Scope Statements
Administration
This statement of scope was approved by the governor on April 15, 2013.
Rule No.
Creates chapter Adm 93.
Relating to
The federal Community Development Block Grant Program (CDBG).
Rule Type
Emergency and Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
Each year the federal government makes funding available to the several states for economic and housing development through a program known as the Community Development Block Grant Program (CDBG). The CDBG is governed under
42 USC 5301 to
5319 and
24 CFR Part 570, and is administered by the US Department of Housing and Urban Development (HUD). Since the dissolution of the Wisconsin Department of Commerce, the Wisconsin Department of Administration (DOA) has received CDBG grants from HUD, and entered into agreements with the Wisconsin Economic Development Corporation (WEDC) for the administration of those funds. Under this arrangement, state administrative code Chapter Commerce 108 was unneeded, as WEDC operated under substantially similar internal policies. Recently, DOA and WEDC have mutually determined that the expertise of DOA is better suited to administration of CDBG funds, while the expertise of WEDC is best suited to consultation with localities and businesses seeking to access CDBG funds. The parties intend to formalize the transfer of administrative responsibility or CDBG funds to DOA shortly. Consequently, it is imperative for the welfare of the State of Wisconsin that administrative code provisions concerning the CDBG program be made.
2. Detailed Description of the Objective of the Proposed Rule
The objective of the proposed chapter is to set forth the criteria the department will use to administer the CDBG program.
This proposed rule-making will do the following:
A. Reconstitute many portions of the former ch.
Comm 108.
B. Decline to reconstitute portions of ch.
Comm 108 which added unnecessary confusion by duplicating federal regulations where reference to such regulations will suffice, such as the former ss.
Comm 108.04,
108.07, and
108.14 (1).
C. Decline to reconstitute portions of ch.
Comm 108 which could vary from year to year under, such as the table found in the former s.
Comm 108.06.
D. Decline to reconstitute portions of ch.
Comm 108 that add complexity to the code without adding meaning, such as point ranges found in the former s.
Comm 108.10.
E. Such other changes as are necessary to comply with current HUD requirements, or which will otherwise increase the efficiency or effectiveness of the program and are allowed by HUD requirements.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Policies to be included in the rule will be derived from existing WEDC internal policies and historical interpretations of the former Chapter
Comm 108.
4. Detailed Explanation of Statutory Authority for the Rule, Including the Statutory Citation and Language
DOA is empowered to enact rules necessary to receive CDBG funds under s.
16.309, Wis. Stats.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and Other Resources Necessary to Develop the Rule
Excluding time spent reviewing existing rules, historical information, and other sources in the preparation of this scope statement, we estimate that completion of the Final Draft of this emergency rule will require an additional 8 hours of staff time.
6. List with Description of all Entities that may be Affected by the Proposed Rule
All local governments and local businesses eligible for funding under the CDBG program.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
The rules as contemplated will be derived from federal requirements.
8. Anticipated Economic Impact of Implementing the Rule. Also, Please Note if the Rule is Likely to have an Economic Impact on Small Businesses
None.
Contact Person
Insurance
This statement of scope was approved by the governor on April 16, 2013.
Rule No.
Relating to
Injured Patients and Families Compensation Fund Annual Fund and Mediation Panel Fees, and ISO code amendments for the fiscal year beginning July 1, 2013.
Rule Type
Permanent Rule and Emergency Rule.
1. Description of the Objective of the Rule
The office of the commissioner of insurance's objective is to establish the annual fees that participating health care providers must pay to fund the injured patients and families compensation fund (“fund") as required by s.
655.57 (3), Wis. Stat., and set the mediation panel fees for the fiscal year beginning July 1, 2013, as required by s.
655.61, Wis. Stat. The proposed rule will also amend the Insurance Services Office (“ISO") codes for the classification of health care provider specialties in accordance with s.
655.27 (3) (c), Wis. Stat.
2. Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
The policies as set forth in the statutes require the office of the commissioner of insurance to promulgate a rule to establish the amount of fees to be paid into the fund annually as approved by the board of governors of the fund (“board"). The fees included in the proposed rule will address both the annual assessments for the coverage provided to the participating health care providers, and the mediation fund fees which are collected by the fund and paid to the director of state courts for the operations of the medical mediation panels. In addition, the classification code modifications are the numerical designation for a health care provider's specialty and are used to classify the provider for assessment purposes consistent with s.
655.27 (3) (c), Wis. Stat.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
The fund was established by and is operated as provided in ch.
655, Wis. Stat. The commissioner of insurance, with approval by the board, is required to annually set the fees for the fund and the medical mediation panel by administrative rule. Section
655.004, Wis. Stat., states that the director of state courts and the commissioner may promulgate such rules under ch.
227, Wis. Stat., as are necessary to enable them to perform their responsibilities under this chapter. Pursuant to s.
655.27 (3) (b), Wis. Stat., the commissioner, after approval by the board, shall by rule set the mediation panel fees, and s.
655.61, Wis. Stat., requires that the board, by rule to set fees that are charged to health care providers that are sufficient to provide the necessary revenue to fund the medical mediation panels. Pursuant to s.
655.27 (3) (a), Wis. Stat., the ISO codes set the classifications for the providers that aid in accurately classifying past and prospective loss and expense experience in different types of practice that establishes the classifications for fund fee assessment. Finally, s.
601.41 (3), Wis. Stat., provides that the Commissioner shall have rule-making authority under s.
227.11 (2), Wis. Stat.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
120 hours of time including the time of state employees and members of the board.
5. Description of all Entities that this Rule may have an Economic Impact on
All health care providers that are participants in the fund, as set forth in s.
655.002 (1), Wis. Stat., are required to pay annual assessments for payment of claims that arise in each given year consistent with the provisions of ch.
655, Wis. Stat. For the fiscal year beginning July 1, 2013 the board approved a 5% decrease in fees at the December 19, 2012 board meeting. At the March 20, 2013 board meeting the board approved a decrease in mediation panel fees to zero for the fiscal year beginning July 1, 2013. The reduction was based upon the request of the director of state courts as it will have a surplus and does not request additional funding for the fiscal year. In light of the fact that the fund fee and mediation panel fees are decreased, the economic impact is expected to be minimal. The ISO code amendments add clarity and correct errors that will be used to accurately assess the fund participating providers by their practice.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
There is no existing or proposed federal regulation addressing any medical malpractice fund like the Wisconsin fund.
7. Statement of Scope for Permanent and Emergency Rule
The fund issues invoices for the following fiscal year in June of each year. In order for the invoices to correctly reflect the decreased assessment that was approved by the board, a rule must be promulgated and take effect prior to June 15, 2013. Due to the length of time that may be required to promulgate the rule, the scope is being submitted for both the permanent rule and an emergency rule to ensure that procedures are in place to promulgate the rule on an emergency basis to ensure that the invoices can be issued reflecting the decreased assessments approved by the board while the permanent rule can proceed without negative impact on the fund.
Contact Person:
Julie E. Walsh, Attorney, 608-264-8101.
Natural Resources
Environmental Protection—General, Chs.
100—
(DNR # CF-13-13)
This statement of scope was approved by the governor on April 3, 2013.
Rule No.
Revises chapter NR 162.
Relating to
Clean Water Fund Program.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
2. Detailed Description of the Objective of the Proposed Rule
Chapter
NR 162 is the administrative rule for the Clean Water Fund Program (CWFP), which provides loans to municipalities to finance wastewater infrastructure projects and urban runoff and storm water best management practices (BMPs). There are four objectives for revising ch.
NR 162.
Objective 1: To update areas of ch.
NR 162 that are either no longer in line with federal regulations or state statutes or need efficiency, accuracy, or clarity changes. At a minimum, the following topic areas need updating:
• Loan application.
• Cost eligibility.
• Financial assistance requirements.
• Requirements for a user charge system.
• Procurement including solicitation of disadvantaged businesses.
