NOTICE IS HEREBY GIVEN that pursuant to ss.101.02 (15) (h) to (j), 101.1205, 101.63 (1) and 101.653 Stats., the Department of Commerce will hold a public hearing on proposed rules under chapters Comm 2, 20, 21, 60 and 61 relating to erosion control, sediment control and storm water management for the construction of buildings.
The public hearing will be held as follows:
Date and Time: Wednesday, January 18, 2006 at 1:00 p.m.
Location: Room 3B, Thompson Commerce Center,
201 West Washington Avenue, Madison
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until January 31, 2006 to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at
jquast@commerce.state.wi.us.
This hearing is held in accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Analysis of Proposed Rules
1. Statutes Interpreted.
2. Statutory Authority.
3. Related Statute or Rule.
4. Explanation of Agency Authority.
Section
101.02 (15) (h) to
(j), Stats., grants the Department of Commerce general authority for protecting the health, safety and welfare of the public by establishing reasonable and effective safety standards for public buildings and places of employment. Section
101.63 (1), Stats., grants the Department of Commerce general authority to establish construction standards for the construction of one- and 2-family dwellings.
Section
101.1205 (1), Stats., directs the department to establish statewide standards for erosion control for constructing public buildings and places of employment.
Section
101.653 (1), Stats., directs the department to establish standards for erosion control for constructing one- and 2-family dwellings. Section
101.653 (2), Stats., directs the department to promulgate rules regarding the administration of erosion control by municipalities.
5. Summary of Proposed Rules.
The Uniform Dwelling Code, chapters Comm 20-25, currently contains standards for the design and construction of one- and 2-family dwellings. The code includes provisions addressing erosion control during construction. The Commercial Building Code, chapters Comm 61-65, contains standards for the design and construction of commercial buildings that serve as public buildings or places of employment. Currently, this code has minimal provisions regarding erosion control and storm water management. The provisions reference Department of Natural Resources rules under chapter NR 216. Chapter
Comm 2 contains the fees for various services and processes administered by the Department of Commerce.
The proposed rules consist of updating the Uniform Dwelling Code and the Commercial Building Code in order to reflect current standards under chapters NR 151 and 216. The following is a summary of the major changes being proposed. [The numbers in the brackets indicate where the change can be found in the proposed rules.]
1. Establishing a fee for processing notices of intent regarding the land disturbing construction activities involving one acre or more for commercial building sites. [Comm 2.36]
2. Clarifying that provisions relating to storm water management are not minimum and the codes do not affect municipal authority to enact more stringent ordinances on the subject. [Comm 20.02 (2) (b) and Comm 60.01]
3. Acknowledging that municipalities may enforce more stringent erosion and sediment control provisions in order to comply with obligations under federal Environmental Protection Agency regulations or targeted standards of the Department of Natural Resources, or when the provisions were preexisting prior to January 1, 1994. [Comm 20.02 (2) (e) and Comm 60.10]
4. Establishing a mandate to employ practices that address specific potential sources of soil or sediment deposition. [Comm 20.125 (1) (b) and Comm 60.20 (2)]
5. Establishing performance standards for practices to address erosion and sediment control on sites where less than one acre of land disturbing construction activity is to occur and sites where one or more acres of land disturbing construction activity is to occur. [Comm 20.125 (1) (c) and Comm 60.20 (3)]
6. Establishing monitoring and maintenance provisions for erosion and sediment control. [Comm 20.125 (1) (e) and (f) and Comm 60.21 and 60.22]
7. Establishing storm water management provisions by referencing section
NR 151.12. [Comm 20.125 (2) and Comm 60.30]
6. Summary of, and Comparison with Existing or Proposed Federal Regulations.
Under the Federal Clean Water Act, the Environmental Protection Agency has established erosion and sediment control regulations,
40 CFR Parts 9,
122,
123 and
124, for land disturbing activities involving one or more acres at construction sites. The regulations establish a permitting process under the National Pollutant Discharge Elimination System, NPDES, that may be implemented by state jurisdictions. The regulations require the design, implementation and maintenance of best management practices to improve water quality by reducing pollutants in storm water runoff.
