2. The demand for construction site permitting services has increased both in number of permits and complexity of projects since 2003. There is increased demand for technical assistance on complex projects and technical standards incorporating new technology.
3. The department is required to charge storm water fees proportional to the cost of program administration. The current construction fees support 16% of construction program costs. In comparison, fees collected for municipal permits cover 48% of municipal program costs and those collected for industrial permits cover 65% of industrial program costs.
4. Costs associated with increased efficiencies in permit turnaround time during the past decade are not sustainable at the current level of funding. Developing the e-permitting system reduced notice of intent turnaround time from 31 days to 17 days. Ongoing support of the system is expected to cost about $31,000 annually.
6. Increasing fees will allow the program to provide a more consistent level of service to permit applicants. In 2020, the department received the second highest number of construction site NOIs in all the years that the program has existed while also incurring a GPR funding lapse.
7. Fees are a small portion of overall project costs. Permits only apply to projects that are expected to disturb one acre or more of land for construction activities individually or as part of a larger common plan of development. Typical permitted projects have construction costs that exceed $1 million.
The remainder of the changes to ch. NR 216 are focused on ensuring consistency with federal rules and state statutes and are not based on data or analysis. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The economic impact analysis was developed using information from several sources. The number and type of entities potentially impacted were determined through reports from the database the department uses to track discharge permits. Municipal program update costs were developed using averages from recent urban non-point source grant application budgets for similar work. Hourly rates were based on information from the bureau for labor statistics. Costs incurred will primarily be due to additional information requested from municipal separate storm sewer permittees to conform to federal regulations, storm water pollution prevention plan updates for industrial sites with ongoing grading and increases to construction site permit fees. The following economic impact statements for related federal rules and state statutes were also referenced:
Methods for developing the economic impact and impact to small businesses are described in more detail in this rule’s Fiscal Estimate/Economic Impact Analysis.
11. Effect on Small Business (initial regulatory flexibility analysis):
This rule’s net impact on small business is expected to be $112,000. This includes $2,400 in postage savings due to electronic permitting, $30,200 in costs to industrial permittees with small businesses to update storm water pollution prevention plans, and $84,200 in increased construction site permit fees and additional information required with the permit application.
For the construction subprogram, it was assumed that small businesses were most likely to be associated with the smallest sites. For the construction permit application fee updates, a separate category was created for sites with under 2 acres of land disturbance. The application fee for this category was increased at a lower rate compared to sites over 2 acres to limit impacts to small businesses and local government entities.
12. Agency Contact Person:
Amy Minser
Wisconsin Department of Natural Resources
Bureau of Watershed Management, WT/3
101 S. Webster St.
P.O. Box 7921
Madison, WI 53707-7921
608/266-4359
13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, fax or email to the contact information listed above.
RULE TEXT
Section 1. NR 216.002 (1m), (7m), (12m), (18m), (19m), (23m), (25m), (36m), (37m), (39g), and (39r) are created to read:
NR 216.002 (1m) “Benchmark" means a minimum numeric or narrative level of pollution control required to demonstrate progress toward a required level of pollution control.
(7m) “Exceptional resource water” or “ERW" means waters designated under s. NR 102.11. (12m) “Individual permit” means a permit for the discharge of pollutants by an individual or group issued by the department under s. 283.33, Stats. (18m) “Notice of intent” or “NOI” means an application for coverage under a WPDES permit. Except as otherwise provided in this chapter, NOI and application mean the same thing.
(19m) “Outstanding resource water” or “ORW" means waters designated under s. NR 102.10. (23m) “Pollutant of concern" means a pollutant that has been identified as contributing to a water quality impairment of an impaired water.
(25m) “Receiving water” means the portion of a surface water that will be affected by an existing, proposed new, or increased discharge. Receiving water includes downstream surface waters that are affected by the discharge.
(36m) “TMDL implementation plan" means a list of specific and identifiable steps and actions a permittee intends to undertake and complete to meet a TMDL wasteload allocation.
(37m) “Total Suspended Solids” or “TSS” means settleable solid material that is transported by runoff or suspended within runoff.
(39g) “US EPA" means the United States environmental protection agency.
(39r) “Wasteload allocation" means the allocation resulting from the process of distributing or apportioning the total maximum load to each individual point source discharge.
