Rule-Making Notices (Hearing Notices)

(DNR # WT-23-11)

NOTICE IS HEREBY GIVEN THAT pursuant to sections 227.11 (2) (a), 281.41, 283.11, 283.31, and 283.55, Stats., interpreting sections 281.41, 283.11, 283.31, 283.55 and 283.59, Wis. Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters NR 110, NR 205, NR 208 and NR 210, Wis. Adm. Code, relating to the operation and maintenance of sewage collection systems.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that hearings will be held on:

Date:   Monday, July 16, 2012

Time:   10:00 a.m.

Location:   WDNR Northeast Region, Oshkosh Office
  Rooms 1 and 2; Suite 700
  625 E. County Rd Y
  Oshkosh, WI 54901

Date:   Tuesday, July 17, 2012

Time:   10:00 a.m.

Location:   WDNR West Central Region Headquarters
  Room 158
  1300 W. Clairemont Ave
  Eau Claire, WI 54701

Date:   Wednesday, July 18, 2012

Time:   10:00 a.m.

Location:   WDNR Southeast Region Headquarters
  Rooms 140 and 141
  2300 N. Martin Luther King Jr. Drive
  Milwaukee, WI 53212

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 as noted below. The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at a hearing site or require other accommodation, please contact Michael Lemcke at [phone] (email: [e-mail]) with specific information on your request at least 10 days before the date of the scheduled hearing

Availability of the Proposed Rule and the Fiscal Estimate and Economic Impact Analysis

The proposed rule revisions, including the Fiscal Estimate and the Economic Impact Analysis may be viewed and downloaded and comments electronically submitted at the following internet site: https://health.wisconsin.gov/adm
rules/public/Rmo?nRmoId=10943 [type “NR 210" in the “search" field].

If you do not have internet access, a copy of the proposed rules and supporting documents, including the Fiscal Estimate and Economic Impact Analysis, may be obtained from Michael Lemcke, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921, or by calling [phone].

Place Where Comments are to be Submitted and Deadline for Submission

Written comments on the proposed rules may be submitted via U. S. mail to Duane Schuettpelz, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to: [e-mail]

Comments may be submitted using the internet site where the rule and other documents have been posted [https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=10943]. Please follow the guidelines stated on this site when submitting comments.

Comments submitted on or before July 31, 2012 will be considered in developing a final rule. 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 the Department of Natural Resources

The purpose of these proposed rule additions and amendments is primarily to establish clear regulatory requirements associated with unpermitted and potentially hazardous discharges of untreated or partially treated sewage. These discharges are included under the broad definition of “bypass" in current state and federal regulations. The changes will make Wisconsin's rules conform more closely with the U.S. Environmental Protection Agency's (U.S. EPA) interpretation of federal regulations, a long-standing point of concern by that agency. The proposed rules should also address U.S. EPA's concerns regarding existing sanitary sewer overflow (SSO) and bypassing regulations. In a letter dated July 18, 2011, US EPA notified the department that the definitions, regulations and reporting requirements for bypassing in existing state regulations appeared to be inconsistent with federal regulations.

The rules primarily establish definitions and requirements that apply to untreated or partially treated sewage discharges and create consistency in the requirements applicable to publicly owned treatment works and privately owned facilities collecting and treating primarily sanitary sewage. Section 283.31 (4) (d), Wis. Stats., requires “… the permittee shall at all times maintain in good working order and operate as efficiently as possible any facilities or systems of control installed by the permittee to achieve compliance with the terms and conditions of the permit." Because sewage collection systems are an integral part of pollution control facilities, the department has for years regulated the operation and maintenance of these systems to prevent discharges of untreated sewage.

To interpret and implement the statutory requirement for “proper operation and maintenance", the proposed rules require that all owners of sewage collection systems (primarily municipalities) create a capacity, management, operation, and maintenance (CMOM) program. The CMOM program is an effective management tool that owners use to help construct, maintain and operate sustainable sewage collection systems and prevent overflows. It helps sewage collection system owners proactively maintain this significant and valuable community infrastructure by optimizing planned maintenance and prioritizing rehabilitation or replacement activities. These implementation activities are and have been required under the general “proper operation and maintenance" requirements of existing rules. The proposed rule revisions establish more detailed procedures for this requirement.