• Reimbursement and refinancing.
•
Loan interest rates including median household income information.
•
Financial assistance disbursements.
•
Amendments to a financial assistance agreement.
• Eligibility for hardship financial assistance.
• Procedure for determining type and amount of hardship financial assistance.
• Operation, maintenance, and replacement cost estimates.
Objective 2: To separate the current Subchapter II into two or more subchapters. Topic areas to be covered in these separate subchapters are:
• Municipal wastewater projects.
• Projects for stormwater runoff treatment works and structural urban best management practices (BMPs) in permitted municipalities.
• Urban runoff treatment works and structural BMPs in non-permitted municipalities.
• Feasible and effective agricultural BMPs and other nonpoint source pollution prevention or treatment practices that are approved by the U.S. Environmental Protection Agency (EPA).
Objective 3: To thoroughly review the “interest rate subsidies for small loans" portion of ch.
NR 162 and the subprogram itself for effectiveness and to determine its future. In the small loan program, loans awarded to municipalities by the State Trust Fund (the Board of Commissioners of Public Lands) have part of their interest rates subsidized under ch.
NR 162 for eligible projects. In the past few years, we have seen a reduction in the use of this program.
Objective 4: To provide the Environmental Improvement Fund (EIF) — the umbrella fund for the CWFP and the Safe Drinking Water Loan Program — with flexibility to adapt quickly to changing environmental and regulatory priorities. The main areas of ch.
NR 162 in which the CWFP needs flexibility are:
• Types of financial assistance available.
• Annual funding policy.
• Project and cost eligibility.
Additional areas of flexibility may be identified by the Advisory Committee that will be convened to assist the Bureau with revisions to ch.
NR 162.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
A. Existing Policies Relevant to the Rule:
Many of the existing policies relevant to ch.
NR 162 (for example, the requirements for prioritizing projects receiving funds based on their ability to achieve water quality and compliance priorities for most types of point source pollution reduction and prevention) are based in federal requirements that have evolved over the years. Some existing policies are specified in the related state statutes. A significant portion of existing policies are already included in the current ch.
NR 162, which serves the needs of the Clean Water Fund Program. Because the existing ch.
NR 162 is very prescriptive and has not been revised since 2004, rule revisions are necessary to accommodate situations staff have encountered.
B. New Policies Proposed to be Included in the Rule:
While the existing rule is fairly apt at addressing the point source projects, the rule does not allow the DNR flexibility to fund more innovative options for municipalities to meet water quality standards or permit limits. By revising the CWFP rules to allow financing of non-traditional solutions to water pollution prevention and treatment, DNR will be able to help municipalities more effectively achieve compliance with water quality standards. Staff envision creating subchapters for nonpoint source projects, wastewater projects, and stormwater projects.
The rule-revision process will also assess whether some of Wisconsin's CWFP policy changes are more effectively modified if they are included in the annual
Intended Use Plan (IUP). The IUP
undergoes
public review and comment prior to being submitted to the DNR Secretary and EPA for approval. Examples of policies that could be included in the IUP instead of ch.
NR 162 include project scoring system priorities, “green project" reserve determinations, and additional subsidization requirements.
C. Analysis of Policy Alternatives:
1)
Do Nothing — leave ch.
NR 162 as it is.
a. Pros: This alternative would mean no rule revisions are necessary and staff resources will not be diverted from program implementation.
b. Cons: The absence of rule revisions will mean that ch.
NR 162 is still out of compliance with Federal fund requirements. Our inability to revise the rule means we must continue issuing variances for portions of the program that are inconsistent with new federal requirements. Opportunities for streamlining processes will be lost.
2)
Incorporate policy changes into ch.
NR 162.
a. Pros: Many areas of ch.
NR 162 can be improved or streamlined with fairly minor changes. Some of these changes are the result of federal requirements. In addition, incorporating changes that are discussed with DNR partner bureaus and external partners will help streamline the program, build better efficiencies for all, ensure consistency with federal requirements, and provide assurances to EPA that our program is meeting those requirements.
b. Cons: Rule changes in general require a significant amount of staff resources, which could be used for other program implementation activities.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
281.58 (2), Wis. Stats., contains the statutory authority for the Department of Natural Resources to promulgate rules for administration of the CWFP.
