to the department as soon as it is determined a variance is needed. Each request for a variance shall contain all of the following:

NR 162.19(3)(a) (a) The name of the applicant and CWFP project number.

NR 162.19(3)(b) (b) The section of this chapter from which the applicant seeks a variance and a statement explaining why the variance is necessary.

NR 162.19(3)(c) (c) An adequate description of the variance desired, and the facts that the recipient believes warrant the department’s approving the variance.

NR 162.19(3)(d) (d) A statement as to whether the recipient has previously requested the same or a similar variance, and if so, the circumstances of the previous request.

NR 162.19 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.20 NR 162.20 Administrative fees. An administrative fee, if one is imposed, shall be included in the biennial finance plan established under s. 281.59 (3), Stats., which is approved by the building commission under s. 13.48, Stats.

NR 162.20 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

subch. III of ch. NR 162 Subchapter III — Storm Water Projects

NR 162.21 NR 162.21 Applicability. This subchapter applies to applicants for and recipients of financial assistance for urban nonpoint source water pollution abatement or storm water runoff BMPs. Compliance with the applicable requirements of this subchapter is a prerequisite to receiving a financial assistance agreement under the CWFP for urban runoff and storm water BMP projects. In addition to the sections of this subchapter, all of the following sections in subchs. I, II, and V apply to projects receiving a financial assistance agreement from the CWFP for urban runoff and storm water BMP projects: ss. NR 162.001, 162.003, 162.01, 162.02, 162.055, 162.49 (3), and 162.50 to 162.52.

NR 162.21 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.22 NR 162.22 Project eligibility.

NR 162.22(1) (1) A municipality may receive financial assistance under this subchapter for a publicly owned project necessary to control storm water runoff pollution in order to achieve water quality standards, including publicly-owned storm water management projects on public or private land that are required by any of the following:

NR 162.22(1)(a) (a) A WPDES storm water permit issued under subch. I of ch. NR 216.

NR 162.22(1)(b) (b) A performance standard delineated under ch. NR 151.

NR 162.22(1)(c) (c) A storm water management plan or other applicable plan approved by the department for purposes of managing runoff.

NR 162.22(2) (2) A project that is eligible under sub. (1) may consist of individual BMPs on private land that treat runoff and serve one or more private properties if the municipality satisfies all of the following:

NR 162.22(2)(a) (a) Owns each individual BMP.

NR 162.22(2)(b) (b) Is responsible for the proper installation, operation, and maintenance of each individual BMP.

NR 162.22(2)(c) (c) Has unlimited access to each individual BMP at all reasonable times for the purposes of inspection, monitoring, construction, maintenance, operation, rehabilitation, and replacement of the BMP.

NR 162.22(2)(d) (d) Establishes a comprehensive program for the regulation, inspection, operation, and maintenance of individual BMPs and for monitoring the impact of the BMPs on the groundwater where required by the department.

NR 162.22(2)(e) (e) Complies with all other applicable requirements, limitations, and conditions for projects funded under this chapter.

NR 162.22(3) (3) The access required under sub. (2) shall be established through easements, ordinance, or covenants running with the land.

NR 162.22(4) (4) The department may require that the program established under sub. (2) (d) includes periodic testing of water from existing potable water wells and monitoring of aquifers in the area.

NR 162.22 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.23 NR 162.23 Cost eligibility.

NR 162.23(1) (1) Eligible costs.

NR 162.23(1)(a) (a) Eligible at a subsidized rate. Allocable project-specific costs that are necessary and reasonable are eligible for financial assistance. Eligible costs include expenses incurred by the municipality for any of the following items and activities when specific to the scope of a scored project, or when approved by the department as necessary or reasonable for the efficient operation or integrity of the storm water treatment works or BMP:

NR 162.23(1)(a)1. 1. ‘Abandonment.’ Abandonment of storm water treatment works or BMPs if approved in the plans and specifications of a scored project or by department staff, including activities such as demolition, re-landscaping, and removal and disposal of municipal waste or other debris.

NR 162.23(1)(a)2. 2. ‘Access roads.’ Construction of roadways necessary to provide appropriate access to urban runoff facilities or BMPs.

NR 162.23(1)(a)3. 3. ‘Acquisition of facilities.’ Costs associated with acquiring facilities of an existing storm water treatment works or BMP if the municipality will own, operate, and maintain the facilities throughout the term of the financial assistance agreement.

NR 162.23(1)(a)4. 4. ‘Administrative costs of a commission.’ Administrative, legal, and other costs incurred by a commission solely for the scored project if identifiable in a contract or agreement between the member municipalities.