The Department of Natural Resources under chapter NR 216 implements the EPA permitting process mandate in Wisconsin. Under section
NR 216.42 (4), the Department of Natural Resources recognizes commercial building construction falling under Department of Commerce rules as complying with the Wisconsin Pollutant Discharge Elimination System permitting. That recognition in turns helps to achieve the state's implementation of the EPA permitting process for construction site erosion control.
7. Comparison with Rules in Adjacent States.
The rules of all of the neighboring states, Illinois, Iowa, Michigan and Minnesota basically emulate the regulations of the federal Environmental Protection Agency with respect to permits and the implementation of best management practices for erosion and sediment control for land disturbing construction activities and post construction storm water management. In addition, Minnesota requires that the one-acre disturbed sites utilize some method to treat at least a ½ inch volume of the post-construction storm water runoff. Iowa has established a performance standard of 80 percent of sediment reduction in post construction storm water runoff.
In these states local municipalities have the ability to enact more stringent erosion and sediment control or storm water management provisions.
8. Summary of Factual Data and Analytical Methodologies.
There were no factual data or analytical methodologies used to develop the proposed rules.
9. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of Economic Impact Report.
The proposed rules should have a minimal additional impact on small business. Under current federal expectations and obligations, all businesses are to implement best management practices when undertaking land disturbing construction activities involving one acre or more. There were no supporting documents used to determine the effect on small business, and an economic impact report was not prepared.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules.
Any small business that constructs a new building or alters an existing building where land disturbing activity is to occur during the construction will be affected by these rules.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
If the land disturbing construction activity involves one or more acres, the owner or the owner's agent is required to file a Notice of Intent with the department or an agent municipality certified by the department. In most cases erosion and soil control plans need to be prepared to indicate the type and location of the control practices to be utilized on the construction site. Also, if the land disturbing construction activity involves one or more acres, a post construction storm water management needs to be developed and implemented. When one or more acres are disturbed, a log needs to be maintained documenting the periodic monitoring and maintenance of the erosion and sediment control practices on the site.
Although these procedures are the legal responsibility of the owner, these are typically delegated to the general contractor undertaking the actual construction. These procedures are mandated under current rules as well as obligations mandated by the federal Environmental Protection Agency. These procedures are standard practice for many building projects.
3. Types of professional skills necessary for compliance with the rules.
Businesses involved with the construction of buildings will have to become familiar with erosion and sediment control and storm water management or will have to contract with someone who has the expertise.
4. Rules have a significant economic impact on small businesses.
No. Rules not submitted to Small Business Regulatory Review Board
Environmental Analysis
Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Environmental Assessment
Notice is hereby given that the Department has prepared a preliminary Environmental Assessment (EA) on the proposed rules. The preliminary recommendation is a finding of no significant impact. Copies of the preliminary EA are available from the Department on request and will be available at the public hearings. Requests for the EA and comments on the EA should be directed to:
James Quast
Division of Department of Commerce
P.O. Box
Madison, Wisconsin 53701
Telephone (608) 266-9292
or TTY (608) 264-8777
Written comments will be accepted until January 31, 2006
Fiscal Estimate
Based upon past data, it is anticipated that 600 Notices of Intent will be annually filed with the Department for the construction of commercial building where one or more acres of land disturbing activity will occur. This will result in a revenue increase of $15,000 per year. This revenue will offset the development and maintenance of a web-based Notice form and filing process.
The proposed rules will not change the Department's administration and enforcement activities with respect to erosion and sediment control and storm water management. The administration and enforcement of the proposed rules are within the current capabilities of the Department with respect to staffing levels and resources.
Local municipalities may enforce the provisions of the Uniform Dwelling Code, chapters Comm 20-25, and the Commercial Building Code, chapters Comm 60-65, and have the ability and authority to offset enforcement costs by charging the appropriate fees.
The proposed rules will not have a significant fiscal effect on the private sector.
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
rward@commerce.state.wi.us, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at
cdunn@commerce.state.wi.us.
Notice of Hearing
Employee Trust Funds
A public hearing on a proposed revision to ch.