Section
281.58 (2), Wis. Stats., reads as follows:
(2) Rules. The department shall promulgate rules that are necessary for the proper execution of its responsibilities under this section.
The EIF is administered cooperatively by the Wisconsin DNR and Department of Administration (DOA). Revisions to ch.
NR 162 must also be coordinated with s.
281.59, Wis. Stats., to ensure consistency with DOA policies and procedures.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
We estimate the following time needed by staff from the following Bureaus to revise ch.
NR 162:
Community Financial Assistance 240 hours
Watershed Management 80 hours
Legal Services 40 hours
Management & Budget 4 hours
Science Services 4 hours
TOTAL: 368 hours
6. List with Description of all Entities that may be Affected by the Proposed Rule
• Wisconsin municipalities (cities, towns, villages, sanitary districts, lake rehabilitation & protection districts, counties, tribes, Metropolitan Sewerage Districts) — CWFP applicants.
•
Bond counsels — Hired by applicants to prepare municipal bond documents for CWFP loan closings.
• Consulting engineers — Hired by applicants to plan, design, conduct bidding process, oversee construction and coordinate various players — including financial assistance agencies — in the projects.
• Financial advisors — Hired by applicants to advise them on best financial options for interim financing and permanent project financing.
• Municipal attorneys — Hired by applicants to prepare statements required by the CWFP for proof of land ownership and to provide legal advice related to other loan related documents and issues.
• Construction contractors & subcontractors — Awarded bids by applicants to construct necessary infrastructure projects; must follow certain program requirements such as paying Davis-Bacon wage rates, and soliciting and reporting utilization of disadvantaged business enterprises.
• DNR Bureau of Watershed Management — Provides technical expertise on wastewater issues, and storm water and other nonpoint issues, cooperates with CWFP staff in setting overall program priorities, conducts environmental/historical/archaeological reviews, and reviews project plans and specifications and parallel cost estimates.
• DNR Bureau of Legal Services — Provides legal counsel on proposed rule revisions and for CWFP interpretations or actions related to unclear issues.
• DOA Capital Finance Office — Administers the CWFP in cooperation with DNR.
• DOA Community Development Block Grant (CDBG) Program — Works cooperatively with the CWFP to provide special funding packages for municipalities that need assistance from more than one funding agency on a project.
• Wisconsin DOT Regional Offices and Division of Transportation System Development — Provide bidding and contract documentation to the CWFP for projects let by DOT.
• U.S. Bureau of the Census — Provides income and other data needed for decision-making related to hardship financial assistance eligibility and amount of subsidy municipalities receive.
• USDA Rural Development Wisconsin — Works cooperatively with the CWFP to provide special funding packages for municipalities that need assistance from more than one funding agency on a project.
• Wisconsin Rural Water Association — Provides training and assistance for wastewater operators and municipal officials; carries out contract work related to the Clean Water Act goals; works cooperatively with the CWFP and other funding agencies to help its members finance their wastewater infrastructure projects.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Clean water state revolving fund (CWSRF) programs in each state must comply with the Clean Water Act, federal regulations under
40 CFR Part 35, EPA Guidelines and grant conditions specific to each annual capitalization grant the state receives. In addition, in recent years, additional requirements have been added through appropriations bills. The existing rule was developed to comply with the federal regulations that were in place at that time. However, since the rule has not been revised for 10 years, there are inconsistencies that need to be corrected. The following federal requirements will be addressed as ch.
NR 162 is revised:
•
Loan recipient consistency with all federal cross-cutting authorities, including laws and executive orders such as the Davis-Bacon Act, Archaeological and Historic Preservation Act, Endangered Species Act, National Historic Preservation Act, Wild and Scenic Rivers Act, the Debarment and Suspension Executive Order 12549, Uniform Relocation and Real Property Acquisition Policies Act, and the Equal Employment Opportunity Executive Order 11246.
