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.
