Chapter NR 162

NR 162.13(3) (3) Withholding of funds. The department may withhold funds on the basis of any of the following:

NR 162.13(3)(a) (a) The department may direct DOA to withhold financial assistance disbursements if the department determines that a recipient has failed to comply with project objectives or the terms, conditions, or reporting requirements of the financial assistance agreement.

NR 162.13(3)(b) (b) The department may withhold 5 percent of the principal amount of a loan until all of the project closeout requirements under sub. (4) (b) are completed.

NR 162.13(3)(c) (c) The department may withhold payment of costs that fall outside of the beginning or end dates of a contract or that are in excess of the estimated not-to-exceed amount in the contract until the recipient amends the contract.

NR 162.13(3)(d) (d) The department may withhold payment of costs of a contract until the recipient submits the required documentation for the costs, including a copy of the department construction management engineer’s approval letter for any change order for which payment is requested and any amendments to engineering or other professional services contracts for which disbursement of financial assistance for costs of the contract will be requested.

NR 162.13(4) (4) Final disbursement and project closeout.

NR 162.13(4)(a) (a) The recipient shall submit the final request for disbursement as soon as is practicable after final completion of project construction.

NR 162.13(4)(b) (b) All of the following project closeout procedures shall occur prior to the final disbursement or as soon as is practicable after final completion of project construction if the recipient determines it will not be requesting any additional funds but did not previously label a request for disbursement as the final request:

NR 162.13(4)(b)1. 1. The department shall complete a final inspection and sign off on the scored project.

NR 162.13(4)(b)2. 2. The recipient shall submit to the department for review all change orders and amendments for all contracts associated with the project that the recipient did not submit before or during construction of the project.

NR 162.13(4)(b)3. 3. The recipient shall certify its acceptance of the project from its contractors and engineers on a form provided by the department.

NR 162.13 Note Note: A project acceptance certification form is available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921.

NR 162.13(4)(b)4. 4. The recipient shall document final utilization of MBEs and WBEs on a form provided by the department.

NR 162.13 Note Note: An MBE/WBE utilization form is available on the Environmental Improvement Fund website at dnr.wi.gov/Aid/EIF.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921. This form is also provided in the financial assistance agreement as an exhibit.

NR 162.13(4)(b)5. 5. The recipient shall certify its compliance with federal requirements as detailed in the financial assistance agreement.

NR 162.13(4)(b)6. 6. The recipient shall submit to the department a completed operations and maintenance manual certification checklist.

NR 162.13 Note Note: Operations and maintenance manual certification checklist forms are available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921.

NR 162.13(4)(b)7. 7. The department shall inform DOA of the recipient’s compliance with all applicable requirements of this chapter and the financial assistance agreement.

NR 162.13(4)(b)8. 8. After the department determines that the project closeout requirements under subds. 1. to 6. are completed, the department shall notify the recipient that the project is closed out, or, if there is a final disbursement yet to be sent to the recipient, the department shall notify the recipient of the date and amount of the final disbursement and that the project will be closed out on the date of the final disbursement.

NR 162.13(4)(c) (c) If construction of a project is complete prior to the CWFP loan closing for the project, the recipient shall submit project closeout documents within 90 days of the loan closing date.

NR 162.13(4)(d) (d) If the recipient does not provide the required documents for project closeout of a completed project to the department for any CWFP financial assistance agreement or any other financial assistance from the environmental improvement fund and applies for funding from the environmental improvement fund for another project, the department may deny financial assistance for the new project until the previous project is closed out according to requirements under this chapter.

NR 162.13 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.14 NR 162.14 Amendments to a financial assistance agreement.

NR 162.14(1) (1) Additional funding.

NR 162.14(1)(a) (a) General.

NR 162.14(1)(a)1. 1. ‘Additional assistance at end of project.’ The department may issue an amendment to a financial assistance agreement to provide additional financial assistance for eligible project costs incurred beyond the amount specified in the original financial assistance agreement. The department may process a request to provide additional financial assistance for a project only after the total remaining costs to complete the project can be reasonably determined.

NR 162.14(1)(a)2. 2. ‘Consistent with scope.’ To be eligible for additional financial assistance, any changes in the project necessitating the amendment must be consistent with the objectives and scope of the project as described in the original financial assistance agreement.

NR 162.14(1)(a)3. 3. ‘Plans and specifications approval.’ If there are changes in the project that require department approval of plans and specifications, the municipality shall obtain department approval prior to the amendment loan closing. Changes that necessitate an amendment must be due to unforeseen circumstances or approvable change orders to a project construction contract.