•
Need for annual Intended Use Plan and public time for review and comment before submitting it to EPA for approval.
•
Requirement to expend all funds in the SRF in an expeditious and timely manner.
• Financing for land acquisition only if the land is integral to the treatment process.
•
Need for environmental reviews of sites where projects will occur.
• Requirement for 20% Wisconsin match to the Federal capitalization grant each year.
Revisions to ch.
NR 162 will better refine how the CWFP complies with federal regulations, EPA guidelines, and conditions of the CWFP's annual federal capitalization grant. Over the years of operating the program, CWFP staff have found that a number of areas in ch.
NR 162 could be improved and streamlined by fairly (minimal) changes, by updating sections that may currently include cumbersome procedures that impact the design engineering and construction industry, and by aligning various sections with federal regulations and guidelines that have been modified over time. For example, Congress included in recent annual appropriations bills that Davis-Bacon wages must be paid to workers. Ch.
NR 162 will need to accommodate these types of changes now and in the future.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
Revisions to ch.
NR 162 will likely have a positive impact on small businesses. It would keep municipal infrastructure projects moving, which would mean more engineering and construction jobs available. It would also remove some uncertainty regarding requirements that must be followed for the engineering and construction companies involved in CWFP projects; DNR would be able to relay Congressional changes to these businesses more quickly each year.
Contact Person
Jeanne Cargill, 608-267-7587.
Natural Resources
Environmental Protection—General, Chs.
100—
(DNR # CF-12-13)
This statement of scope was approved by the governor on April 3, 2013.
Rule No.
Revises chapter NR 166.
Relating to
Safe Drinking Water Loan Program.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
2. Detailed Description of the Objective of the Proposed Rule
Chapter
NR 166 is the administrative rule for the Safe Drinking Water Loan Program (SDWLP), which provides loans to local units of government to finance drinking water infrastructure projects.
The main objectives of ch.
NR 166 revisions are:
• To update areas of the code that are no longer in line with federal regulations or state statutes, including but not limited to the following:
• Procurement including solicitation of disadvantaged businesses.
• Types of assistance available.
• Project and cost eligibility.
• To provide needed efficiency, accuracy or clarity changes, including but not limited to the following:
• Engineering report.
• Loan application.
• Financial assistance requirements.
• Loan interest rates including median household income information.
• Amendments to a financial assistance agreement, and
• Flexibility with respect to the types of financial assistance available, annual funding policy, and project and cost eligibility.
Additional improvements to ch.
NR 166 may be identified by the Advisory Committee that will be convened to assist in the rule revision process.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
A. Existing Policies Relevant to the Rule:
The current ch.
NR 166 includes many policies that will not be changed. Many of these policies are based in federal requirements that have evolved over the years. Some existing policies are specified in the related state statutes. The current ch.
NR 166 is relatively prescriptive in nature. We expect that discussions with the Advisory Committee will yield recommendations for retaining many existing policies, eliminating some archaic policies, and including new policies so that the SDWLP is in compliance with Federal requirements. Revisions to ch.
NR 166 must maintain compliance with the following federal requirements:
1)
Use at least 15% of the funds available each year to provide loan assistance to small systems that serve fewer than 10,000 persons.
2) Finance only infrastructure projects of community or nonprofit non-community water systems needed to achieve or maintain compliance with Safe Drinking Water Act requirements or to significantly further the health protection objectives of the Act.
3) Comply with all federal cross-cutting authorities and require loan recipients to comply with crosscutters. Crosscutting authorities include laws and Executive Orders such as the Davis-Bacon Act, Archaeological and Historic Preservation Act, Clean Water Act, Endangered Species Act, National Historic Preservation Act, Wild and Scenic Rivers Act, the Debarment and Suspension Executive Order 12549, Uniform Relocation and Real Property Acquisition Policies Act, and the Equal Employment Opportunity Executive Order 11246.