ETF 10, relating to separate retirement system investments in the fixed and variable retirement investment trusts will be held on Tuesday,
January 24, 2006, at 3:00 PM in Conference Room GA at the offices of the Department of Employee Trust Funds, 801 West Badger Road, Madison, Wisconsin.
Analysis Prepared by the Department of Employee Trust Funds
Explanation of agency authority: The Secretary of the Department of Employee Trust Funds is required to promulgate rules governing the times when separate retirement systems, such as the Milwaukee Public Schools Retirement System, may send or deliver funds to be invested as if part of the fixed or variable retirement investment trust, the withdrawal of those funds, the amounts of money that may be sent, delivered or withdrawn, the valuation of money that has been sent, delivered or withdrawn, and the distribution of investment income among the retirement systems. The Secretary's rules may also modify the basis for accounting or valuation and the investment earnings distribution procedures of the Wisconsin retirement system to the extent necessary to achieve equity among the various retirement systems.
Plain language analysis: The proposed rule revision would better mirror the investment performance of the fixed and variable retirement investment trusts for purposes of valuing the investment accounts of separate retirement systems. The proposed rule will also better assure full compliance with the requirement of Wis. Stats. s.
40.03 (2) (n) that each separate retirement system will pay for the costs of investing and administering funds sent to the Department of Employee Trust Funds.
The main purpose of the proposed rule revision in s.
ETF 10.12 is to change the formulas used to value investments of separate retirement system accounts to be consistent with recommended financial industry practice. The revisions will also fine tune transaction definitions to facilitate the most effective implementation of the new formulas. For example, the rules concerning deposits are revised to allow deposits only on the last day of the month rather than the first day.
Section
ETF 10.12 currently prescribes an investment valuation formula that is not totally consistent with recommended practice or conducive to establishing levels of process quality assurance. For example, the current rule does not enable a rate of earnings comparison between the separate accounts with the rate of earnings of the trust fund as a whole. Since the existing rule was first implemented, departmental experience and guidance from financial experts of the State of Wisconsin Investment Board have identified ways to improve the valuation method and to add procedures that will help ensure complete and accurate valuations.
In order to avoid violation of the exclusive benefit rule of 26 U.S. Code s. 401 (a) and Wis. Stats. s.
40.015 (1) the proposed rule will also limit the separate retirement systems who may invest in the Public Employee Trust Fund to those retirement systems, as defined by Wis. Stats. s 40.02 (51), providing additional pension benefits for employees covered by the Wisconsin Retirement System.
Summary of, and comparison with, existing or proposed federal regulations: In order to be qualified under 26 U.S. Code §401(a)(2), A trust forming part of an employer pension plan must be for the exclusive benefit of the employees or their beneficiaries. It is prohibited to use or divert any part of the trust corpus or income for any other purposes.
Comparison with rules in adjacent states: Permitting discretionary investment of a separate trust fund in the public employee's retirement trust appears to be unique to Wisconsin, at least among neighboring states.
Summary of factual data and analytical methodologies: The investment valuation calculation was developed in consultation with the State of Wisconsin Investment Board staff to more accurately mirror the investment performance of the Public Employee Trust Fund as a whole, to adopt industry best practices and to enable the investment and administrative costs for each separate retirement system's funds to be assessed.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: Wis. Stat. s.
40.02 (51) defines “retirement system" in a manner that necessarily excludes all private businesses. So the proposed rule has no effect whatsoever on small businesses.
Anticipated costs incurred by private sector: None.
Effect on small business: No effect.
Agency contact person: Please direct any questions about the proposed rule to Robert Weber, Chief Legal Counsel, telephone (608) 266-5804, e-mail address:
rob.weber@etf.state.wi.us., or Bob Willett, Director, Office of Trust Finance and Data Analysis, telephone (608) 266-0904, e-mail
bob.willett@etf.state.wi.us. The mailing address for both Mr. Weber and Mr. Willett is Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707.
Place where comments are to be submitted and deadline for submission: Written comments on the proposed rule may be submitted to Robert Weber, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Wednesday, January 25, 2006.
Initial Regulatory Flexibility Analysis