In addition to municipalities that own and operate both a sewage collection system and a sewage treatment facility, these rules apply to two other types of systems. Satellite sewage collection system owners do not own and operate a sewage treatment facility. Rather, these municipalities, such as an adjacent city or a sanitary district, own and operate only the sewage collection system which discharges into another municipality's sewers for treatment and disposal. Secondly, these rules also apply to a small number of privately-owned sewerage systems in the state that collect, treat and dispose of sewage (e.g., mobile home parks) or that operate as satellite sewage collection systems. The CMOM requirement also applies to these privately-owned and satellite collection systems.

Discharges of untreated or inadequately treated sewage from any place in sewage collection systems designed to collect and transport only sanitary sewage are most commonly called sanitary sewer overflows (SSOs). Systems designed to collect and transport both sanitary sewage and storm water in the same pipes are called combined sewer systems and discharges are referred to as combined sewer overflows (CSOs). Discharges of untreated sewage are a potential hazard to human health and can have significant impacts on water quality. Typically, SSOs occur as a result of either the entry of an excessive amount of precipitation or groundwater into the sanitary sewers (infiltration/inflow (I/I)) or because there is a mechanical, electrical or structural failure in a component of the collection system.

When a sewage collection system has insufficient capacity to transport the sewage and the I/I entering the sewers, the system will relieve itself by discharging the excess flow as a SSO in one or more ways. Sewage may back up into buildings or basements through the building sewer. Sewage may also be discharged to nearby drainage-ways, to surface waters or to the land surface from sewage collection system components such as overflowing manholes or lift station overflow pipes. In some instances, sewage may be discharged, usually into surface waters through a gravity overflow structure or a portable or permanently installed pump. Once wastewater enters the sewage treatment facility, an overflow to the land surface and into nearby surface waters may occur if a treatment unit is too small to accommodate the quantity of flow. This rule-making is intended to establish specific requirements applicable to sewage collection system owners that will prevent or reduce the potential for SSOs and, thereby, prevent water quality impairment and human health hazards associated with such discharges. Effective development and implementation of a CMOM program will reduce the costs incurred by a permittee when building backups cause damage to private property.

Initial regulatory flexibility analysis summary

The only new direct cost of these rules is associated with the preparation of the CMOM by private sewage collection system owners and by municipalities that have not yet developed such a program. The effect of this rule on other small businesses will be indirectly through the actions of municipal sewage collection system owners. Costs for sewage collection system maintenance and improvements are normally assessed to all users of the system, including small business owners. Such costs are determined at the local level. Because the costs to any given system owner will likely be assessed to all system users, the cost to an individual small business owner for this activity will be low.

In some instances, it may be determined through activities identified in the CMOM program that excessive I/I originates from a building sewer. If the building sewer from a small business is identified as a source of excessive I/I, the municipality may require rehabilitation of the building sewer by the property owner. Under the “proper operation and maintenance" provisions of state statutes and rules, sewage collection system maintenance activities that may be identified through the CMOM process are existing requirements and, therefore, are not specific new provisions established by these rules.

In the case of private ownership of a sewerage system (e.g., a mobile home park) identified as a source of SSO, replacement or repair of sewerage system components would be the responsibility of the owner. The number of these cases is likely to be very limited because of the small number of private sewage collection system permittees and, therefore, the statewide cost will be low.

Fiscal Analysis and Economic Impact Analysis Summary

Sewage collection system owners have a fiduciary responsibility to the citizens of their community to operate, maintain, repair, replace or otherwise manage these systems in the best interest of the community. Furthermore, robust and well-maintained sewage collections systems (and other infrastructure) are beneficial to the economic health of communities and attractive to new and existing businesses. Therefore, irrespective of these proposed rule changes, sewage collection system owners will, in the course of normal proper operations, undertake actions to protect community infrastructure, prevent illegal SSOs or other system failures, eliminate building backups and minimize risks to human health and the environment. That being the case, any costs associated with the on-going operation and maintenance of a sewage collection system cannot be directly and solely attributed to these rule revisions.

It is well-documented that the long-term benefits of maintaining public infrastructure significantly outweigh the short-term costs associated with those maintenance activities. Reducing the entry of I/I into sewage collection systems through implementation of a CMOM program will be less costly than responding to unplanned emergencies. Furthermore, the resulting reductions in wastewater volume means that ratepayers (including businesses) will not have to pay the increased costs for additional sewerage system capacity to deal with the excessive flow from leaking sewage collection systems.