4) Prioritize projects each year giving top priority to projects that: (a) address the most serious risks to human health; (b) are necessary to ensure compliance with the requirements of the Safe Drinking Water Act; and (c) assist systems most in need, on a per household basis.
5) Provide financing for land acquisition only if the land is integral to the project and is purchased from a willing seller.
6) Provide financing for a system only if the owner has (or will have with appropriate changes in operation) the technical, managerial, and financial capability to keep the system in compliance with the Safe Drinking Water Act.
7) Deny assistance for any system that is in significant noncompliance with any national drinking water regulation unless the state determines the project will enable the system to return to and be able to maintain compliance.
8) Determine the primary purpose of each project, and deny assistance for any project for which the primary purpose is fire protection or expansion for future growth.
9) Conduct environmental reviews of the sites on which projects will take place.
B. New Policies Proposed to be Included in the Revised Rule:
Through discussions with our partners, customers, and the Advisory Committee, new policies will be identified for inclusion into ch.
NR 166, including some federal requirements that are specified as part of annual federal appropriation bills.
For example, it may be recommended that SDWLP policy changes are more efficiently modified if they are included in the annual
Intended Use Plan (IUP). The IUP
undergoes
public review and comment prior to being submitted to the DNR Secretary and EPA for approval. Examples of policies that could be included in the IUP instead of ch.
NR 166 include project scoring system priorities, “green project" reserve determinations, and additional subsidization requirements.
C. Analysis of Policy Alternatives:
1) Do Nothing — leave ch.
NR 166 as it is.
a. Pros: This alternative would mean no rule revisions are necessary and staff resources will not be diverted from program implementation.
b. Cons: The absence of rule revisions will mean that ch.
NR 166 is still out of compliance with Federal fund requirements. Our inability to revise the rule means we must continue issuing variances for portions of the program that are inconsistent with new federal requirements.
2) Incorporate policy changes into ch.
NR 166.
a.
Pros: Many areas of ch.
NR 166 can be improved or streamlined with fairly minor changes. Some of these changes are the result of federal requirements. In addition, incorporating changes that are discussed with DNR partner bureaus and external partners will help streamline the program, build better efficiencies for all, ensure consistency with federal requirements, and provide assurances to EPA that our program is meeting those requirements.
b. Cons: Rule changes in general require a significant amount of staff resources, which could be used for other program implementation activities.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Sections
281.61 (12) (a) and
(b), Wis. Stats., contain the statutory authority for the Department of Natural Resources to promulgate rules for administration of the SDWLP and read as follows:
(12) Duties Of The Department. The department shall do all of the following:
(a) Promulgate rules establishing eligibility criteria for applicants and projects under this section.
(b) Promulgate rules that are necessary for the execution of its responsibilities under the safe drinking water loan program.
The Environmental Improvement Fund, which includes the SDWLP, is administered cooperatively by the Wisconsin DNR and Department of Administration (DOA). Revisions to ch.
NR 166 must also be coordinated with s.
281.59, Wis. Stats., in order to avoid conflict with the statutes.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The following estimates of staff time needed to complete the rule revision process include:
Bureau of Community Financial Assistance 240 hours
Bureau of Drinking Water & Groundwater 120 hours
Legal Services 40 hours
Management & Budget and Science Services 4 hours
Total estimated time for this rule revision 404 hours
6. List with Description of all Entities that may be Affected by the Proposed Rule
•
Wisconsin local governmental units (cities, towns, villages, sanitary districts, lake rehab & protection districts, water authorities, counties) — SDWLP applicants.
•
Bond counsels — Hired by applicants to prepare municipal bond documents for SDWLP loan closings.
•
Consulting engineers — Hired by applicants to plan, design, conduct bidding process, oversee construction and coordinate various players — including financial assistance agencies — in the projects.
•
Financial advisors — Hired by applicants to advise them on best financial options for interim financing and permanent project financing.
•
Municipal attorneys — Hired by applicants to prepare statements required by SDWLP for proof of land ownership and to provide legal advice related to other loan related documents and issues.
