Ch. Trans 28 Note
Note: Chapter Trans 28 as it existed on February 28, 1985 was repealed and a new chapter Trans 28 was created effective March 1, 1985.
Trans 28.01
Trans 28.01 Purpose and scope. The purpose of this chapter is to set forth the department's administrative interpretation of s.
85.095, Stats., and to prescribe the administrative policies and procedures for implementing the harbor assistance program authorized by s.
85.095, Stats.
Trans 28.02
Trans 28.02 Definitions. As used in this chapter:
Trans 28.02(1)
(1) “Commercial transportation facility" means a facility used by vessels under construction or repair, by vessels transporting passengers or commodities or by commercial fishing vessels, but does not include a facility used on a regular basis by recreational or sport fishing vessels.
Trans 28.02(1m)
(1m) “Cruise vessel" means a passenger vessel as defined in
46 USC 2101(22) or a small passenger vessel as defined in
46 USC 2101(35) that provides overnight accommodations for at least 50 passengers for hire and operates on a schedule between 2 points of sailing. Cruise vessels are not considered to be recreational vessels.
Trans 28.02(2)
(2) “Department" means the Wisconsin department of transportation.
Trans 28.02(3)
(3) “Disposal facility" means containment facilities, diked or undiked disposal sites, or transfer sites for future beneficial reuse.
Trans 28.02(4)
(4) “Disposal facility costs" means costs of acquisition, construction, operation, or physical maintenance of a disposal facility.
Trans 28.02(5)
(5) “Dock wall" means any bulkhead, pier or shoreline development used as a commercial transportation facility.
Trans 28.02(6)
(6) “Dredging" means the excavating of harbor sediment or bottom materials, including the mobilization or operation of equipment for excavation, the sampling and analysis of sediment to determine the composition of material to be dredged or the transportation of dredged material to and placement of dredged material in a disposal facility.
Trans 28.02(7)
(7) “Dredged material disposal" means placing dredged material in a disposal facility.
Trans 28.02 Note
Note: Federally recognized tribal governing bodies are also eligible applicants, based on s.
20.002(13), Stats.
Trans 28.02(9)
(9) “Eligible costs" means costs approved in a grant agreement.
Trans 28.02(9m)
(9m) “Ferry" means a passenger vessel that has provisions for deck passengers or vehicles, or both, and operates on a regular schedule between a minimum of 2 points.
Trans 28.02(10)
(10) “Maintenance dredging" means dredging in an area previously dredged to the dimensions agreed upon in the grant agreement, but does not include dredging to greater dimensions than those to which the area has been previously dredged.
Trans 28.02(11)
(11) “Project priority list" means a ranking by the department, assisted by an advisory council as described in
s. Trans 28.06 (3), of various eligible applicant-proposed harbor improvement projects in the rank order in which the department proposes to fund the various projects.
Trans 28.02 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 01-117: cr. (1m) and (9m)
Register March 2002 No. 555, eff. 4-1-02;
CR 05-019: am. (5), (8) and (11)
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.03
Trans 28.03 Harbor assistance program objective. The objective of the harbor assistance program is to assist the eligible applicant to provide necessary water access and to maintain or improve the economically effective commodity movement capabilities of Wisconsin's harbors on the Great Lakes or the Mississippi River system.
Trans 28.03 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 05-019: am.
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.04(1)
(1)
Description. Every eligible harbor assistance project shall benefit a commercial transportation facility. Eligible harbor assistance projects include dockwall and disposal facility construction, repair, maintenance or rehabilitation; maintenance dredging of materials from a harbor or dredging of new harbor areas; dredged material disposal; and other harbor improvements related to the physical needs of a port that maintain or increase commodity or passenger movement capabilities.
Trans 28.04(2)
(2) Location. Eligible projects shall be located only in Great Lakes or Mississippi River system harbors where vessels take on or discharge a combined total of more than 1,000 tons of commercial cargo per year; where commercial, naval or recreational vessels are built; where passenger or vehicle–carrying ferry service connects the Wisconsin communities along the Great Lakes and Mississippi River, or connects the Wisconsin mainland with other states, Canadian provinces or populated islands in Wisconsin or where commercial fishing vessels unload fish. The U.S. army corps of engineers' annual tonnage figures shall be the basis for the tonnage determination; where tonnage figures are not available, the eligible applicant shall provide tonnage figures based on auditable records.