NR 162.14(1)(a)4. 4. ‘New financial assistance agreement.’ An amendment shall be in the form of a new financial assistance agreement tied to the original project through the budget and project description. The department and the DOA shall determine the appropriate interest rate for the amendment based on the market interest rate in effect on the date of the municipality’s meeting at which they pass the related bond resolution.

NR 162.14(1)(a)5. 5. ‘Debt coverage requirements.’ The municipality must meet debt coverage requirements for the additional financial assistance.

NR 162.14(1)(b) (b) Applicability. Additional financial assistance under par. (a) for a scored project is subject to all of the following:

NR 162.14(1)(b)1. 1. ‘Availability of funds as determined under s. 281.59, Stats.’ If there are sufficient loan funds available, a municipality may receive loan funds for additional project costs incurred that cause the total eligible project costs to be greater than the amount provided in the original financial assistance agreement. The loan interest rate and loan maturity date shall be determined by the department and DOA.

NR 162.14(1)(b)2. 2. ‘No principal forgiveness.’ The department shall not provide additional principal forgiveness funds in the amendment to the financial assistance agreement.

NR 162.14(1)(c) (c) Requesting funds. A municipality may request financial assistance for additional project costs using any of the following options:

NR 162.14(1)(c)1. 1. ‘Request in writing.’ The municipality shall submit a written request to the department that justifies the need for additional financial assistance and details the additional eligible costs. A revised budget shall be submitted with the request indicating in one column the line item totals in the financial assistance agreement, in a second column the requested additional costs, and in a third column the total project costs requested to be funded through the CWFP via an amendment to the original financial assistance agreement. If there are other funding sources participating in the project, the revised budget shall indicate all funding changes applicable to the additional financial assistance being requested. All costs in the revised budget shall be assigned to the appropriate budget line items from which disbursement will be requested.

NR 162.14(1)(c)2. 2. ‘Electronic submittal.’ The department may require the written request for an amendment to be submitted as an email message with an attachment, as input into the department’s online application system, or by other appropriate means determined by the department.

NR 162.14(1)(d) (d) Plans and specifications. A municipality shall submit to the department any plans and specifications required for changes in the project that necessitate the amendment to the financial assistance agreement. The department shall issue an amendment for the additional project costs only after the department approves any facilities plans or plans and specifications required for the work related to the additional costs.

NR 162.14(1)(e) (e) Notice of intent to apply. A new notice of intent to apply for funding as described under s. NR 162.05 (1) is not required for purposes of requesting a financial assistance agreement amendment.

NR 162.14(2) (2) Effective date. A financial assistance agreement amendment is effective when executed by all parties to the agreement.

NR 162.14 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.15 NR 162.15 Disputes.

NR 162.15(1) (1) Decision of the department. Except as otherwise provided by law, any dispute arising under subch. II, III, IV, or V prior to the execution of a financial assistance agreement or interest rate subsidy agreement shall be decided in writing by the department. The department shall serve a copy of the decision on the applicant personally or by mail.

NR 162.15(2) (2) Review of the decision. A final decision of the department may be reviewed under subch. III of ch. 227, Stats., and ch. NR 2.

NR 162.15 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.16 NR 162.16 Records and record retention.

NR 162.16(1) (1) Requirements. The recipient shall maintain CWFP project-related books, documents, papers, records, and accounting procedures in accordance with generally accepted accounting principles, governmental accounting standards board requirements, or another method of accounting accepted by the department or required by the federal government and authorized under the financial assistance agreement and ch. Adm 35, and retain them in accordance with subch. II of ch. 19, Stats. The recipient shall require contractors, including contractors for professional services, to maintain CWFP project-related books, documents, papers, and records that are necessary for the recipient’s compliance with this section.

NR 162.16(2) (2) Inspection. The department or its agents may, during normal business hours, inspect and copy the recipient’s CWFP project-related records and the project-related records of its contractors.

NR 162.16(3) (3) Records retention.

NR 162.16(3)(a) (a) The recipient and its contractors shall retain and make all files, books, documents, and records relating to the construction of the scored project available to the department for a minimum of either 3 years from the date the department notifies the recipient that the project closeout is complete or 3 years from final completion of construction, whichever is later.

NR 162.16(3)(b) (b) If a financial assistance agreement is partially or completely terminated, the records relating to the work terminated shall be kept and made available for a period of 3 years from the date of any resulting final termination settlement.

NR 162.16(3)(c) (c) Records that relate to appeals, disputes, or litigation arising out of the performance of the project shall be retained until any appeals, disputes, or litigation have been finally resolved or for a period of 3 years from the date the department notifies the recipient under s. NR 162.13 (4) (b) 8. that the project closeout is complete, whichever is later.

NR 162.16(3)(d) (d) All other files and records relating to the scored project shall be retained so long as the financial assistance agreement for the project remains in effect. As-built plans for the project shall be retained for at least the useful life of the project.