•
Construction contractors & subcontractors — Awarded bids by applicants to construct necessary infrastructure projects; must follow certain program requirements such as paying Davis-Bacon wage rates, and soliciting and reporting utilization of disadvantaged business enterprises.
•
DNR Bureau of Drinking Water & Groundwater — Provides technical expertise on drinking water issues, cooperates with SDWLP staff in setting overall program priorities, determines annual project priority scores, and reviews project plans and specifications.
• DNR Bureau of Endangered Resources — Conducts environmental reviews for SDWLP projects and shares findings with SDWLP staff.
• DNR Bureau of Facilities & Lands — Conducts review of project areas to determine impacts to historical/archaeological sites and shares findings with SDWLP staff.
•
DNR Bureau of Legal Services — Provides legal counsel on proposed rule revisions and for SDWLP interpretations or actions related to unclear issues.
• DOA Capital Finance Office — Administers the SDWLP in cooperation with DNR.
• DOA Community Development Block Grant (CDBG) Program — Works cooperatively with the SDWLP to provide special funding packages for local governmental units that need assistance from more than one funding agency on a project.
•
Wisconsin Historical Society (SHPO) — Provides expertise in historical/archaeological issues related to project sites.
• Wisconsin DOT Regional Offices and Division of Transportation System Development — Provide bidding and contract documentation to the SDWLP for projects let by DOT.
• Wisconsin Public Service Commission — Sets rates for applicant municipalities' water systems; works cooperatively with the SDWLP to assure applicants will be able to collect enough user fees to make scheduled payments on the SDWLP loan.
• U.S. Bureau of the Census — Provides income and other data needed for decision-making related to project priority scores and amount of subsidy municipalities receive.
• USDA Rural Development Wisconsin — Works cooperatively with the SDWLP to provide special funding packages for local governmental units that need assistance from more than one funding agency on a project.
• Wisconsin Rural Water Association — Provides training and assistance for water operators and municipal officials; carries out contract work related to the Safe Drinking Water Act goals; works cooperatively with the SDWLP and other funding agencies to help its members finance their water infrastructure projects.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Drinking water state revolving loan programs in each state must comply with the Safe Drinking Water Act and Amendments, federal regulations under
40 CFR Parts 9 and 35, EPA Guidelines, and grant conditions specific to each annual capitalization grant the state receives. Our current statutes already include the major requirements for drinking water state revolving funds, as identified in Section 3. A. above.
Additional requirements have been imposed by the federal government through the federal appropriation process in recent years. For example, one of the federal regulations that impacts small businesses performing construction work is the requirement that Davis-Bacon wages must be paid to workers. Another example is the requirement to award additional subsidization.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
The proposed rule would likely have a positive impact on small businesses. It will help streamline processes and enhance the efficiency of funding municipal infrastructure projects. Construction of infrastructure projects has a direct link to engineering and construction jobs and helps local and state economies. The proposed rule would also remove some uncertainty regarding requirements that engineering and construction companies involved in SDWLP projects must follow, as DNR would be able to relay more quickly to businesses what Congress requires each year.
Contact Person
Jeanne Cargill, 608-267-7587.
Public Defender
This Statement of Scope was approved by the governor in writing on April 15, 2013.
Rule No.
Relating to
Creation of a Felony Diversion case category.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
Not applicable.
2. Detailed Description of the Objective of the Proposed Rule
This proposed rule will revise three sections of the PD administrative code to include a new “felony diversion" case category. This proposed case category will apply to cases in which the SPD and the prosecutor negotiate felony diversion agreements as an alternative to the filing of formal criminal charges.
SPD case categories reflect the anticipated cost of retained counsel and set the required payment amounts for legal representation. The proposed rule adds the felony diversion case category to three schedules: cost of retained counsel, s.
PD 3.02 (1); payment for legal representation, s.
PD 6.01; and discount option, s.