Under current state and federal statutes and rules, SSOs are not permitted, with certain specific exceptions, and subject to enforcement action by the state or federal government. Establishing and implementing a CMOM program will reduce permit violations due to SSO discharges, thereby reducing the number of enforcement actions necessary. A well-developed and effectively implemented CMOM program can significantly change the nature of the department's enforcement response and reduce the short-term enforcement-related fiscal implications.

Building backups and damages caused to private property by such incidents and that may be caused by deficiencies in the sewage collection system create potential financial liability issues for the system owner. Implementation of the actions required by the rule will serve to reduce the number of building backups and any subsequent emergency activities for which the permittee may be responsible.

Therefore, the principal “new" cost associated with implementation of these proposed rules is the requirement that all owners of sewage collection systems develop or create a CMOM program. These are primarily municipalities, but also include a small number of private sewage collection systems. Under the proposed rule, creating a CMOM program requires the preparation of all documents and plans necessary to implement activities for the proper operation and maintenance of the sewage collection system. Many system owners already have in place preventative maintenance practices that essentially meet the principles of the CMOM program requirements established in the rules. The department, U.S. EPA and other organizations have been actively promoting such a program among the regulated community for the past several years and the CMOM concept has received considerable support from system owners.

Many small communities, including those serving populations less than 10,000 to 15,000 and most satellite sewage collection systems, likely do not have the full capacity to develop a CMOM program without assistance, training and/or guidance from consulting professionals. Consultants and other businesses involved in sewage collection system work will realize monetary benefits from the services they provide assisting owners with CMOM development.

Statewide costs to develop CMOM programs for all sewage collection system owners is difficult to predict due to the variability in size of systems and the status of each individual community's current operation and maintenance program. Based on information available, the estimated cost to develop a CMOM program for a small community that has minimal documentation of its preventative maintenance activities and has the ability to develop the program in-house could be as low as $1,000. More likely, costs will range upward of $5,000. If a consultant is involved to provide training or was contracted to actually prepare the CMOM documentation, the costs would be in the range of $10,000 to $15,000. CMOM program development for medium-sized communities is estimated to cost in the range of $15,000 to $20,000. Larger systems might expect costs proportionately greater. It should be noted that these costs are estimates only and should not be used for budgeting purposes. Careful, individual assessments of needs are important considerations in determining what the actual costs will be in each case.

Once the CMOM program is created, the permittee will likely have to collect and analyze sewage collection system data and undertake construction or other rehabilitation projects to implement the program. Irrespective of a CMOM program, these activities could be very costly, but are a necessary component to the effective and efficient management and proper operation of a sewage collection system and those costs cannot be directly attributed to the enactment of these rules.

Because existing rules and permits contain reporting requirements similar to those specified in this proposed rule, there should be no or minimal additional cost associated with this activity. If a system owner, under the Compliance Maintenance Annual Reporting (NR 208) rule, identifies more than 4 SSO events (as defined in the rule) in any given year, a “failing grade" for this section of the report will be noted in the reporting system. Some owners have indicated that adverse publicity and potential lawsuits by third parties could result in significant costs, even though the sewage collection system is operating within all design parameters.

The City of Superior believes the proposed rule will impose significant additional costs due to the current unique configuration of their combined sewer system. They have estimated “…a conservative expenditure of 20 million dollars…will result in a 40% increase to the residential user volume discharge."

The additional costs to the department resulting from these rule revisions will be minimal. Minor revisions to permit documents will be necessary and can be easily incorporated into the permit data management system.

Summary of, and comparison with, existing or proposed federal regulation

There are no federal regulations that correspond to ch. NR 110. The revisions to ch. NR 205 will make Wisconsin's rules more compatible with current U.S. EPA regulations. Current NR 205 language applicable to “bypassing" is contained in a section of the rule that applies only to publicly owned treatment works and, therefore, does not apply to bypasses at industrial waste treatment facilities. Federal rules do not distinguish between publicly owned treatment works and industrial facilities. One amendment to NR 205 addresses this issue.

