REPEALING AND RECREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal and recreate NR 162 relating to the Clean Water Fund Program.
CF-13-13
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted, Statutory Authority and Explanation: Section 281.58(2), Wis. Stats., authorizes the department to promulgate rules necessary for the execution of its responsibilities under the Clean Water Fund program. This program provides financial assistance to municipalities for water infrastructure projects including wastewater treatment plants, collection systems and storm water systems. 2. Related Statutes or Rules: Concurrent with this effort, the department is also repealing and recreating ch. NR 166 relating to the Safe Drinking Water Loan Program. The Clean Water Fund Program and the Safe Drinking Water Loan Program are part of the Environmental Improvement Fund. 3. Plain Language Analysis: Revisions to ch. NR 162, Wis. Adm. Code, relating to the Clean Water Fund Program, clarify eligibility criteria, streamline processes, revise the scoring system, and update implementation issues since the rule was last revised. No new significant changes to the program result from the rule revisions. The main topics for revision include:
Eligible projects/activities - updates language to incorporate current practices
Dates for ITA/PERF submittals – changed to Oct 31st and allows for on-line submittals
PERF scoring system – revised system to incorporate permit limits, automate the scoring process, and require on-line, annual submittals
Interim financing costs - increased from $7500 to up to $15,000
Refinancing - clarifies that a municipality cannot already have “long-term affordable debt” outstanding for its completed or substantially completed project”; any project that has been substantially completed for more than 3 years is not eligible for financing.
Disadvantaged Business Enterprise – updated requirements to refer to federal requirements
Median Household Income – clarifies the source of this data as the American Community Survey (as part of the U.S. Census Bureau) and provides options for sanitary districts. 4. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: All state programs must comply with the federal requirements for the program, as outlined in 33 USC 1251 to 1376 and 33 USC 1381 to 1387. This rule complies with the requirements of the Federal Clean Water Act. 5. Comparison with Similar Rules in Adjacent States: Each state implements the Clean Water Act consistently with the associated state statutes and federal requirements. Each state loan program has unique features, but all of the programs are designed to meet federal Clean Water Act requirements. Each state has a unique priority scoring system based on state priorities but consistent with federal priorities. The EPA reviews program implementation to ensure consistency with the federal requirements.
6. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The implementation of the Clean Water Fund Program does not include regulatory activities. Refinements to the program were established with both internal and external advisory groups with the intent of streamlining processes and clarifying criteria for program implementation.
7. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: Rule revisions are expected to have minimal impact on small businesses, in that it streamlines existing processes and clarifies implementation criteria. Rule revisions to not contain any new requirements for small businesses.
8. Effect on Small Business (initial regulatory flexibility analysis): Minimal.
9. Agency Contact Person: Robin Schmidt, Bureau of Community Financial Assistance, 101 S. Webster Street, PO Box 7921, Madison WI 53707; robin.schmidt@wisconsin.gov; 608-266-3915 Section 1 NR 162 is repealed and recreated to read:
SUBCHAPTER I — GENERAL
NR 162.001 Purpose. The purposes of this chapter are all of the following:
(1) Establish rules under ss. 281.58 and 281.59, Stats., to implement and administer a financial assistance program for the engineering and construction of treatment works and best management practices. (2) Establish a priority system for distributing clean water fund program financial assistance as provided in s. 281.58, Stats., and the mechanisms and methodology to be used to modify the priority scoring system. (3) Establish rules under s. 281.58 (13), Stats., to implement and administer hardship financial assistance. (4) Establish rules under s. 281.58 (6) (b) 8., Stats., to implement and administer interest rate subsidies for loans issued by the board of commissioners of public lands for projects to engineer and construct treatment works and best management practices with total estimated project costs of $2,000,000 or less. Note: All forms necessary for funding under this chapter are available on the Environmental Improvement Fund website at dnr.wi.gov/Aid/EIF.html and in paper form from the Department of Natural Resources, Bureau of Community Financial Assistance, 101 S. Webster St., P.O. Box 7921, Madison, Wisconsin 53707–7921. The forms are also available on the Department of Natural Resources website.
NR 162.002 Applicability. This chapter applies to all applicants for and recipients of financial assistance for the engineering and construction of treatment works and best management practices made pursuant to ss. 281.58 and 281.59, Stats. Compliance with the applicable requirements of this chapter is a prerequisite to receiving financial assistance under ss. 281.58 and 281.59, Stats. NR 162.003 Definitions. In this chapter:
(1) “Amendment” means a formal, written change to an existing legal agreement or contract, executed by all parties to the original agreement or contract.
(2) “American Community Survey” or “ACS” means the nationwide survey conducted by the U.S. bureau of the census to collect demographic, social, housing, and economic data and produce 1-year, 3-year, and 5-year estimates based on population thresholds.
(3) “Applicant” means any municipality that applies for financial assistance under this chapter.
(4) “Approval” means the written approval of the department.
(5) “Best management practices” or “BMPs” has the meaning given in s. NR 151.002 (4). (6) “Block group” means a subdivision of a census tract made up of a cluster of blocks having the same first digit of their four-digit identifying numbers within the tract.