Section 2. NR 216.003 (1) is amended to read:
NR 216.003 NR 216.003(1)(1) Conditions and duration. In addition to the terms and conditions listed under this chapter, if the department issues a storm water discharge general permit is issued, it may in the permit require compliance with the terms and conditions identified in s. NR 205.08. The term of the permit shall be at least 2 years but no longer than 5 years in duration. Section 3. NR 216.003 (3) is created to read:
NR 216.003 (3) COVERAGE UNDER SUBSEQUENT PERMIT. Unless notified otherwise by the department, general permittees covered under subchs. II and III shall remain covered under an expired general permit or conveyed coverage under a reissued general permit as described under s. NR 205.08 (9) (a). Section 4. NR 216.005 (Note) is amended to read:
NR 216.005 Note: Pursuant to the requirements to maintain the long-term storm water management practices in accordance with ss. NR 151.12 and to 151.128 and 151.24 to 151.249, the department may take enforcement action under this section and s. 281.98, Stats., against a land owner for not maintaining long-term storm water management practices. Section 5. NR 216.006 is created to read:
NR 216.006 Electronic reporting of information. (1) The department shall provide an electronic reporting system to receive information from WPDES permit applicants and WPDES permittees as required in subchs. I to III. The electronic reporting system shall comply with s. Adm 12.05 and include electronically fillable forms developed by the department. (2) Persons applying for permit coverage under ss. NR 216.03, 216.22, 216.43 shall submit a notice of intent to discharge under a general WPDES permit or an application for coverage under a WPDES permit via the system created under sub. (1) unless granted a waiver under sub. (6) or (7). (3) Persons applying for a no exposure certification under s. NR 216.21 (3) shall submit the information required under s. NR 216.21 (3) (b) 3. via the system created under sub. (1) unless granted a waiver under sub. (6) or (7). (4) The department may require permittees to utilize the system created under sub. (1) to submit documents and forms required under subchs I to III as needed to comply with s. 283.43 (1) (b), Stats., unless granted a waiver under sub. (6) or (7). (5) The department may include terms and conditions in WPDES permits issued under this chapter to require permittees to utilize the system created under sub. (1) to submit documents and forms required by the permit to the department as needed to comply with s. 283.43 (1) (b), Stats., unless granted a waiver under sub. (6) or (7). (6) The department may establish an episodic waiver from electronic reporting requirements for an owner, operator, or authorized representative of the regulated facility or entity in an area affected by a large-scale emergency, natural disaster, or during electronic reporting system outages lasting more than 96 hours. The department shall notify eligible parties and identify a period of up to 60 days for which the episodic waiver is in effect. The notification shall also identify whether delayed electronic submittals are allowed, if paper submittals are required, and a mailing address for paper submittals to be sent, if applicable.
(7) Any owner, operator, or authorized representative of the regulated facility or entity required to submit information electronically under subs. (2) to (5) may apply for a temporary or permanent waiver from electronic reporting through the following process:
(a) To apply for an electronic reporting waiver, the owner, operator, or authorized representative of the regulated facility or entity shall submit all of the following information in writing via certified or registered mail to the department of natural resources storm water program at WT/3, PO Box 7921, Madison, WI 53707-7921:
1. Name and contact information for the person requesting the waiver.
2. Facility or site name.
3. WPDES permit number, if applicable or the type of submittal the applicant is requesting a waiver for.
4. Facility or site address.
5. Brief statement regarding the basis for claiming a waiver.
6. Any other information required by the department.
7. Signature of the landowner, operator, or authorized representative.
(b) Within 14 business days of receipt of a complete request for a waiver, the department shall determine whether to grant a temporary or permanent waiver and provide notice of the determination to the owner, operator, or authorized representative submitting the waiver request. If the waiver is granted, the department’s notice shall include all applicable forms, identify the mailing address for the submission of the information under subs. (2) to (4) and identify which submittals shall be sent via registered or certified mail. In determining whether to grant the waiver, the department shall consider all of the following:
1. For temporary waivers effective for up to 5 years, whether mandatory electronic reporting is technically infeasible due to lack of sufficient broadband availability or will otherwise be unduly burdensome or costly.
2. For permanent waivers, whether mandatory electronic reporting is an infringement of religious practices, such as for a facility owned or operated by members of religious communities that choose not to use computers, electricity, or internet services.
(8) Approved waivers under subs. (6) and (7) are not transferable.
Section 6. NR 216.007 is created to read:
NR 216.007 Water quality standards. The department, in individual and general WPDES permits issued under subchs. I to III, shall specify the terms and conditions under which storm water may be discharged to waters of the state for the purpose of achieving and implementing water quality standards contained in chs. NR 102 to 105, 140, and 207. The department, in individual and general permits issued under subchs. I to III, shall include an expression of the applicable wasteload allocation consistent with the assumptions and requirements laid out in the TMDL.