PD 6.02 (1). The SPD currently provides representation in diversion cases within the case category of “special proceedings." The SPD's data for felony diversion cases show that the attorney time required to handle these matters generally exceeds the time required to provide representation in other special proceedings. This new felony diversion case category will more accurately reflect the amount of time attorneys spend when representing clients in felony diversion cases.
The proposed rule will change neither the number nor the nature of cases in which the SPD appoints attorneys.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Policies relevant to this rule are consistent with existing polices regarding the cost of retained counsel and payment for legal representation. The anticipated cost of counsel reflects the likely cost for a prospective client to hire a private attorney. The SPD includes this amount in its determination of an applicant's financial eligibility for SPD services. The required payment for legal representation reflects the average attorney costs for the SPD in the respective case categories.
The anticipated cost of retaining counsel in special proceedings is $750, which reflects the expectation that these case categories are less time-intensive than most other cases. A felony diversion case category will reflect the greater time generally required to provide representation in the diversion of potential felony charges. The anticipated cost of retaining counsel for this new case category will be $1,500, which is a lower cost than the $2,200 to $17,500 for other felonies, but more than the $750 for special proceedings. s.
PD 3.02 (1).
The payment for legal representation in felony cases is $480 to $7,500, and for special proceedings it is $120; the payment for Felony Diversion cases will be $240. The discount payment for felony diversion cases will be $60, which is the same as other felony cases. ss.
PD 6.01 and
6.02 (1).
The SPD role in these felony diversion cases encompasses initial review with the client of the potential charges, negotiations leading to a diversion agreement, and follow-up with the client to assist the client in meeting the conditions of the agreement. The follow-up includes encouraging client participation in treatment and other programming, documenting client compliance, and reporting the client's progress to the District Attorney's office.
As part of the trend toward adopting evidence-based practices within the justice system, some counties have significantly expanded the use of pre-charging diversion agreements. These agreements generally occur after an arrest and after negotiations between the defense attorney and the prosecutor. Although diversion has historically been more prevalent in misdemeanor case, Milwaukee County has in recent years successfully diverted hundreds of potential non-violent felony charges. The SPD anticipates that other counties will follow this example and expand diversion of potential felony cases.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
The state public defender provides legal services for indigent individuals involved in the criminal justice system under ch.
977, Wis. Stats. This chapter requires the state public defender board to consider the anticipated costs of effective representation for the case category in which the person seeks representation and to promulgate rules for payments to the state public defender for that representation.
Section
977.02 (3) (a), Stats., requires the public defender board to consider the anticipated costs of effective representation for the type of case in which the person seeks representation.
Section
977.02 (4m), Stats., requires the state public defender board to promulgate rules for payments to the state public defender under s.
977.075, Stats.
Section
977.075, Stats., requires the state public defender board to establish by rule a fee schedule that sets the amount that a client responsible for payment shall pay for the cost of the legal representation if the client does not pay the applicable discount fee. The schedule must establish a fee for a given type of case, and the fee for a given type of case must be based on the average cost, as determined by the board, for representation for that type of case.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The proposed rule will require minimal state employee time. The proposed rule adds the felony diversion case category to three schedules: the cost of retained counsel, s.
PD 3.02 (1); payment for legal representation, s.
PD 6.01; and discount option, s.
PD 6.02 (1).
6. List with Description of all Entities that may be Affected by the Proposed Rule
This rule is applicable only to individual SPD clients. The rule will require individuals who are represented in felony diversion cases to pay $240 toward the cost of their representation, which is lower than for other felony cases. This increased cost reflects the significant time attorneys invest in felony diversion cases. Clients also have the option to pay a lower discount amount of $60 as provided in s.
PD 6.02 (1).
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
The SPD is not aware of any existing or proposed federal regulation that addresses the case categories of the Wisconsin SPD.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
As this rule would impact only individual clients of the SPD, there is no anticipated economic impact of implementing the rule. There is no likelihood of a significant economic impact on small businesses.
Contact Person
Devon M. Lee, Legal Counsel, 315 N. Henry Street, 2
nd Floor, Madison, WI 53703. (608) 261-0633.
leede@opd.wi.gov.