Current federal regulations are ambiguous concerning their application to SSO discharges. Inconsistency in U.S. EPA's interpretation of their regulations has created uncertainty in expectations. Therefore, revisions to ch. NR 210 will create greater specificity with respect to provisions governing SSO discharges. Other changes to NR 205 also make this rule more compatible with U.S. EPA regulations concerning bypasses within treatment facilities that are necessary for purposes of essential maintenance and operation as well as addressing some discrepancies associated with anticipated or scheduled bypasses.

There is no federal regulation mandating establishment and implementation of CMOM programs. U.S. EPA has incorporated CMOM requirements into many enforcement actions across the country. Over the past decade, the practice of diverting sewage around biological treatment units at sewage treatment facilities under specific conditions and recombining or “blending" this diverted wastewater with fully treated effluent has been subject to several U.S. EPA proposals. None of the proposals for allowing blending have been finalized and U.S. EPA's application of the federal “bypass prohibition" rule to blending has been sporadic and inconsistent creating great uncertainty about the acceptability of this practice.

Comparison with similar rules in adjacent states

All the other U.S. EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) and the state of Iowa regulate SSOs through state statutes, regulations or guidance in a manner similar to past interpretation of U.S. EPA's bypass regulation. The general bypassing prohibition language and reporting requirements in these states are similar to current Department of Natural Resources rules and permits. Most states, over the past several years, have implemented enhancements to the reporting requirements and tracking (including making such information available to the public) of SSO releases. None of the states have rules relating to blending, though it is apparent from reviewing information available that this practice is not unusual at some sewage treatment facilities. No adjacent states issue permits to satellite sewage collection systems nor do they specifically require that all sewage collection system owners operate a CMOM program.

Environmental Analysis

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.

Agency Contacts

Duane Schuettpelz

Department of Natural Resources

P. O. Box 7921

Madison, WI 53707-7921

Email: [e-mail]

Telephone contact:

Michael Lemcke

Department of Natural Resources

608-266-2666

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices CR 12-029 CR 12-029

(DNR # FR-19-11)

NOTICE IS HEREBY GIVEN THAT pursuant to sections 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the department, will hold public hearings on changes to Chapter NR 47 Subchapter VII, regarding administration of the Private Forest Landowner Grant Program (WFLGP) and the creation of Subchapter XIII regarding the establishment of the Weed Management Area Private Forest Grant Program (WMA-PFGP) on the date(s) and at the time(s) and location(s) listed below.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

Date:   Tuesday, July 20, 2012

Time:   10:00 a.m.

Location:   Wisconsin DNR Service Center
  Gathering Waters Meeting Room
  3911 Fish Hatchery Road
  Fitchburg, WI 53711

Date:   Tuesday, July 20, 2012

Time:   10:00 a.m.

Location:   Wisconsin DNR Service Center
  Conference Room 1
  107 Sutliff Avenue
  Rhinelander, WI 54501

Date:   Tuesday, July 20, 2012

Time:   10:00 a.m.

Location:   Wisconsin DNR Service Center
  Rooms 158/185
  1300 W. Clairemont
  Eau Claire, WI 54702

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 contact Carol Nielsen in writing at the Department of Natural Resources, Private & Community Forest Section (FR/4), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Availability of the Proposed Rule and the Fiscal Estimate and Economic Impact Analysis

The proposed rule and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. FR-19-11).

Place Where Comments are to be Submitted and Deadline for Submission

Written comments on the proposed rule may be submitted via U.S. mail to contacting Carol Nielsen, Department of Natural Resources, Private & Community Forest Section (FR/4), 101 S. Webster St, Madison, WI 53703, or by calling [phone]. Comments may be submitted until July 31, 2012. 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. If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate may be obtained from Kristin Lambert, Bureau of Forest Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Related rules or statutes

Section 23.2355, Weed Management Grants was created to disperse federal dollars that are no longer available. Under subch. III of Ch. NR 47, Admin. Code, the Stewardship Incentives Program was created to disperse federal dollars that are no longer available.

Plain language analysis

The proposed rules address 1) revision to the current Wisconsin Forest Landowner Grant Program (WFLGP) for NIPF landowners in subch. VII of Ch. NR 47 Admin. Code and 2) the establishment of WMA-PFGP in subch. XIII of Ch. NR 47, Admin. Code.

Revisions of Ch. NR 47 are proposed to implement changes to the Wisconsin Forest Landowner Grant Program (WFLGP) for NIPF lands and to create WMA-PFGP to award weed management groups interested in controlling invasive plants on NIPF lands.