Trans 28.04 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 01-117: am. (1) and (2)
Register March 2002 No. 555, eff. 4-1-02;
CR 05-019: am. (2)
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.05(1)
(1) The department shall base its project selection on the following criteria, listed in each paragraph in descending order of importance:
Trans 28.05(1)(a)1.
1. Indicators of expected economic impact shall be determined by a benefit–cost analysis. Benefits must exceed costs for the project to be further evaluated for funding.
Trans 28.05(1)(a)2.
2. The expected number of jobs created by a project or lost by not completing a project shall be considered.
Trans 28.05(1)(b)1.a.
a. Harbor depth is less than, or within 18 months after the application date is projected to be less than, the navigation depth required for harbor usage.
Trans 28.05(1)(b)1.b.
b. A dockwall has deteriorated so that a terminal facility is not, or within 18 months after the application date is projected to be not, usable for terminal purposes.
Trans 28.05(1)(b)1.c.
c. Failure to complete the project would decrease passenger or commodity movement through a harbor or through a commercial, transportation facility by 25% or more.
Trans 28.05(1)(b)2.
2. The following project types shall have the following priority order for grant award:
Trans 28.05(1)(b)2.a.
a. Maintenance dredging of materials with its attendant disposal where maintenance is the responsibility of a local government and is performed outside a United States corps of engineers project area.
Trans 28.05(1)(b)2.c.
c. Maintenance dredging and disposal within a United States corps of engineers project area.
Trans 28.05(1)(b)2.d.
d. New project development of a commercial transportation facility, where the development involves dredging, dredged material disposal and dockwall construction.
Trans 28.05(1)(b)2.f.
f. New project development of a commercial transportation facility other than that development described in
subd. 2. d.
Trans 28.05(1)(c)
(c) Amount of tonnage and waterborne transportation: Higher priority shall be given to projects in harbors with larger amounts of tonnage and waterborne transportation, and a lower priority shall be given to projects in harbors with lesser amounts of tonnage and waterborne transportation. Improvements that benefit cruise vessels shall be of lower priority than improvements benefiting vessels transporting cargo or operating as ferries.
Trans 28.05(2)
(2) The department may deny funding of otherwise eligible projects if:
Trans 28.05(2)(a)
(a) The application was submitted by an ineligible applicant or was submitted after the due date.
Trans 28.05(2)(e)
(e) The project is speculative; that is, the eligible applicant for a new project development has no firm financial commitment from a potential lessee or operator that ensures future, productive use of the work performed under the project.
Trans 28.05(2)(f)
(f) The project has a lower priority than others requiring harbor assistance program funding during the current biennium.
Trans 28.05(2)(h)
(h) The project proposed is inconsistent with applicable harbor development plans or local comprehensive plans.
Trans 28.05(3)
(3) The department shall establish an advisory council, under authority of s.
15.04 (1) (c), Stats., to evaluate harbor assistance program project applications. The advisory council shall include a representative of the Wisconsin Economic Development Corporation and of the Wisconsin coastal management council and shall include 2 or 3 other persons familiar with water transportation. Consistent with this chapter, the advisory council shall evaluate and rank the proposed projects and shall recommend to the department the priority of the projects to be funded.
Trans 28.05 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85; correction in (2) (g) made under s. 13.93 (2m) (b) 7., Stats.,
Register, December, 1987, No. 384;
CR 01-117: am. (1) (a) 1., (c), and (3)
Register March 2002 No. 555, eff. 4-1-02;
CR 05-019: am. (1) (b) 2. d. to f., (2) (e) and (g)
Register July 2005 No. 595, eff. 8-1-05; correction in (3) made under s. 13.92 (4) (b) 6., Stats.,
Register January 2012 No. 673;
correction in (3) made under s. 13.92 (4) (b) 6., Stats.,
Register January 2012 No. 673;
correction in (3) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674. Trans 28.06(1)
(1) The department shall annually establish deadlines for filing harbor assistance project applications and shall give appropriate notice of the deadlines. Notice shall be by mail, sent to every eligible applicant that has met the planning requirements under
s. Trans 28.10. The department shall issue notice of the grant awards within 180 days after an application deadline. No grant funds may be committed to an eligible applicant until a grant agreement is negotiated and signed by the department and the eligible applicant.