(7) “Board of commissioners of public lands” or “BCPL” means the organization comprised of the secretary of state, the state treasurer, and the attorney general that operates under the authority of ch. 24, Stats.
Note: The BCPL is also known as state trust funds.
(8) “Breach of contract” means the failure of the municipality to comply with any of the following:
(a) The terms and conditions of the financial assistance agreement or interest rate subsidy agreement.
(b) The terms and conditions of the municipal resolution authorizing the issuance and sale of bonds or notes to the clean water fund program.
(9) “Capital improvement” means construction resulting in improvements to real property or depreciable property, or both, or adding to the value or useful life of these assets, including structural improvements, such as constructing new treatment works or BMPs or modifying existing buildings or facilities, or improvements that enhance usefulness or productivity, including replacing an existing pump with a more efficient new pump.
Note: The following are examples of capital improvements: constructing permeable pavement or an infiltration pond to control runoff; constructing new clarifiers, aeration tanks, or other major components of a treatment works; upgrading existing equipment or installing new, more efficient process equipment, such as equipment for dewatering, aeration, scraping, skimming, or disinfection; constructing new process, administration, and storage buildings; adding to or constructing major renovations of existing facilities; replacing or rehabilitating aged or undersized sanitary sewer pipes; replacing a roof on a treatment plant building; constructing a new lift station or upgrading an existing lift station; installing security, a supervisory control and data acquisition system, or monitoring equipment as part of a scored project.
(10) “Census block” means the smallest unit for which the U.S. census bureau collects and tabulates population information in the decennial census and income information in the ACS.
(11) “Census designated place” means a statistical area delineated for each decennial census according to U.S. census bureau guidelines for the purpose of presenting census data and ACS data for a concentration of population, housing and commercial structures that is locally identifiable by name, but is not within an incorporated place.
(12) “Census tract” means a small, relatively permanent statistical subdivision of a county used in the decennial census and the ACS, delineated for the purpose of presenting data, typically following visible features or governmental boundaries or both, including approximately 4,000 inhabitants, and designed to be a relatively homogeneous unit with respect to population characteristics, economic status, and living conditions.
(13) “Change order” means an action that specifies and justifies a change to a construction contract that alters the time of completion, or the total price, or both.
(14) “Clean water fund program” or “CWFP” means the program established under ss. 25.43, 281.58 and 281.59, Stats., for the purpose of providing financial assistance to municipalities for the planning, design and construction of treatment works and BMPs. (15) “Commercial facility” means any facility that is used for retail stores, restaurants, office buildings, laundries and other private business and service establishments or similar enterprises.
(16) “Compliance maintenance” means the program established and regulated under ch. NR 208, intended to prevent a permittee under ch. 283, Stats., from exceeding an effluent limitation contained in a permit issued under ch. 283, Stats. (17) “Construction” means an action taken to make a capital improvement, including any of the following actions:
(a) Building, erecting, extending, or assembling a treatment works or BMP or a new major asset for an existing treatment works or BMP.
(b) Preparing the construction site or sites of a scored project for work activities. Site preparation includes grading, staking, and digging, and demolition or abandonment of existing structures.
(c) Purchasing a package wastewater treatment system or capacity in an existing treatment works.
(d) Altering, modifying, improving, upgrading, rehabilitating, or adding to existing treatment works facilities or BMPs.
(e) Performing major repairs or replacing major components of existing facilities.
(f) Installing new piping or mechanical, electrical, or electronic equipment or facilities.
(g) Remediation of illicit discharges to an MS4 or runoff treatment works.
(18) “Custom tabulation” means a special tabulation of income data from the ACS microdata files that is performed by the U.S. bureau of the census, is not part of the standard ACS data tabulations, and results in generation of a median household income for an area designated by the applicant as the boundaries of a town sanitary district, public inland lake protection and rehabilitation district, or metropolitan sewerage district, or of the area served by the treatment works if the treatment works serves only a portion of the place or minor civil division in which it is located.
(19) “Debt” means a financial liability that is subject to repayment and incurred to fund a project, including liabilities in the form of lines of credit, bond anticipation notes, general obligation bonds, revenue bonds, general obligation promissory notes, certificates of indebtedness, and special assessment bonds.
(20) “Department” means the department of natural resources.
(21) “Design flow” means the average annual flow or average daily flow specified in an approved facilities plan or approved plans and specifications, the flow specified in a WPDES permit, or the flow required to meet performance standards.
(22) “Disadvantaged business enterprise” or “DBE” means a business entity certified as disadvantaged under the U.S. department of transportation unified certification program or other program approved by the U.S. environmental protection agency to certify disadvantaged businesses.
(23) “Discharge” has the meaning given in s. 283.01 (4), Stats. Note: Under s. 283.01 (4), Stats., “discharge”, when used without qualification, includes a discharge of any pollutant. (24) “DOA” means the department of administration.
(25) “Effluent limitation” has the meaning given in s. 283.01 (6), Stats. Note: Under s. 283.01 (6), Stats., “effluent limitation” means any restriction established by the department, including schedules of compliance, on quantities, rates, and concentrations of chemical, physical, biological, and other constituents that are discharged from point sources into waters of this state. Flow rates and flow volumes are considered to be physical constituents restricted by WPDES permits.