NR 162.16(4) (4) Federal single audit. Recipients of financial assistance provided directly from the federal capitalization grant shall comply with federal single audit requirements established in 31 USC 7501 to 7506, 2 CFR part 200 subpart F, and ch. Adm 35.

NR 162.16 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.17 NR 162.17 Breach of contract.

NR 162.17(1) (1) Upon breach of contract by the recipient, the department may do any of the following:

NR 162.17(1)(a) (a) Declare the unpaid loan balance due and immediately payable.

NR 162.17(1)(b) (b) Increase the interest rate on the unpaid balance of the loan to the market interest rate in effect on the date the financial assistance agreement was executed.

NR 162.17(1)(c) (c) Rescind any grant and convert the grant amount to a loan.

NR 162.17(1)(d) (d) Immediately terminate the financial assistance agreement and disburse no additional funds if the financial assistance has not been fully disbursed.

NR 162.17(1)(e) (e) Seek an injunction or any other equitable or judicial relief from a court of appropriate jurisdiction.

NR 162.17(1)(f) (f) Seek any other appropriate administrative remedy.

NR 162.17(2) (2) DOA’s receipt of any payment after the occurrence of a breach of contract does not constitute the department’s waiver of any rights and remedies under this section.

NR 162.17 Note Note: DOA may under s. 281.59 (11) (b), Stats., seek recovery of some or all financial assistance payments by deducting those amounts from any state payments due to a municipality, or by adding a special charge to the amount of taxes apportioned to and levied upon the county under s. 70.60, Stats.

NR 162.17 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.18 NR 162.18 Noncompliance. Upon failure of the recipient to comply with s. 281.58 or 281.59, Stats., or with provisions of this chapter, the department may do any of the following:

NR 162.18(1) (1) Refuse to enter into a financial assistance agreement.

NR 162.18(2) (2) Seek penalties as provided in s. 281.59 or 281.98, Stats.

NR 162.18(3) (3) Seek any other appropriate remedy, relief, or penalty.

NR 162.18 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.19 NR 162.19 Variances.

NR 162.19(1) (1) General. The department may, on its own initiative or pursuant to a written request from an applicant, approve a variance from a requirement of this chapter when it determines that special circumstances make a variance in the best interest of the state. Any variance approved shall be consistent with the objectives of ss. 281.58 and 281.59, Stats.

NR 162.19(2) (2) Applicability. The department may only approve a variance from a non-statutory requirement of this chapter.

NR 162.19(3) (3) Request for variance. An applicant shall submit a request for a variance in writing to the department as soon as it is determined a variance is needed. Each request for a variance shall contain all of the following:

NR 162.19(3)(a) (a) The name of the applicant and CWFP project number.

NR 162.19(3)(b) (b) The section of this chapter from which the applicant seeks a variance and a statement explaining why the variance is necessary.

NR 162.19(3)(c) (c) An adequate description of the variance desired, and the facts that the recipient believes warrant the department’s approving the variance.

NR 162.19(3)(d) (d) A statement as to whether the recipient has previously requested the same or a similar variance, and if so, the circumstances of the previous request.

NR 162.19 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.20 NR 162.20 Administrative fees. An administrative fee, if one is imposed, shall be included in the biennial finance plan established under s. 281.59 (3), Stats., which is approved by the building commission under s. 13.48, Stats.

NR 162.20 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

subch. III of ch. NR 162 Subchapter III — Storm Water Projects

NR 162.21 NR 162.21 Applicability. This subchapter applies to applicants for and recipients of financial assistance for urban nonpoint source water pollution abatement or storm water runoff BMPs. Compliance with the applicable requirements of this subchapter is a prerequisite to receiving a financial assistance agreement under the CWFP for urban runoff and storm water BMP projects. In addition to the sections of this subchapter, all of the following sections in subchs. I, II, and V apply to projects receiving a financial assistance agreement from the CWFP for urban runoff and storm water BMP projects: ss. NR 162.001, 162.003, 162.01, 162.02, 162.055, 162.49 (3), and 162.50 to 162.52.

NR 162.21 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 162.22 NR 162.22 Project eligibility.

NR 162.22(1) (1) A municipality may receive financial assistance under this subchapter for a publicly owned project necessary to control storm water runoff pollution in order to achieve water quality standards, including publicly-owned storm water management projects on public or private land that are required by any of the following:

NR 162.22(1)(a) (a) A WPDES storm water permit issued under subch. I of ch. NR 216.

NR 162.22(1)(b) (b) A performance standard delineated under ch. NR 151.

NR 162.22(1)(c) (c) A storm water management plan or other applicable plan approved by the department for purposes of managing runoff.