NR 162.23(1)(a)5. 5. ‘Compliance with state and federal requirements.’ Costs incurred for activities associated with complying with state and federal requirements related to the scored project.

NR 162.23 Note Note: State and federal requirements may include any of the following: Americans with Disabilities Act design and construction; green project reserve documentation; Davis-Bacon and related acts administration or other activities associated with wage rate requirements; DBE solicitation and documentation; activities associated with the use of American-made products; environmental review of project sites and other activities related to ch. NR 150 compliance, including costs of public notices and hearings; historical, architectural, archaeological, and cultural resources work identified during planning, design, or construction of the project and incurred prior to project closeout; signage requirements, including on a website or at a project site; or audit activities related to the federal single audit act portion of the municipality’s annual audit report until the project is complete.

NR 162.23(1)(a)6. 6. ‘Construction activities.’ Activities defined in s. NR 162.003 (16) and included in construction contracts or performed as force account work, including any of the following:

NR 162.23(1)(a)6.a. a. Replacing, repairing, or rehabilitating a storm water treatment works or BMP if identified in the plans and specifications as cost-effective and necessary.

NR 162.23(1)(a)6.b. b. Restoring streets and rights-of-way and repairing damage to items such as pavement, sidewalks, and watermains necessary as a result of construction of the scored project.

NR 162.23(1)(a)6.c. c. Punch list item activities.

NR 162.23(1)(a)6.d. d. Acquiring, consuming, or expending materials.

NR 162.23(1)(a)6.e. e. Obtaining products that comply with federal requirements to use American-made products in CWFP projects.

NR 162.23(1)(a)6.f. f. Other capital costs incurred solely for purposes of the scored project.

NR 162.23(1)(a)7. 7. ‘Demolition.’ Demolishing existing structures if the demolition is part of a scored project and any of the following apply:

NR 162.23(1)(a)7.a. a. The existing structure is part of the storm water treatment works.

NR 162.23(1)(a)7.b. b. The existing structure is part of a BMP project.

NR 162.23(1)(a)7.c. c. The demolition is necessary for site preparation.

NR 162.23(1)(a)7.d. d. The demolition is included in abandonment procedures as approved in the plans and specifications of the scored project or otherwise approved by department staff.

NR 162.23(1)(a)7.e. e. The demolition entails removal of equipment or materials, or both, from inside an existing building or other structure that is part of the treatment works being modified or repurposed as part of the scored project.

NR 162.23(1)(a)8. 8. ‘Discharge monitoring.’ The cost of equipment owned or to be owned by the municipality for illicit discharge monitoring of a storm water treatment works or BMP.

NR 162.23(1)(a)9. 9. ‘Easements and rights-of-way.’ Acquisition of easements and rights–of–way, including purchase cost, and administrative and legal expenses.

NR 162.23(1)(a)10. 10. ‘Equipment.’ Equipment, the costs of which the department may prorate if the municipality intends to use these items for multiple purposes rather than solely for the storm water treatment works or BMP. Eligible equipment includes any of the following:

NR 162.23(1)(a)10.a. a. Mobile equipment, such as portable stand-by generators, portable emergency pumps, and grounds and maintenance equipment for mowing and snow removal, for the storm water treatment works or BMP.

NR 162.23(1)(a)10.b. b. Spare parts, if included in the plans and specifications or otherwise approved by the department.

NR 162.23(1)(a)10.c. c. Machinery for manufacturing or repairing necessary tools or equipment for the storm water treatment works or BMP.

NR 162.23(1)(a)10.d. d. Computers, tablets, and related equipment, including purchasing, installing, programming, or upgrading computers, printers, control systems, and other computer-related equipment necessary for operating and maintaining the storm water treatment works or BMP. Equipment and systems for accounting, billing, public notification, testing, monitoring, reporting, emergency alerts, communications, geographic information, and supervisory control and data acquisition are included under this subd. 10. d.

NR 162.23(1)(a)11. 11. ‘Fees.’ Fees paid by the municipality for any of the following:

NR 162.23(1)(a)11.a. a. Permits obtained for construction, including building, electrical, and plumbing permits, construction site storm water permits, and railroad crossing permits.

NR 162.23(1)(a)11.b. b. Legal fees of an attorney that is not an on-staff municipal attorney, including costs of legal reviews of architectural, engineering, or construction contracts, user charge systems and sewer use ordinances, management plans, intermunicipal agreements, and legal work necessary for securing eligible permits.