Trans 28.06(2)
(2) The department may rescind grant awards in whole or in part if:
Trans 28.06(2)(a)
(a) All legally required permits are not obtained by July 1 of the calendar year for which a grant is awarded;
Trans 28.06(2)(c)
(c) Funds to be made available from other sources because of the grant are not advanced when due;
Trans 28.06(2)(d)
(d) Work eligible for grant reimbursement is not begun in the calendar year for which the grant was awarded;
Trans 28.06(2)(e)
(e) A significant change in the project scope occurs after notice of the grant award is issued; or
Trans 28.06(3)
(3) The department shall rescind a grant award if the eligible applicant withdraws its application or is unable to enter a grant agreement in the calendar year for which the grant is awarded.
Trans 28.06(4)
(4) Recision of a grant award, in whole or in part, shall permit the department to award a grant to the next, most highly ranked, unfunded project on the current project priority list that can be funded under the requirements of this chapter.
Trans 28.06 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 05-019: am. (1)
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.07(1)
(1) In accordance with s.
85.095 (2) (a), Stats., the state share of project costs may not exceed 80% of the eligible costs incurred by the eligible applicant for the harbor assistance project.
Trans 28.07(2)
(2) For projects funded in part by the U.S. army corps of engineers, the state share may not exceed 50% of the non-federal share of the project costs.
Trans 28.07(3)
(3) For projects with federal funding, other than those projects funded in part by the U.S. army corps of engineers as described in
sub. (2), the state share may not exceed 80% of the non-federal share of project costs; furthermore, the minimum eligible applicant share shall be no less than 10% of project costs.
Trans 28.07(4)
(4) The department may not assume a continuing funding responsibility for any project.
Trans 28.07 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 01-117: am. (4)
Register March 2002 No. 555, eff. 4-1-02;
CR 05-019: am. (1) and (3)
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.08(1)
(1) Harbor assistance projects for which grants are approved shall be formally implemented through grant agreements between the department and the eligible applicant. If the eligible applicant is unable or unwilling to enter into a grant agreement with the department in the calendar year for which the applicant's project is approved, the applicant shall resubmit another application for the project before the department shall again consider it for funding.
Trans 28.08(2)
(2) The types and amounts of costs eligible for state assistance shall be negotiated in developing a grant agreement. Eligible costs may include final engineering, construction, and dredging costs and other costs agreed to by the department and the eligible applicant. The following items, however, are not eligible for reimbursement:
Trans 28.08(2)(b)
(b) Costs of acquiring permits or of preparing environmental documents, feasibility studies, conceptual project designs or design revisions; and
Trans 28.08(2)(c)
(c) Interest on money borrowed by the eligible applicant or interest charged to the applicant for late payment of project costs.
Trans 28.08(3)
(3) The maximum amount granted by the department shall be stated in the grant agreement for the project.
Trans 28.08(4)
(4) The grant agreement shall require a grant recipient to:
Trans 28.08(4)(a)
(a) Save and hold the department harmless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever related to the project; and provide, at its expense, a comprehensive general liability insurance policy, with per occurrence limits to be determined by the department, naming the department and its officers, employees and agents as additional insureds.
Trans 28.08(4)(b)
(b) Provide evidence of performance and payment bonds, satisfying all applicable requirements of ss.
30.32 and
779.14, Stats., for the full amount of any and all construction contracts let by the eligible applicant in connection with the project.
Trans 28.08(4)(c)
(c) Maintain project-related books and records as required by the department and make such records available to the department for audit purposes. In addition, grant recipients shall make periodic progress reports to the department. The content and timing of these reports shall be specified in the grant agreement.
Trans 28.08(5)
(5) In the grant agreement, the department shall require repayment of grant funds advanced to an eligible applicant if:
Trans 28.08(5)(a)
(a) The project for which the grant funds are awarded is not completed in accordance with all terms of the grant agreement, including required completion dates; or
Trans 28.08(5)(b)
(b) Any commercial transportation facility for which the grant is awarded is converted during that time established in the grant agreement to a use inconsistent with the purposes of the harbor assistance program or inconsistent with the terms of the grant agreement or is converted during that period to a use not approved in writing by the department. Conversion to a use approved in writing by the department may, nonetheless, require repayment of all or a portion of the grant funds to the department.
Trans 28.08 History
History: Cr.
Register, February, 1985, No. 350, eff. 3-1-85;
CR 05-019: am. (2) (intro.), (a), (c), (4) (b) and (5) (intro.)
Register July 2005 No. 595, eff. 8-1-05.
Trans 28.09(1)
(1) Applications for harbor assistance program grants shall be submitted to the department in a manner and form prescribed by the department. Forms shall be available without charge.
